NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION
REVISION PETITION NO. 2830 OF 2011
I.A. No.01 of 2012 (For Stay) and
Application for filing additional documents
(From the order dated 11.7.2011 in Appeal No.A/09/811
of the State Commission, Mumbai, Maharashtra)
1. M/s. Shriram Finance Company Ltd.
Having its office at 101/105,
Shiv Chambers, 1st Floor, B-Wing,
Sector-11, CBD Belapur,
Navi Mumbai – 400 604 and also at
217, 2nd Floor, Swastik Chambers, in
CST & ST Road, Chambur, Mumbai – 400 071.
2. Citicorp Finance (I) Ltd.
A company incorporated under the Companies Act, 1956
and having its registered office at
Citi Tower, 2nd Floor, 61, Dr. S.S. Rao Raod,
Patel, Mumbai – 400 012. …Petitioners
Aziz Miya Patel,
Having address at Channel Paradise,
Plot No.426, TPS, Flat No.702,
Panvel, Navi Mumbai ….Respondent
HON’BLE MR. JUSTICE V.B. GUPTA, PRESIDING MEMBER
HON’BLE MRS. REKHA GUPTA, MEMBER
For the Petitioners : Mr. Lenin Singh Hijam, Advocate
For the Respondent : Mrs. Kumud Nijhawan, Advocate with
Mr. Dinesh Patel, Advocate
Pronounced on : 21st May, 2013
PER MR. JUSTICE V.B. GUPTA, PRESIDING MEMBER
Present revision petition under Section 21(b) of Consumer Protection Act, 1986 (for short, ‘Act) has been filed by the petitioners/opposite parties challenging order dated 11.7.2011, passed by State Consumer Disputes Redressal Commission, Mumbai, Maharashtra (for short, ‘State Commission’).
2. Brief facts are that respondent/complainant, filed a complaint before District Consumer Disputes Redressal Forum, Thane, Maharashtra (for short, ‘District Forum’) against petitioners for causing deficiency in service in providing advance for purchase of the vehicle and taking forcible possession of the vehicle without the consent/notice and prior intimation to the respondent.
3 Petitioners contested the complaint before the District Forum.
4. District Forum, vide order dated 6.12.2008, partly allowed the complaint and passed the following directions;
“(i). The Opponents no.1 and 2 are jointly and severally responsible to compensate for Rs.8,55,000/- (Rs.Eight Lakhs Fifty Five Thousand only) for causing damage/loss due to taking forcible possession of 2 vehicles and sold the same to third party without prior notice/intimation to the complainant.
(ii). Opponents no.1 and 2 are jointly and severally liable to pay to the Complainant Rs.10,000/- (Rupees Ten Thousand only) towards mental agony.
(iii). Opponents no.1 and 2 are jointly and severally liable to pay Rs.5,000/- (Rs.FiveThousand only) towards cost of the complaint.
(iv). This order should be followed within 45 days by direct payment or else if the execution proceeding filed then penal interest @ 5% p.a. will be charge from the date of filing the complaint.”
5. Being aggrieved by the order of the District Forum, petitioners filed (First Appeal No.A/09/811)alongwith (Miscellaneous Application No.09/920 for Delay). State Commission vide impugned order, dismissed the application for condonation of delay and consequently appeal was not entertained.
6. Now, petitioners have filed present petition challenging the impugned order.
7. Respondent in response has filed its counter affidavit.
8. We have heard learned counsel for the parties and have gone through the record.
9. It has been contended by learned counsel for the petitioners that delay caused in filing of the appeal was not intentional, since the concerned employee has to proceed suddenly to his native village due to some family problem and as such he has kept all the relevant documents of this case in his locker. After that employee returned to the office, immediately thereafter the appeal was filed. As such, there are sufficient grounds for condoning the delay. In support, learned counsel has relied upon the following judgments;
“i) Suryapal Singh Vs. Siddha Vinayak Motors & Another
II (2012) CPJ 8 (Supreme Court);
ii) Laxmi Engineering Works Vs. P.S.G. Industrial Institute
1995 SCC (3) 583 and
iii) Kiran Singh Vs. Chaman Paswan
AIR 1954 SC 340. ”
10. On the other hand, it has been contended by learned counsel for the respondent that explanation given by the petitioners cannot be considered just and proper. Further, right accrued to the respondent cannot be taken away by the negligence of the petitioners. In support, learned counsel has relied upon number of judgments as mentioned in its reply.
