State Consumer Disputes Redressal Commission
Delhi State Industrial And ... vs Parmood Kumar & Anr. on 6 September, 2024
A/564/2024 DOD:06.09.2024
DELHI STATE INDUSTRIAL AND INFRASTRUCTURE DEVELOPMENT CORPORATION LTD. VS. PARMOD KUMAR
IN THE DELHI STATE CONSUMER DISPUTES REDRESSAL
COMMISSION
Date of Institution:23.08.2024
Date of Hearing :02.09.2024
Date of Decision : 06.09.2024
FIRST APPEAL NO. 564/2024
IN THE MATTER OF
DELHI STATE INDUSTRIAL AND INFRASTRUCTURE
DEVELOPMENT CORPORATION LTD.
THROUGH ITS MANAGING DIRECTOR
CORPORATE OFFICE AT:
N-Block, Bombay Life Building,
Connaught Circus, New Delhi-110001
Email:[email protected]
...APPLICANT/APPELLANT
(Through : Dr. Vikrant Narayan Vasudeva, Advocate
Mob.9868576256, 96543039096, 9868576256 &
Email: [email protected])
VERSUS
MR. PARMOD KUMAR
S/O LATE MR. ROHTASH KUMAR,
THROUGH LEGAL REPRESENTATIVE
1.MRS. MAMTA AGRAWAL, W/O LATE MR. PARMOD KUMAR, R/O, J-44, PATEL NAGAR-I, GHAZIABAD (UP)
2. MR. SHIKHAR AGRAWAL, S/O LATE MR. PARMOD KUMAR, R/O, J-44, PATEL NAGAR-I, GHAZIABAD (UP)
3. MS. ISHITA AGRAWAL, D/O LATE MR. PARMOD KUMAR R/O, J-44, PATEL NAGAR-I, GHAZIABAD (UP) ....NON-APPLICANTS/ RESPONDENTS DISMISSED Page 1 of 12 A/564/2024 DOD:06.09.2024 DELHI STATE INDUSTRIAL AND INFRASTRUCTURE DEVELOPMENT CORPORATION LTD. VS. PARMOD KUMAR CORAM:
HON'BLE JUSTICE SANGITA DHINGRA SEHGAL (PRESIDENT) HON'BLE MS. PINKI, MEMBER (JUDICIAL) Present: Mr. Vikrant N. Vasudev along with Ms. Varsha Tomar, counsel for the appellant.
PER: HON'BLE MS. PINKI, MEMBER (JUDICIAL)
1. The present appeal has been filed on 23.08.2024 challenging the impugned order dated 07.11.2023 passed in Complaint Case No.824/2012 whereby the complaint was allowed by the District Consumer Disputes Redressal Commission-VI (New Delhi), M- Block, 1st Floor, Vikas Bhawan, I.P. Estate, New Delhi.
2. This order will dispose off an application bearing IA No.2400/2024 seeking condonation of delay in filing the appeal, alongwith the appeal. Affidavit of Mr. Kailash Sonwa, Divisional Manager of the appellant has been filed alongwith this application.
3. The record has been carefully and thoroughly perused.
4. The application has been moved without any provision of law.
However, it is being considered under Section 15 of the Consumer Protection Act, 1986 as it is arising out of Complaint Case No.824/2012.
5. The bare perusal of the application IA-2400/2024 reflects that it has been filed without any provision of law. However, the entire proceedings of the present case took place according to the Old Act. Hence, before delving into the merits of the present application, it is imperative to ascertain whether the present application filed along with the appeal on 12.07.2024 is maintainable under the New Act/Old Act.
DISMISSED Page 2 of 126. The repeal of a law shall not affect the previous operation of any enactment i.e. the proceedings under Consumer Protection Act, 1986 shall continue for cases which had been filed prior to the implementation of Consumer Protection Act, 2019 on 20.07.2020. The same can be gauged through the repeal and saving section (Section 107) of the Consumer Protection Act, 2019 which has been reproduced below:
"107. (1) The Consumer Protection Act, 1986 is hereby repealed.
