State Consumer Disputes Redressal Commission
Varinder Thakur vs 1. Sheetal Duggal on 19 June, 2014
STATE CONSUMER DISPUTES REDRESSAL COMMISSION, U.T., CHANDIGARH First Appeal No. : 230 of 2014 Date of Institution : 16.06.2014 Date of Decision : 19/06/2014 Varinder Thakur, Chairman/Secretary State Bank of India Staff Association having its office at 858, Shivalik Apartment, Sector 49-A, Chandigarh (now as SBI Cooperative Urban Salary Earners Thrift and Credit Society Limited). 2nd Address:- Varinder Thakur, working as Cashier with State Bank of India, SCONo.75-76, Sector 31-C, Chandigarh Appellant/Opposite Party No.2 V e r s u s 1. Sheetal Duggal wife of Anup Kumar and Anup Kumar husband of Sheetal Duggal both residents of House No.219, Dadu Majra Colony, Sector 38-West, Chandigarh. ..Respondents No.1 and 2/ Complainants 2. State Bank of India Staff Association having its office at 858, Shivalik Apartment, Sector 49-A, Chandigarh, through its Chairman/Secretary Sh.Varinder Thakur (now as SBI Cooperative Urban Salary Earners Thrift and Credit Society Limited). ....Respondent No.3/Opposite Party No.1 Appeal under Section 15 of the Consumer Protection Act, 1986. BEFORE: JUSTICE SHAM SUNDER (RETD.), PRESIDENT. MR. DEV RAJ, MEMBER.
MRS. PADMA PANDEY, MEMBER Argued by: Er. Sandeep Suri, Advocate for the applicant/appellant.
PER JUSTICE SHAM SUNDER (RETD.), PRESIDENT This appeal is directed against the order dated 26.10.2012, rendered by the District Consumer Disputes Redressal Forum-I, U.T., Chandigarh (hereinafter to be called as the District Forum only), vide which, it accepted the complaint, filed by the complainants (now respondents No.1 and 2), and directed the Opposite Parties (now one of which is the appellant/Opposite Party No.2), as under:-
i) To pay a sum of Rs.54,140/- to the complainants.
ii) To pay an amount of Rs.10,000/- to the complainants towards compensation and litigation expenses.
This order be complied with by the OPs within one month from the date of receipt of its certified copy, failing which, OPs shall be liable to refund the awarded amount to the complainants along with interest @ 9% p.a. from the date of filing of the complaint, till its realization.
2. The facts, in brief, are that the complainants deposited an amount of Rs.37,000/-, with the Opposite Parties, during the period 2008-09, against which, they were issued different FDRs, which matured on different dates. The details of the said FDRs, are as under :-
1. FDR No.9506 dated 23.7.2008 for a sum of Rs.10,000/- due date 22.7.2011.
2. FDR No.9619 dated 13.12.2008 for a sum of Rs.12,000/- due date 12.12.2011.
3. FDR No.9788 dated 9.7.2009 for a sum of Rs.15,000/- due date 8.7.2012.
As per the said FDRs, the amount was to be paid by the Opposite Parties, to the complainants, alongwith interest, after the date of maturity. The complainants came to know that various persons had deposited their money, with the Opposite Parties, but they did not pay any interest. It was stated that, therefore, the complainants, decided to withdraw amount of their FDRs. However, the Opposite Parties, did not allow the complainants, to withdraw the said amount of FDRs. Ultimately, the complainants served a legal notice dated 20.6.2012 Annexure C-4, upon the Opposite Parties, but to no avail. The complainants also approached the Assistant Registrar Cooperative Society, regarding this fact but he did not take any action against the Opposite Parties. It was further stated that the aforesaid acts of the Opposite Parties, amounted to deficiency, in rendering service, as also indulgence into unfair trade practice. When the grievance of the complainants, was not redressed, left with no alternative, a complaint under Section 12 of the Consumer Protection Act, 1986 (hereinafter to be called as the Act only), was filed, directing the Opposite Parties, to pay a sum of Rs.54,140/-; compensation, to the tune of Rs.20,000/-, towards damages, mental agony and physical harassment; and cost of litigation, to the tune of Rs.22,000/-.
