National Consumer Disputes Redressal
Surappaneni Vidyasagar vs Dr. Suresh K. on 12 November, 2020
Author: R.K. Agrawal
Bench: R.K. Agrawal
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI REVISION PETITION NO. 599 OF 2020 (Against the Order dated 27/02/2020 in Appeal No. 981/2019 of the State Commission Karnataka) 1. SURAPPANENI VIDYASAGAR ...........Petitioner(s) Versus 1. RAMACHANDRA KRISHNA BHAT ...........Respondent(s) REVISION PETITION NO. 600 OF 2020 (Against the Order dated 27/02/2020 in Appeal No. 982/2019 of the State Commission Karnataka) 1. SURAPPANENI VIDYASAGAR ...........Petitioner(s) Versus 1. DR. SURESH K. ...........Respondent(s) REVISION PETITION NO. 601 OF 2020 (Against the Order dated 27/02/2020 in Appeal No. 983/2019 of the State Commission Karnataka) 1. SURAPPANENI VIDYASAGAR ...........Petitioner(s) Versus 1. BABY JOHN ...........Respondent(s) REVISION PETITION NO. 602 OF 2020 (Against the Order dated 27/02/2020 in Appeal No. 984/2019 of the State Commission Karnataka) 1. SURAPPANENI VIDYASAGAR ...........Petitioner(s) Versus 1. HARIDASS P.T. ...........Respondent(s)
BEFORE: HON'BLE MR. JUSTICE R.K. AGRAWAL,PRESIDENT HON'BLE DR. S.M. KANTIKAR,MEMBER
For the Petitioner : For the Petitioner Mr. Anand Sanjay M. Tuli, Advocate For the Respondent : For the Respondents : Mr. Shanthkumar V. Mahale, Advocate
Dated : 12 Nov 2020 ORDER
These four Revision Petitions have been filed by Sri Surappaneni Viidyasagar (hereinafter referred to as "the Petitioner") u/s 21 (b) of the Consumer Protection Act, 1986 (hereinafter referred to as "the Act") against the separate Orders all dated 27.02.2020 passed by the Karnataka State Consumer Disputes Redressal Commission (hereinafter referred to as "the State Commission") in First Appeal Nos. 981 to 984 of 2019 whereby the State Commission had dismissed the Applications filed by the Petitioner herein for condonation of delay in filing the Appeals before it as also on merits.
It may be mentioned here that First Appeal No. 981 of 2019 which was filed by the Petitioner before the State Commission, was against the Order dated 19.05.2018 passed by the Additional Bench District Consumer Disputes Redressal Forum at Mysuru (hereinafter referred to as "the District Forum) in Consumer Complaint (C.C.) No. 1357 of 2016 filed by Shri Ramachandra Krishna Bhat against the present Petitioner. The District Forum had allowed the Complaint in part and directed the Petitioner who had been arrayed as Opposite Party before the District Forum, to pay a sum of ₹1,00,000/- to the Complainant along with interest @ 15% p.a. from 29.07.2016 till the date of payment within 60 days of its Order. Further, the Petitioner was also directed to complete the pending work of Apartment and also extra amenities work within 60 days failing which he was made liable to pay ₹500/- penalty per day till the order is complied with as also ₹10,000/- towards deficiency in service, ₹5,000/- towards mental agony and ₹3000/- towards costs of the proceeding within 60 days failing which interest @ 12% p.a. on the total sum of ₹18,000/- from the date of the Order till payment was to be paid.The District Forum had further directed that in case of default to comply with the Order, the Petitioner shall undergo imprisonment and also liable for fine u/s 27 of the Act. The Petitioner has approached this Commission by filing Revision Petition No. 599 of 2020.
First Appeal No. 982 of 2019 was filed by the Petitioner before the State Commission against the Order dated 19.05.2018 passed by District Forum in Consumer Complaint (C.C.) No. 1356 of 2016 filed by Dr. Suresh K. The District Forum had granted the same relief to the Complainant as had been granted in Consumer Complaint (C.C.) No.1357 of 2016. The Petitioner has approached this Commission by filing Revision Petition No. 600 of 2020.
First Appeal No. 983 of 2019 was filed by the Petitioner before the State Commission against the Order dated 19.05.2018 passed by District Forum in Consumer Complaint (C.C.) No. 1354 of 2016 filed by Sri Baby John. In this case also, the District Forum had granted the same relief to the Complainant as had been granted in Consumer Complaint (C.C.) No. 1357 of 2016.The Petitioner has approached this Commission by filing Revision Petition No. 601 of 2020.