(2) Notwithstanding such repeal, anything done or any action taken or purported to have been done or taken under the Act hereby repealed shall, in so far as it is not inconsistent with the provisions of this Act, be deemed to have been done or taken under the corresponding provisions of this Act.
(3) The mention of particular matters in sub-section (2) shall not be held to prejudice or affect the general application of section 6 of the General Clauses Act, 1897 with regard to the effect of repeal."
7. We may also take the assistance of Section 6 (b) of the General Clauses Act, 1897 to further this view. Section 6 (b) of the General Clauses Act, 1897 has been reproduced below:
"6 Effect of repeal. : Where this Act, or any 1 [Central Act] or Regulation made after the commencement of this Act, repeals any enactment hitherto made or hereafter to be made, then, unless a different intention appears, the repeal shall not
(a) revive anything not in force or existing at the time at which the repeal takes effect; or
(b) affect the previous operation of any enactment so repealed or anything duly done or suffered thereunder"
8. Moreover, unless the legislature explicitly provides that the amendment is retrospective in nature, it will be considered prospective. The aforesaid view has been taken by the Apex Court DISMISSED Page 3 of 12 A/564/2024 DOD:06.09.2024 DELHI STATE INDUSTRIAL AND INFRASTRUCTURE DEVELOPMENT CORPORATION LTD. VS. PARMOD KUMAR in the case of CIT v. Vatika Township (P) Ltd. reported in (2015) 1 SCC 1 wherein the Court discussed the proviso to Section 113 of the Income Tax Act, 1961 and held that it was prospective and not retrospective. While deciding the case, the Constitution Bench laid down certain general principles which have been reproduced as under:
"28. Of the various rules guiding how a legislation has to be interpreted, one established rule is that unless a contrary intention appears, a legislation is presumed not to be intended to have a retrospective operation. The idea behind the rule is that a current law should govern current activities. Law passed today cannot apply to the events of the past. If we do something today, we do it keeping in view the law of today and in force and not tomorrow's backward adjustment of it. Our belief in the nature of the law is founded on the bedrock that every human being is entitled to arrange his affairs by relying on the existing law and should not find that his plans have been retrospectively upset. This principle of law is known as lexprospicit non respicit: law looks forward not backward. As was observed in Phillips v. Eyre [Phillips v. Eyre, (1870) LR 6 QB 1] , a retrospective legislation is contrary to the general principle that legislation by which the conduct of mankind is to be regulated when introduced for the first time to deal with future acts ought not to change the character of past transactions carried on upon the faith of the then existing law.
29. The obvious basis of the principle against retrospectivity is the principle of "fairness", which must be the basis of every legal rule as was observed in L'OfficeCherifien des Phosphates v. Yamashita- Shinnihon Steamship Co. Ltd. [L'OfficeCherifien des Phosphates v. Yamashita-Shinnihon Steamship Co. Ltd., (1994) 1 AC 486 : (1994) 2 WLR 39 : (1994) 1 All ER 20 (HL)] Thus, legislations which modified accrued rights or which impose obligations or impose new DISMISSED Page 4 of 12 A/564/2024 DOD:06.09.2024 DELHI STATE INDUSTRIAL AND INFRASTRUCTURE DEVELOPMENT CORPORATION LTD. VS. PARMOD KUMAR duties or attach a new disability have to be treated as prospective unless the legislative intent is clearly to give the enactment a retrospective effect; unless the legislation is for purpose of supplying an obvious omission in a former legislation or to explain a former legislation. We need not note the cornucopia of case law available on the subject because aforesaid legal position clearly emerges from the various decisions and this legal position was conceded by the counsel for the parties. In any case, we shall refer to few judgments containing this dicta, a little later."