3. Despite service, through Process Server, none put in appearance, on behalf of the Opposite Parties, as a result whereof, they were proceeded against exparte, by the District Forum, vide order dated 01.10.2012.
4. The complainants led evidence, in support of their case.
5. After hearing the Counsel for the complainants, and, on going through the evidence, and record of the case, the District Forum, accepted the complaint, in the manner, referred to, in the opening para of the instant order.
6. Feeling aggrieved, the instant appeal, has been filed by the appellant/Opposite Party No.2.
7. Alongwith the appeal, an application under Section 5 of the Limitation Act, for condonation of delay of 566 days, as per the applicant/appellant (as per the office report 556 days), was filed by him, stating therein that, no doubt, the order in the Consumer Complaint was passed by the District Forum, on 26.10.2012, and the appeal could be filed within a period of 30 days, i.e. latest by 25.11.2012. It was further stated that, that Sh. Gurdev Singh, Advocate was on the panel of the Society, of which the applicant/appellant, was the Secretary. It was further stated that the said Advocate had been representing all the cases of the said Society, since 2005. It was further stated that the applicant/appellant approached the said Advocate, in the month of November-December 2012, upon which, he was informed, that the order impugned had been passed against the Society only, with which he had no relation, at the relevant time. It was further stated that, however, in the month of March and April 2013, when summons/ warrants, in Execution Application, were received by the applicant/appellant, he again contacted the said Advocate. It was further stated that the said Advocate advised the applicant/appellant, to file a Writ Petition, against the order impugned, in the Punjab and Haryana High Court, at Chandigarh. On the advice of the said Advocate, the applicant/appellant hired the services of Sh. K.C. Chaudhary, Advocate, who filed Writ Petitions before the Punjab and Haryana High Court, at Chandigarh. It was further stated that initially, stay was granted, in the said Writ Petitions. However, later on, the Punjab and Haryana High Court, at Chandigarh, was pleased to dispose of the Writ Petitions, holding therein, that the Petitioner/applicant/appellant, had an efficacious, alternative remedy, under the provisions of the Consumer Protection Act, 1986. It was further stated that the applicant/appellant bonafidely trusted the legal advice, given to him, by the Advocates aforesaid, and pursued the Writ Petition, which ultimately was dismissed. It was further stated that, on account of this reason, there was delay in filing the appeal. It was further stated that delay, in filing the appeal, was neither intentional, nor deliberate. Accordingly, the prayer, referred to above, was made.
8. We have heard the Counsel for the applicant/appellant, on the application, for condonation of delay, as also, in the main appeal, at the preliminary stage, and have gone through the record of the case, carefully.
9. The first question, that falls for consideration, is, as to whether, there is sufficient cause for condonation of delay of 566 days, as per the applicant/appellant (as per the office report 556 days), in filing the appeal, under Section 15 of the Act or not. It was held in Smt.Tara Wanti Vs State of Haryana through the Collector, Kurukshetra AIR 1995 Punjab & Haryana 32, a case decided by a Full Bench of the Punjab and Haryana High Court, that sufficient cause, within the meaning of Section 5 of the Limitation Act, must be a cause, which is beyond the control of the party, invoking the aid of the Section, and the test to be applied, would be to see, as to whether, it was a bona-fide cause, in as much as, nothing could be considered to be bonafide, which is not done, with due care and attention. In New Bank of India Vs. M/s Marvels (India): 93 (2001) DLT 558, Delhi High Court, it was held as under:-
No doubt the words sufficient cause should receive liberal construction so as to advance substantial justice. However, when it is found that the applicants were most negligent in defending the case and their non-action and want of bonafides are clearly imputable, the Court would not help such a party. After all sufficient cause is an elastic expression for which no hard and fast guide-lines can be given and Court has to decide on the facts of each case as to whether, the defendant who has suffered ex-parte decree has been able to satisfactorily show sufficient cause for non- appearance and in examining this aspect, cumulative effect of all the relevant factors is to be seen.
10. In Oriental Insurance Co. Ltd. vs. Kailash Devi & Ors. AIR 19107 Punjab and Haryana 45, it was held as under:-
There is no denying the fact that the expression sufficient cause should normally be construed liberally so as to advance substantial justice, but that would be in a case where no negligence or inaction or want of bonafides is imputable to the applicant. The discretion to condone the delay is to be exercised judicially i.e. one is not to be swayed by sympathy or benevolence.