First Appeal No. 984 of 2019 was filed by the Petitioner before the State Commission against the Order dated 19.05.2018 passed by District Forum in Consumer Complaint (C.C.) No. 1355 of 2016 filed by Sri Haridass P.T. The District Forum had granted the same relief to the Complainant as had been granted in Consumer Complaint (C.C.) No. 1357 of 2016. The Petitioner has approached this Commission by filing Revision Petition No. 602 of 2020.
The Petitioner had approached the State Commission by filing four separate First Appeal Nos. 981 to 984 of 2019 against the separate Orders dated 19.05.2018 passed by the District Forum in Consumer Complaint Nos. 1357, 1356, 1354 and 1355 of 2016 with a delay of 370 days. The Petitioner had also filed the Applications seeking condonation of the said delay.
The State Commission, vide separate Orders dated 27.02.2020, has dismissed all the Applications filed by the Petitioner seeking condonation of delay and decided the cases on merits. The relevant paragraphs 4 and 5 and the operative portion of the impugned Order passed by the State Commission in First Appeal No. 981 of 2019, are reproduced below for ready reference:-
"4. We have perused the affidavit filed by the appellant accompanying the delay application. The appellant has stated that since he is a resident of Bangalore, he could not contact his counsel at Mysore to take update regarding the status of the case and he could not travel to Mysore to meet his advocate due to his ill health and hence there is a delay in filing the appeal. In this regard, the appellant has not produced any documents to show that he was suffering from any ailment or taking treatment for any ailment at the relevant point of time. Mere contentions without any documentary proof cannot be acceptable under law. The appellant has not shown any sufficient cause to condoning the huge delay of 370 days in filing the present appeal. Thus, the application for condonation of delay is without any merit and is liable to be dismissed. Further, in view of the decisions reported in 2018(2) CPR 507 (NC) in between M/s TDI Infrastructure Ltd., V/s Kulvinder Singh Bahl and 2019 (1) CPR (NC) in between Care Hospital, Nagpur V/s Naresh Gopalakrishna Vyas & Others, the appeal can be dismissed on the point of delay alone.
5. This appeal does not require our interference even on merit also because the District Forum after perusal of the documents produced by both the parties has ordered to pay Rs.1,00,000/- which was paid by the complainant along with 15% interest and other reliefs which is just and proper. Hence, the appeal is liable to be dismissed both on delay as well as on merits also. Hence,
:ORDER:
The appeal is hereby dismissed. No costs.
The impugned order dated 19.05.2018 in C.C. No. 1357/2016 on the file of Mysore District Consumer Forum is confirmed.
The amount in deposit shall be transmitted to the District Forum to disburse the same to the respondent/Complainant.
Intimate the order to both parties as well as District Forum." (underlined by us) Similar Orders have been passed by the State Commission in other three First Appeal Nos. 982 to 984 of 2019.
We have heard Mr. Anand Sanjay M. Tuli, learned Counsel appearing for the Petitioner, Mr. Shanthkumar V. Mahale, learned Counsel for the Complainants and have perused the impugned Orders passed by the State Commission.
Learned Counsel appearing for the Petitioner submitted that the State Commission was not justified in rejecting the Applications seeking condonation of delay of 370 days in preferring the First Appeals before it as the Petitioner had bonafide and reasonable explanation and had made out a sufficient cause for the condonation of delay. He further submitted that the State Commission was not at all justified in proceeding to dismiss the Appeals on merits after dismissing the Applications seeking condonation of delay. He has relied upon the Judgement of the Hon'ble Supreme Court in the case of Singal Udyog Vs. National Insurance Company Ltd. & Ors. - Civil Appeal No. 9161 of 2019 decided on 02.12.2019 [Manu/SC/1880/2019; I (2020) CPJ 117 (SC)] and submitted that the impugned Orders passed by the State Commission are vitiated in law and are liable to be set aside. He further submitted that the First Appeals filed by the Petitioner before the State Commission are to be decided afresh as the State Commission has committed a manifest error of law in proceeding to decide the Appeals on merits when it has already rejected the Applications seeking condonation of delay which is not permissible under the law.
Mr. Shanthkumar V. Mahale, learned Counsel appearing for the Respondents/Complainants, relying upon the decision of the Hon'ble Supreme Court in the case of State Bank of India Vs. B.S. Agriculture Industries (I) - (2009) 5 SCC 121, submitted that the State Commission was perfectly justified in dismissing the Appeals on the ground of limitation. In support of his submissions he has placed strong reliance upon the paragraphs 12 and 13 of the said judgment.