(emphasis in original)
9. Similarly, the Apex Court in Hitendra Vishnu Thakur vs State of Maharashtra reported in 1994 (4) SCC 602, the court has culled out the ambit and scope of an amending Act and its retrospective operation and has held the following:
"26. The Designated Court has held that the amendment would operate retrospectively and would apply to the pending cases in which investigation was not complete on the date on which the Amendment Act came into force and the challan had not till then been filed in the court. From the law settled by this Court in various cases the illustrative though not exhaustive principles which emerge with regard to the ambit and scope of an Amending Act and its retrospective operation may be culled out as follows:
(i) A statute which affects substantive rights is presumed to be prospective in operation unless made retrospective, either expressly or by necessary intendment, whereas a statute which merely affects procedure, unless such a construction is textually impossible, is presumed to be retrospective in its application, should not be given an extended meaning and should be strictly confined to its clearly defined limits.DISMISSED Page 5 of 12
A/564/2024 DOD:06.09.2024 DELHI STATE INDUSTRIAL AND INFRASTRUCTURE DEVELOPMENT CORPORATION LTD. VS. PARMOD KUMAR
(ii) Law relating to forum and limitation is procedural in nature, whereas law relating to right of action and right of appeal even though remedial is substantive in nature.
(iii) Every litigant has a vested right in substantive law but no such right exists in procedural law.
(iv) A procedural statute should not
generally speaking be applied
retrospectively where the result would be to create new disabilities or obligations or to impose new duties in respect of transactions already accomplished.
(v) A statute which not only changes the procedure but also creates new rights and liabilities shall be construed to be prospective in operation, unless otherwise provided, either expressly or by necessary implication."
10. Taking into account the aforesaid discussion, we conclude that the Consumer Protection Act, 2019 is prospective in nature. Thus, the cases pending or adjudicated and rights/obligations created before the coming into effect of the Consumer Protection Act, 2019 will continue to be adjudicated under the Old Act i.e. Consumer Protection Act, 1986. Hence, the applicant cannot resort to the provisions as inculcated in the New Act so far as the present case is concerned this case will be governed by the provisions of the Old Act.
11. Application for condonation of delay has been filed on various grounds. Para No.2 of the application reads as under:
"2. That the delay in filing the First Appeal is neither intentional nor deliberated nor willful. That the Ld. District Commission without hearing arguments by either of the party, passed the impugned order on 07.11.2023. However, the appellant came to know about the judgement only in first week of July when the authorized representative of Appellant went to Ld. District DISMISSED Page 6 of 12 A/564/2024 DOD:06.09.2024 DELHI STATE INDUSTRIAL AND INFRASTRUCTURE DEVELOPMENT CORPORATION LTD. VS. PARMOD KUMAR Commission for enquiring about the status and next date of hearing of the case, the Appellant got to know that the judgment was passed on 07.11.2023. That the Appellant has not received the certified copy of the judgement from the commission as of date. That thereafter several meetings were undertaken, once a copy of the judgement had been obtained. That a legal opinion was also sought which took further time. Thereafter, it took the advocate further time to draft the appeal and thereafter the appeal was further vetted by the appellant. Furthermore, since the documents and records were voluminous, it took time to have the same ready for filing. Further, when the documents were sought to be filed at the registry, certain defects were raised pre-filing by the checking counter, which requires correction before the files could be accepted by registry. The same took time in correction."
12. To adjudicate this issue, we deem it appropriate to refer to Section 15 of the Consumer Protection Act, 1986 which provides as under:-
"Any person aggrieved by an order made by the District Forum may prefer an appeal against such order to the State Commission within a period of thirty days from the date of the order, in such form and manner as may be prescribed:
Provided that the State Commission may entertain an appeal after the expiry of the said period of thirty days if it is satisfied that there was sufficient cause for not filing it within that period:
[Provided further that no appeal by a person, who is required to pay any amount in terms of an order of the District Forum, shall be entertained by the State Commission unless the appellant has deposited in the prescribed manner fifty per cent. of the amount or twenty- five thousand rupees, whichever is less]"
13. A perusal of the aforesaid statutory position reflects that the appeal against an order should be preferred within a period of thirty days from the date of impugned order. On perusal of record before us, it is clear that the impugned order was pronounced on DISMISSED Page 7 of 12 A/564/2024 DOD:06.09.2024 DELHI STATE INDUSTRIAL AND INFRASTRUCTURE DEVELOPMENT CORPORATION LTD. VS. PARMOD KUMAR 07.11.2023 and the present appeal was filed on 23.08.2024 i.e. after a delay of 260 days.