11. In R.B. Ramalingam Vs. R.B. Bhuvaneswari, 2009 (2) Scale 566, the Supreme Court observed as under:-
We hold that in each and every case the Court has to examine whether delay in filing the Special Leave Petitions stands properly explained. This is the basic test which needs to be applied. The true guide is whether the petitioner has acted with reasonable diligence in the prosecution of his appeal/petition.
12. In Balwant Singh Vs. Jagdish Singh and Ors, V (2010) SLT 790=III (2010) CLT 201 (SC), it was held as under:-
The party should show that besides acting bona fide, it had taken all possible steps within its power and control and had approached the Court without any unnecessary delay. The test is whether or not a cause is sufficient to see whether it could have been avoided by the party by the exercise of due care and attention. [Advanced Law Lexicon, P. Ramanatha Aiyar, 3rd Edition, 2005]
13. In Mahant Bikram Dass Chela Vs. Financial Commissioner and others, AIR 1977, S.C. 2221, it was held as under:-
Section 5 of the Limitation Act is a hard task-master and judicial interpretation has encased it within a narrow compass. A large measure of case-law has grown around Section 5, its highlights being that one ought not easily to take away a right which has accrued to a party by lapse of time and that therefore a litigation who is not vigilant about his rights must explain every days delay
14. In Ansul Aggarwal Vs. New Okhla Industrial Development Authority, 2012 (2) CPC 3 (SC) it was held as under:-
It is also apposite to observe that while deciding an application filed in such cases for condonation of delay, the Court has to keep in mind that the special period of limitation has been prescribed under the Consumer Protection Act, 1986, for filing appeals and revisions in Consumer matters and the object of expeditious adjudication of the Consumer disputes will get defeated, if this Court was to entertain highly belated petitions filed against the orders of the Consumer Foras
15. A bare reading of the first proviso, engrafted to Section 15 of the Act, makes it clear, that the material part of the language thereof, is pari-materia to Section 5 of the Limitation Act, 1963. Keeping in view the principle of law, laid down, in the aforesaid cases, it is to be seen, as to whether, the applicant/appellant, has been able to establish that it was on account of the circumstances, beyond his control, that he could not file the appeal, against the order dated 26.10.2012, in time. The appellant/Opposite Party No.2, very well knew that the only remedy available with him (applicant/appellant), against the order impugned, was to file an appeal, before this Commission. However, Opposite Party No.2, instead of challenging the order dated 26.10.2012, within 30 days, from the date of receipt of a certified copy thereof, by way of filing an appeal, before this Commission, adopted the wrong path, by filing the Writ Petition aforesaid, before the Punjab and Haryana High Court, at Chandigarh. Therefore, it could be said that the applicant/appellant was not diligent, in pursuing the matter, in the proper Forum. The prescribed period of limitation, as envisaged by Section 15 of the Act, for filing an appeal is 30 days, from the date of receipt of a certified copy of the order. The applicant/appellant did not act, with due diligence, resulting into delay of 566 days, (as per the office report 556 days), in filing the appeal, which is about more than eighteen times beyond the prescribed period of limitation. The cause, set up by the applicant/appellant, in the application, for condonation of delay, could not be said to be plausible. The delay, in filing the appeal was, thus, intentional, willful and deliberate. Since, no sufficient cause is constituted, from the averments, contained in the application, the delay of 566 days, (as per the office report 556 days), cannot be condoned. The principle of law, laid down, in the aforesaid cases, is fully applicable to the facts of the instant case. The application is, thus, liable to be dismissed.