We have given our thoughtful consideration to the various pleas raised by the learned Counsel for the parties.We have already reproduced the relevant portion of the impugned Order passed by the State Commission wherein the State Commission has dismissed the Applications filed by the Petitioner seeking condonation of delay of 370 days as also deciding the matter on merits.In the case of State Bank of India (Supra), the Hon'ble Supreme Court in paragraphs 12 and 13 of the Order has held that firstly, the Consumer Forum has to consider as to whether the Complaint has been filed within limitation as provided u/s 24(A) of the Act and to give effect to it. It has further held that if the Complaint is barred by time and yet, the Consumer Forum decides the Complaint on merits, the Consumer Forum commits an illegality and, therefore, the aggrieved party is entitled to have such order set aside. For ready reference, paragraphs 12 and 13 of the judgment passed in State Bank of India (supra) are reproduced below:-
"12. 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.
13. In Union of India and Anr. v. British India Corporation Ltd. and Ors. MANU/SC/1194/2003 : (2003) 9 SCC 50, while dealing with an aspect of limitation for an application for refund prescribed in Business Profits Tax Act, 1947, this Court held that the question of limitation was a mandate to the forum and, irrespective of the fact whether it was raised or not, the forum must consider and apply it." (Underlined by us)
13. However, the Hon'ble Supreme Court in the case of Singal Udyog (Supra) has referred to its earlier decision in the case of State Bank of India (Supra) and has held as under:-
" There was delay of 150 days in preferring the First Appeal which was not condoned by the order under appeal and consequently the First Appeal stood dismissed. However, the National Commission also observed that there was apparent lack of merits in the matter and finally passed order as under:-
" 11. In view of the detailed discussion above, this appeal is at the stage of admission itself, dismissed on grounds of both an inordinate delay of 150 days as well as on an apparent lack of merit."
We have heard learned Counsel for the parties and have perused the record.
The issue whether a Tribunal or a Forum, after having come to the conclusion that the matter was barred by limitation, could consider merits of the matter, was gone into by this Court in State Bank of India v. B.S. Agriculture Industries MANU/SC/0420/2009 : (2009) 5 SCC 121 as under:
"12. 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."
The aforesaid view was relied upon by the Division Bench of the Allahabad High Court in Commissioner, Customs, Central Excise and Service Tax v. Monsanto Manufacture Pvt. Ltd. MANU/UP/0973/2014 to observe as under:
"21. The Tribunal came to the conclusion that the demand by the Revenue was beyond the period of limitation of one year prescribed Under Section 73(1) of the Finance Act, 1994 and that the period of five years could not have been invoked. That part of the judgment of the Tribunal has been confirmed in the companion appeal. Once that be the position and the Tribunal having came to the conclusion that the extended period of limitation could not have been validly applied, the Tribunal, in our view, acted outside its jurisdiction in entering upon the merits of the dispute on whether the demand for duty should be confirmed. Once it is held that the demand is time barred, there would be no occasion for the Tribunal to enquire into the merits of the issues raised by the Revenue."
In the circumstances, the National Commission, having found that the appeal was barred by time, could not have dealt with merits of the matter." (underlined by us)
14. From a reading of the decision of the Hon'ble Supreme Court in the case of State Bank of India (Supra), we find that the Hon'ble Supreme Court has held that 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 to be shown and delay condoned for the reasons recorded in writing.
15. The principle laid down by the Hon'ble Supreme Court of India in the case of State Bank of India (supra) was subsequently applied in the case of Singal Udyog (supra) and while considering the Order passed by the National Commission wherein the delay of 150 days in preferring the Appeal, was not condoned and the Appeal was dismissed at the stage of admission itself on the ground of inordinate delay of 150 days as well as apparent lack of merits, the Hon'ble Supreme Court laid down that the National Commission having found that the Appeal was barred by time, could not have dealt with merits of the matter.
16. Applying the principles laid down by the Hon'ble Supreme Court in the aforesaid cases to the facts of the present case, we find that the State Commission while passing the impugned Orders had dismissed the Appeals preferred by the Petitioner both on the ground of inordinate delay as well as on merits which could not have been done. Thus, the impugned Orders passed by the State Commission are vitiated in law and are liable to be set aside.
17. We, accordingly, set aside the impugned Orders dated 27.02.2020 passed by the State Commission and restore all the four Appeals on the file of the State Commission. We further request the State Commission to decide these Appeals expeditiously in accordance with law, if possible, within a period of six months from the date of receipt of a certified copy of this order which the learned Counsels for the parties shall file within two weeks.
18. In view of the foregoing discussions, all the four Revision Petitions succeed and are allowed. However, in the peculiar facts and circumstances of the case, the parties are left to bear their own costs.
......................J R.K. AGRAWAL PRESIDENT ...................... DR. S.M. KANTIKAR MEMBER