14. In order to condone the delay, the Appellant has to satisfy this Commission that there was sufficient cause for preferring the appeal after the stipulated period. The term 'sufficient cause' has been explained by the Apex Court in Basawaraj and Ors. vs. The Spl. Land Acquisition Officer reported in AIR 2014 SC 746. The relevant paras of the aforesaid judgment are reproduced as under:-
"9. Sufficient cause is the cause for which Defendant could not be blamed for his absence. The meaning of the word "sufficient" is "adequate" or "enough", inasmuch as may be necessary to answer the purpose intended. Therefore, the word "sufficient" embraces no more than that which provides a platitude, which when the act done suffices to accomplish the purpose intended in the facts and circumstances existing in a case, duly examined from the view point of a reasonable standard of a cautious man. In this context, "sufficient cause" means that the party should not have acted in a negligent manner or there was a want of bona fide on its part in view of the facts and circumstances of a case or it cannot be alleged that the party has "not acted diligently" or "remained inactive".
However, the facts and circumstances of each case must afford sufficient ground to enable the Court concerned to exercise discretion for the reason that whenever the Court exercises discretion, it has to be exercised judiciously. The applicant must satisfy the Court that he was prevented by any "sufficient cause" from prosecuting his case, and unless a satisfactory explanation is furnished, the Court should not allow the application for condonation of delay. The court has to examine whether the mistake is bona fide or was merely a device to cover an ulterior purpose."
15. We also deem it appropriate to refer to Anil Kumar Sharma vs. United Indian Insurance Co. Ltd. and Ors. Reported in DISMISSED Page 8 of 12 A/564/2024 DOD:06.09.2024 DELHI STATE INDUSTRIAL AND INFRASTRUCTURE DEVELOPMENT CORPORATION LTD. VS. PARMOD KUMAR IV(2015)CPJ453(NC), wherein the Hon'ble NCDRC held as under:-
"12. .........we are not satisfied with the cause shown to justify the delay of 590/601 days. Day to day delay has not been explained. Hon'ble Supreme Court in a recent judgment of Anshul Aggarwal v. New Okhla Industrial Development Authority, IV (2011) CPJ 63 (SC) has held that while deciding the application filed for condonation of delay, the Court has to keep in mind that 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 the appeals and revisions, which are highly belated are entertained."
16. We further deem it appropriate to refer to Lingeswaran Etc. Versus Thirunagalingam in Special Leave to Appeal (C) Nos.2054-2055/2022 decided on 25.02.2022, wherein the Hon'ble Supreme Court held as follows: -
"5. We are in complete agreement with the view taken by the High Court. Once it was found even by the learned trial Court that delay has not been properly explained and even there are no merits in the application for condonation of delay, thereafter, the matter should rest there and the condonation of delay application was required to be dismissed. The approach adopted by the learned trial Court that, even after finding that, in absence of any material evidence it cannot be said that the delay has been explained and that there are no merits in the application, still to condone the delay would be giving a premium to a person who fails to explain the delay and who is guilty of delay and laches. At this stage, the decision of this Court in the case of PopatBahiruGoverdhane v. Land Acquisition Officer, reported in (2013) 10 SCC 765 is required to be referred to. In the said decision, it is observed and held that the law of DISMISSED Page 9 of 12 A/564/2024 DOD:06.09.2024 DELHI STATE INDUSTRIAL AND INFRASTRUCTURE DEVELOPMENT CORPORATION LTD. VS. PARMOD KUMAR limitation may harshly affect a particular party but it has to be applied with all its rigour when the statute so prescribes. The Court has no power to extend the period of limitation on equitable grounds. The statutory provision may cause hardship or inconvenience to a particular party but the Court has no choice but to enforce it giving full effect to the same.