16. The next question, that falls for consideration, is, as to whether, the applicant/appellant, was prosecuting his case, by filing a Writ Petition, against the order impugned, before the Punjab and Haryana High Court, in good faith and under bonafide belief. The answer to this question, is in the negative. As stated above, once, the order dated 26.10.2012, was passed, the only remedy which was available with the applicant/appellant, was to file an appeal before this Commission, but he did not do so, and, on the other hand, adopted the wrong course, by filing a Writ Petition, before the Punjab and Haryana High Court, at Chandigarh, which was ultimately dismissed by it, and, as such, the applicant/appellant, could not claim any benefit of the same. In M.I. Plywood Industries Vs Canara Bank I (2013) CPJ 17 (NC), the Revision Petitioner (Complainant) filed Revision Petition, before the National Consumer Disputes Redressal Commission, after a delay of 145 days. In the application, for condonation of delay, a plea was taken by the Revision Petitioner, that it had earlier challenged the order impugned, by way of filing Writ Petition No. 29255 of 2010 before the Honble Karnataka High Court, on the legal advice, so tendered by its Counsel. It was further stated that the Honble High Court vide order 10.02.2011, was pleased to dispose of the Writ Petition, holding therein, that the Petitioner had an efficacious, alternative remedy, under the provisions of the Consumer Protection Act, 1986. It was further stated that the Petitioner bonafidely trusted the legal advice, given to it, by the Counsel and pursued the Writ Petition, and that was why delay, in filing the Revision Petition, took place. The National Commission, in the aforesaid case, held that such a plea, taken by the Revision-Petitioner, for condonation of delay, was not tenable, in view of the decision of the Honble Supreme Court in M/s Advance Scientific Equipment Ltd. & anr. Vs West Bengal Pharma & Photochemical Development Corporation Ltd., 2011(DLT soft)1(SC), Appeal (Civil) Nos.17068-17069/2010, decided on 9.7.2010, wherein it was observed as under ;
We are further of the view that the petitioners venture of filing petition under Article 227 of the Constitution was clearly an abuse of the process of the Court and the High Court ought not to have entertained the petition even for a single day because an effective alternative remedy was available to the petitioner under Section 23 of the Act and the orders passed by the State Commission did not suffer from lack of jurisdiction
17. In view of the principle of law, laid down in M/s Advance Scientific Equipment Ltd.s case(supra), which is equally applicable to the instant appeal also, it can be held that prosecution of the case, by way of filing the Writ Petition, against the order impugned, was neither in good faith nor under bonafide belief. The submission of the Counsel for the applicant/appellant, being devoid of merit, must fail and the same stands rejected.
18. The next question, that arises, for consideration, is, as to whether, even if, sufficient cause is shown, it is obligatory, on the Commission, to condone the delay. The answer to this question, is in the negative. In Ram Lal and Ors. Vs. Rewa Coalfields Ltd., AIR 1962 Supreme Court 361, it was held as under:-
It is, however, necessary to emphasize that even after sufficient cause has been shown a party is not entitled to the condonation of delay in question as a matter of right. The proof of a sufficient cause is a discretionary jurisdiction vested in the Court by S.5. If sufficient cause is not proved nothing further has to be done; the application for condonation has to be dismissed on that ground alone. If sufficient cause is shown then the Court has to enquire whether in its discretion it should condone the delay. This aspect of the matter naturally introduces the consideration of all relevant facts and it is at this stage that diligence of the party or its bona fides may fall for consideration; but the scope of the enquiry while exercising the discretionary power after sufficient cause is shown would naturally be limited only to such facts as the Court may regard as relevant.
19. It is evident, from the principle of law, laid down in Ram Lal & Ors.s case (supra), that even if, sufficient cause is shown, then the Court has to enquire, whether, in its discretion, it should condone the delay. This aspect of the matter, requires the Commission, to take into consideration, all the relevant factors, and it is, at this stage, that diligence of the party(s) or its/their bonafides, may fall for consideration. In the instant case, as stated above, it was obligatory, on the part of the applicant/appellant, to take immediate steps to ensure that only the appeal before this Commission, was filed within the prescribed period, as envisaged by Section 15 of the Act, but he failed to do so, and, as stated above, adopted the wrong course. It was, thus, a case of complete lack of bonafides and inaction, on the part of the applicant/appellant. The principle of law, laid down in Ram Lal & Others case(supra) is fully applicable to the instant case. This is, therefore, not a fit case, in which this Commission, should exercise its discretion, in favour of the applicant/appellant, in condoning the delay.