11. State Commission, while dismissing the application for condonaton of delay of 128 days, in its impugned order observed;
“It is stated on behalf of applicant/appellant that copy of the impugned order dated 06/12/2008 was received by it on 29/12/2008 and thereafter, the applicant which is Finance Company entrusted the papers to its employee Mr. Nityanand S.Vazhakulath for the purpose of filing appeal. It is further stated that said employee suddenly proceeded to his native place due to some family problem keeping the papers locked in his locker. He returned on 07/04/2009 and thereafter, lawyer was contacted and then after completing necessary formalities relating to Section 15 of the Consumer Protection Act, 1986 the appeal was filed on 04/06/2009.
To support the application for condonation of delay, affidavit of Mr. NityanandS. Vazhakulath dated 18/02/2011 is filed. This is nothing but the verification affidavit to the application for condonation of delay. Neither this application nor the affidavit speaks about the circumstances under which this employee suddenly required to leave for his native place and why he could not make arrangement regarding filing of appeal or brought it to the notice of his employer. Therefore, such statement itself is vague.
As far as second ground of delay is concerned, it relates to preparing the necessary demand draft in order to file appeal and to comply simultaneously the provisions of Section 15 of the Consumer Protection Act, 1986. Since, the provisions of law regarding filing of appeal are well settled, there cannot be a confusion when the assistance of lawyer is taken. Under these circumstances, this ground also does not find any merit and certainly, does not explain the delay.
For the reasons stated above, we find that the applicant/appellant failed to explain the delay in satisfactory manner and holding accordingly, we pass thefollowing order;
-: ORDER :-
1. Misc. Appl. No.920/2009 for condonation of delay stands rejected.
2. Consequently, appeal No.811/2009 is not entertained.”
12. It is well settled that “sufficient cause” in each case, is a question of fact.
13. In Ram Lal and Ors. Vs. Rewa Coalfields Ltd., AIR 1962 Supreme Court 361, it has been observed;
“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.”
14. Similarly, in Oriental Insurance Co. Ltd. vs. Kailash Devi & Ors. AIR 1994 Punjab and Haryana 45, it has been laid down that;
“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 bona fide is imputable to the applicant. The discretion to condone the delay is to be exercised judicially i.e. one of is not to be swayed by sympathy or benevolence.”
15. In R.B. Ramlingam Vs. R.B. Bhavaneshwari, 2009 (2) Scale 108, it has been observed:
“We hold that in each and every case the Court has to examine whether delay in filing the special appeal 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.”
16. Since, in the application for condonation of delay no particulars of delay nor the period of delay was mentioned, consequently, State Commission vide order dated 27.10.2010, granted permission to the petitioners to amend application for condonation of delay. Subsequent to the order of the State Commission, petitioners filed amended application for condonation of delay dated 14.1.2011. The main ground on which condonation of delay was sought states;
“The Appellant submits that the order dated 6th December, 2008 was received by the Appellant on 29/12/2008 and the certified copy of the order and other documents were entrusted to the concerned employee Mr.Nityanand S. Vazhakulath on 30/12/2008 with instructions to prepare for filing of the Appeal. The Appellant submits that the said Mr. Nityanand S.Vazhakulath suddenly proceeded to his native village the same day evening due to some family problems keeping the certified copy of the order and other relevant documents in his locker. The Appellant submits that Mr. Nityanand S.Vazhakulath returned to office on 07/04/2009 and immediately thereafter the Appellant contacted their Advocate who advised to arrange for DD for Rs.15,000/- towards mandatory deposit and DD for Rs.4,35,000/- being the 50% of the decreetal amount for filing the Appeal”.