17. From the aforesaid dicta of the Hon'ble Apex Court and the Hon'ble National Commission, it is clear that 'sufficient cause' means that the party should not have acted in a negligent manner or there was a want of bona fide on its part and the applicant must satisfy the Court that he was prevented by any "sufficient cause" from prosecuting his case, and unless a satisfactory explanation is furnished, the Court should not allow the application for condonation of delay.
18. Reverting to the material available before us, we find that the impugned order was passed on 07.11.2023 and the period of limitation starts from the date of order which had expired on 07.12.2023.
19. However, the appellant has failed to file the present appeal within the stipulated period and the reason for delay stated by the appellant are that the impugned order came to the knowledge of the appellant only in first week of July when the authorised representative of the appellant went to the District Commission for enquiring about the status and next date of hearing of the case as the District Commission without hearing arguments by either of the party has passed the impugned order on 07.11.2023; after obtaining the impugned order, legal opinion was sought; thereafter, appeal was drafted which took time as the documents were voluminous.
20. In the present appeal, there is a delay of 260 days in filing the appeal.
DISMISSED Page 10 of 1221. It has been submitted by the appellant that the impugned order came into their knowledge only in first week of July. It is the appellant to justify this fact by filing any proof regarding the above. However, the appellant has failed to explain the reason as to why they did not follow with the pending case before the District Commission from the passing of the date of order i.e. 07.11.2023 till first week of July, 2024 (2024 not mentioned by the appellant). The averment of the Appellant shows its negligence in pursuing the matter.
22. It is for the appellant to mention the date of obtaining the certified copy of the impugned order, specific dates of meeting which were undertaken and when the legal opinion was sought and received by the appellant. Moreover, the appellant has failed to explain the specific dates of occasions in this application.
23. It is further submitted by the counsel for the Appellant that the Appellant is a Government undertaking organization and due to the impersonal machinery, the delay occurred in taking various approvals for filing the present appeal. To this argument of the Appellant, we deem it appropriate to refer to the case of Office of The Chief Post Master General and Ors. Vs. Living Media India Ltd. and Ors. reported at AIR 2012 SC 1506, wherein the apex court has held as under:
"12. .......The claim on account of impersonal machinery and inherited bureaucratic methodology of making several notes cannot be accepted in view of the modern technologies being used and available. The law of limitation undoubtedly binds everybody including the Government.
13. In our view, it is the right time to inform all the government bodies, their agencies and instrumentalities that unless they have reasonable and acceptable explanation for the delay and there was bonafide effort, there is no need to accept the usual explanation that the file was kept pending for several DISMISSED Page 11 of 12 A/564/2024 DOD:06.09.2024 DELHI STATE INDUSTRIAL AND INFRASTRUCTURE DEVELOPMENT CORPORATION LTD. VS. PARMOD KUMAR months/years due to considerable degree of procedural red-tape in the process. The government departments are under a special obligation to ensure that they perform their duties with diligence and commitment. Condonation of delay is an exception and should not be used as an anticipated benefit for government departments. The law shelters everyone under the same light and should not be swirled for the benefit of a few."
24. Relying on the above settled law and considering the fact that there was no proper explanation offered by the Appellant. According to us, the Appellant has miserably failed to give any acceptable and cogent reasons sufficient to condone such delay.
25. Having regard to the statutory position discussed above and the facts of the case, the application filed by the Appellants seeking condonation of delay cannot be allowed and accordingly, the same is dismissed on the above grounds.
26. Consequently, the present appeal filed beyond the stipulated period also stands dismissed. However, in the facts of the case, there shall be no orders as to cost.
27. File be consigned to record room.
JUSTICE SANGITA DHINGRA SEHGAL (PRESIDENT) PINKI MEMBER (JUDICIAL) Pronounced on 06.09.2024 DISMISSED Page 12 of 12