20. No doubt, the Counsel for the appellant, placed reliance on Ram Nath Sao @ Ram Nath Sahu Vs. Gobradhan Sao, AIR (SC)-2002-0-1201, State of West Bengal Vs. Administrator, Howrah Municipality and Ors., AIR 1972, 749, 1972 SCR (2) 874, and Panchsheel Electronic Vs. Jupitor General Insurance Co., 11 (1975) DLT 79, 1974 RLR 453, in support of his contention that if there was any bonafide mistake, on the part of the applicant/appellant, on account of the wrong legal advice, rendered to him, by the Counsel, in filing the appeal, before the proper Forum, belatedly, that can be said to be sufficient cause, for condoning the delay. The aforesaid cases were decided, on the peculiar facts and circumstances prevailing therein. The Consumer Protection Act is a complete Code, in itself. Proper mechanism is provided thereunder, for the redressal of grievances of the consumers. Since, against the order dated 26.10.2012, only an appeal was maintainable, before this Commission, the mere fact that the applicant filed Writ Petition, challenging the order impugned, in the wrong Forum, could not constitute sufficient cause for condonation of delay. No help, therefore, can be drawn from the principle of law, laid down, in the aforesaid cases, by the Counsel for the applicant/ appellant.
21. The next question, that arises for consideration, is, as to whether, this Commission can decide the appeal, on merits, especially, when it has come to the conclusion, that there is no sufficient cause, for condonation of delay of 566 days, as per the applicant/appellant (as per the office report 556 days), in filing the same (appeal). The answer to this question, is in the negative, as provided by the Apex Court in State Bank of India Vs B.S. Agricultural Industries (I) II (2009) CPJ 29 (SC). The question before the Apex Court, was with regard to the condonation of delay, in filing the complaint, in the first instance, beyond the period of two years, as envisaged by Section 24A of the Act. The Apex Court was pleased to observe as under ;
Section 24A of the Act, 1986 prescribes limitation period for admission of a complaint by the Consumer Fora thus:
24A. Limitation period(1) The District Forum, the State Commission or the National Commission shall not admit a complaint unless it is filed within two years from the date on which the cause of action has arisen.
(2) Notwithstanding anything contained in Sub-section (1), a complaint may be entertained after the period specified in Sub-section (1), if the complainant satisfies the District Forum, the State Commission or the National Commission, as the case may be, that he had sufficient cause for not filing the complaint within such period:
Provided that no such complaint shall be entertained unless the National Commission, the State Commission or the District Forum, as the case may be, records its reasons for condoning such delay.
It would be seen from the aforesaid provision that it is peremptory in nature and requires Consumer Forum to see before it admits the complaint that it has been filed within two years from the date of accrual of cause of action. The Consumer Forum, however, for the reasons to be recorded in writing may condone the delay in filing the complaint if sufficient cause is shown. The expression, shall not admit a complaint occurring in Section 24A is sort of a legislative command to the Consumer Forum to examine on its own whether the complaint has been filed within limitation period prescribed thereunder. As a matter of law, the Consumer Forum must deal with the complaint on merits only if the complaint has been filed within two years from the date of accrual of cause of action and if beyond the said period, the sufficient cause has been shown and delay condoned for the reasons recorded in writing. In other words, it is the duty of the Consumer Forum to take notice of Section 24A and give effect to it. If the complaint is barred by time and yet, the Consumer Forum decides the complaint on merits, the Forum would be committing an illegality and, therefore, the aggrieved party would be entitled to have such order set aside.
22. The principle of law, laid down, by the Apex Court in State Bank of Indias case (supra), is equally applicable to the filing of an appeal, under Section 15 of the Act. In case, this Commission, decides the appeal, on merits, after coming to the conclusion, that it is barred by time, it would amount to committing an illegality, in view of the principle of law, laid down in State Bank of Indias case (supra).
23. For the reasons, recorded above, the application for condonation of delay of 566 days, as per the applicant/appellant (as per the office report 556 days), being devoid of merit, must fail, and the same is dismissed. Consequently, the appeal, under Section 15 of the Act, is also dismissed, being barred by time, at the preliminary stage, with no order as to costs.
24. Certified copies of this order, be sent to the parties, free of charge.
25. The file be consigned to Record Room, after completion.
Pronounced.
June, 19, 2014 Sd/-
[JUSTICE SHAM SUNDER (RETD.)] PRESIDENT Sd/-
(DEV RAJ) MEMBER Sd/-
(PADMA PANDEY) MEMBER Rg