17. As per application for condonation of delay, petitioners have received the copy of impugned order dated 6.12.2008 passed by the State Commission on 29.12.2008 which was entrusted to their employee Mr. Nityanand Shankar Vazkulath on 30.12.2008 on instruction to prepare for filing of the appeal. It is petitioners’ case that the said employee suddenly proceeded to his native village on the same day due to some family problem keeping the certified copy of the impugned order and other relevant documents in his locker and he returned to the office only on 7.4.2009 and immediately, thereafter petitioners contacted their Advocate who advised petitioners to arrange for demand draft for mandatory deposit.
18. Petitioners’ employee Nityanand Shankar Vazkulath in its affidavit filed alongwith application forcondonaton of delay dated 14.1.2011, nowhere specifically states as to why he has to suddenly proceed to his native village on 30.12.2008 nor he has stated that he kept the documents in his locker. Relevant portion of the said affidavit read as under;
“I say that we have filed the amended Application for condonation of delay in filing the first Appeal against the order dated 6th December, 2008 of the Hon’ble District Forum, Thane in Complaint No.51/2005. I say that the delay of 128 days in filing the Appeal was not intentional but due to various circumstances and misguidance given by our earlier Advocate. For the sake of brevity and with a view to avoid repetition, I crave leave of this Hon’ble Commission to adopt, confirm, repeat and reiterate the said statements and averments made therein, as if the same were specifically set out herein and formed a part and parcel of this Affidavit.”
19. Thus, as per above affidavit, petitioners have shifted the entire burden with regard to the delay, on their Advocate. Interestingly, name of that Advocate has not been mentioned. Even otherwise, neither petitioners nor Nityanand Shankar Vazkulath in its affidavit has stated as to what was the family problem for which the employee had to remain away from the work for over three months. Moreover, it has also not been stated as to what was the nature of leave, which was taken by that employee. The application is absolutely silent on these material aspects.
20. Under the Act, a special period of limitation has been provided to ensure expeditious disposal of cases. Complaint has to be disposed of within 90 days from the date of filing where no expert evidence is required to be taken and within 150 days where expert evidence is required to be taken.
21. Hon’ble Supreme Court in Anshul Aggarwal vs. 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 the special period of limitation has been prescribed under the Act 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. Relevant observations made by Apex Court read 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 fora”.
22. Hon’ble Apex Court also observed in case “State of Nagaland Vs. Lipokao and others reported in 2005(2) RCR (Criminal) 414 that;
“Proof of sufficient cause is a condition precedent for exercise of discretion by the court in condonation of delay”.
23. Apex Court also in “D. Gopinathan Pillai Vs. State of Kerala and another, reported in (2007) 2 SCC, 322, held;
“When mandatory provision is not complied and the delay is not properly, satisfactorily and convincingly explained, the court cannot condone the delay on sympathetic ground only.”
24. Therefore, grounds stated in the application cannot constitute sufficient cause so as to condone theinordinate delay of 128 days in filing of the appeal. Even otherwise, the District Forum decided the complaint of the respondent about four and a half years ago and if such type of application for condonation of delay is allowed, then it would defeat the very object of the Act which provide for expeditious justice to the consumer.
25. It would be pertinent to point out that petitioners have also filed application for bringing on record the additional grounds. Most of the grounds as averred in the application pertain to the merit of the case and at the revisional stage, we cannot take into consideration the additional grounds which the petitioners want to take now. Moreover, most of the judgments cited by counsel for the petitioner pertain to the merit of the case. Since, the State Commission dismissed the appeal of the petitioner on the ground of delayalone, those judgments are not applicable to the facts of the present case.
26. We, do not find any infirmity or illegality in the impugned order and there is no reason to disagree with the findings given by the State Commission. Accordingly, the present revision petition, being not maintainable, is hereby dismissed with punitive cost of Rs.25,000/- (Rupees Twenty Five Thousand only) and the same shall be paid by the petitioners to the respondent by way of demand draft in his name, within eight weeks.
27. Petitioners are directed to deposit/remit the aforesaid cost within eight weeks, failing which it shall be liable to pay interest @ 9% per annum till realization.
28. List on 26.7.2013 for compliance.