APPEAL NO: 1277/2008


1. M/s. Kalpana Cargo Pvt. Ltd.,

Kalwad Scheme, Near Rly.Station,

Jaipur.

2. Ashok Kumar Keshot,

Director, Kalpana Cargo P.Ltd.

authorised Parcel Transportation

Sole Agent for RSRTC,

Kalpana Chamber,Fatehsingh Market,

Near Rly.Station,

Jaipur.

3. Satish Kumar Keshot,

Director, Kalpana Cargo P.Ltd.

authorised Parcel Transportation

Sole Agent for RSRTC,

Kalpana Chamber,Fatehsingh Market,

Near Rly.Station,

Jaipur.

Opposite party no. 1 to 3 - appellants


Vs.


1. Sh.Satturaj Rajpurohit

Prop. Yash Fabrics

Shop no. 126-127

Raibahadur Bazar,

MGH Road, Jodhpur.

Complainant-respondent

2. Sh.Ramgopal Gehlot

Agent Himangini Cargo Services,

Shop no. 4,

2


Raibahadur Bazar,

MGH Road, Jodhpur.

Opposite party no.4 - respondent


Date of judgment 7.7.2009


Before:


Mr.Justice Sunil Kumar Garg-President

Mrs.Vimla Sethia-Member


Mr.Anil Bhatia counsel for the appellants

Mr.M.L.Vyas counsel for respondent no.1

None present for respondent no.2


BY THE STATE COMMISSION


This appeal has been filed by the appellants which were opposite party no. 1 to 3 before the District Forum with a delay of 244 days against order dated 10.10.07 passed by the District Forum, Jodhpur in complaint no. 88/2007 by which the complaint of complainant respondent no.1 was allowed against the appellants as well as respondent no.2 who was opposite party no.4 before the District Forum in the manner that the appellants as well as respondent no.2 were directed to pay a sum of Rs. 38,406/- the price of the cloth alongwith interest @ 9% p.a. w.e.f. 11.1.07 and further to pay a sum of Rs. 5000/- as compensation for mental agony and Rs. 1000/- as costs of litigation.


2. It arises in the following circumstances-


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That the complainant respondent no.1 had filed a complaint against the appellants as well as respondent no.2 before the District Forum, Jodhpur on 11.1.07 inter alia stating that the complainant respondent no.1 deals in business of cloth in the name and style of Yash Fabrics at Jodhpur. It was further stated in the complaint that appellants no. 2 & 3 are the Directors of appellant no.1 and the respondent no.2 is the agent of them. It was further stated in the complaint that a bundle of cloth was handed over by the complainant respondent no.1 to the appellants for being carried in Distt. Jhansi through bilty no.190010057 on 10.4.06 but the same was not delivered at the address of the consignee. It was further stated in the complaint that the said bundle was worth Rs. 38,406/- for which a bill had been produced and since the same was not delivered at its destination by the appellants and for that deficiency in service , the present complaint was filed.


A reply was filed by opposite party no.4 before the District Forum, Jodhpur on 28.5.07.


Note- It may be stated here that before the District Forum, Jodhpur though the counsel for the appellants Mr. Ashish Mathur was present when the impugned order was passed by the District Forum on 10.10.07 but the appellants had not filed any reply before the District Forum, Jodhpur.


After hearing the parties, the District Forum, Jodhpur through impugned order dated 10.10.07 on the basis of the evidence on record and taken into consideration that there was no rebuttal from the side of the appellants had come to

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the conclusion that the goods sent through the transport services of the appellants worth Rs. 38,406/- were not delivered at its destination and for that deficiency in service, complaint was allowed against the appellants as well as respondent no.4 and the impugned order was passed by the District Forum, Jodhpur as stated above.


Aggrieved from the said order dated 10.10.07 passed by the District Forum, Jodhpur, this appeal has been filed by the appellants with a delay of 244 days.


3. In this appeal the following contentions have been raised on behalf of the appellants-


(i) That delay of 244 days in filing the appeal be condoned and for that application u/s 5 of the Limitation Act has been filed.


(ii) That since the impugned order was passed by the District Forum, Jodhpur without considering the reply of the appellants as no reply was filed by the appellants before the District Forum, therefore, an opportunity to file reply be given to the appellants and the matter be remanded back to the District Forum for deciding it afresh on merits after taking into consideration the reply of the appellants.


4. On the other hand the learned counsel for the complainant respondent no.1 has supported the impugned order passed by the District Forum,Jodhpur.


5. We have heard the learned counsel appearing for the

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appellants as well as for respondent no.1 and have gone through the entire materials available on record.


On point no.(i)


6. In this case there is no dispute on the point that when the impugned order was passed by the District Forum, Jodhpur, the counsel for the appellants was present and had argued the case.


7. In our considered opinion, the application u/s 5 of the Limitation Act is to be rejected and similarly the appeal is to be dismissed as being time barred .


8. In this case since there is an inordinate delay of 244 days, therefore, the appellants had to explain the delay made thereafter day by day. In other words, in showing sufficient cause for condoning delay the party may be called upon to explain for the whole of the delay covered by the period between the last day prescribed for filing the appeal and the day on which the appeal is filed.


9. The Hon'ble Supreme Court in the case reported in AIR 1962 SC 36 has observed in the following manner:


" Section 5 of the Limitation Act is a hard task master and judicial interpretation has encased it within a narrow compass. A large majority of case-law has grown around section 5, its highlights being that one ought not easily to take away a right which has accused to a part by lapse of time and that therefore a litigant who is not vigilant about his rights must explain every day's delay...."

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10. Taken into consideration the law laid down by the Hon'ble Supreme Court, if the facts of the present case are examined, it clearly appears that delay in the present case was such a delay that could not be condoned though this Commission is of the view that condoning the delay in filing the appeal should be liberally construed but delay of 244 days could not be said to be such a delay which could be condoned. Had there would have been a delay of 20 or 50 days etc., the position would have been different one.


11. For the reasons stated above, since in the present case ground of delay which has been taken by the appellants could not be said to be proper and reasonable ground and it could not be termed as sufficient cause for not filing the appeal in time. The proof of sufficient cause is a condition precedent for the exercise of discretionary jurisdiction vested in this Commission and this aspect is missing in this case.


12. Thus, this Commission comes to the conclusion that the appellants has miserably failed to substantiate his case for presenting the appeal after such a long delay and for that reason, application filed u/s 5 of the Limitation Act deserves to be rejected and the same is rejected and when the application for condonation of delay is rejected, the appeal filed by the complainant appellant is also deserves to be dismissed as being time barred.



On point no. (ii)


13. So far as the second contention of the learned counsel for the appellants is concerned, it may be stated here that it is very

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high handedness on the part of the appellants in the manner that on one hand their counsel was appearing before the District Forum while the proceedings in the complaint was going on and on the other hand no reply was filed on behalf of them and thus it clearly reflects that the appellants were very much careless in conducting the proceedings and when the appeal itself is time barred as stated above, therefore, no question for remanding the matter on point of giving opportunity for filing the reply before the District Forum arises.


14. In view of the discussions made above the appeal filed by the appellants is dismissed as being time barred.



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