Haryana

StateCommission

A/961/2019

INDO ASIAN BIOTECH COMPANY - Complainant(s)

Versus

BASAU RAM - Opp.Party(s)

RAJESH SETHI

27 Apr 2023

ORDER

STATE CONSUMER DISPUTES REDRESSAL COMMISSION HARYANA, PANCHKULA

                                                                               

                                                         First Appeal No.961 of 2019

                                                Date of Institution:05.11.2019

                                                               Date of Decision: 27.04.2023

 

Indo Asian Biotech Company, Shop No.5, Basement, New Anaj Mandi, Hisar, District Hisar, through its proprietor Hawa Singh.

…..Appellant

Versus

Basau Ram (aged 56 years), S/o Sh.Jai Karan S/o Jita Ram, caste Kumhar,R/o Indochhoi,TehsilTohana, Distt. Fatehabad, Haryana.

…..Respondent

CORAM:    S.P.Sood, Judicial  Member

                  

Present:-    Mr.Tushar Gera, Advocate for theappellant.

                   Mr.SikanderBakshi, Advocate for the respondent.

 

                                                ORDER

S P SOOD, JUDICIAL MEMBER:

          The present appeal No.961 of 2019 has been filed against the order dated 06.07.2018 of the District Consumer Disputes Redressal Forum, Fatehabad (In short  now “District Commission”) in complaint case No.05 of 2018, which was allowed.

2.      There is a delay of 442 days in filing the appeal.  Appellant has filed an application under section 5 of the Limitation Act (in short “Act”)  for condonation of delay of  442 days wherein,  it is alleged that appellant  contacted his lawyer at Fatehabad from whom he came to know that his application for setting aside the ex parte award has been dismissed on 11.09.2019. He applied for certified copy, which was delivered on that date itself. He contacted a lawyer at Chandigarh on 22.09.2019 for filing appeal before this Commission. All the papers were handed over to the counsel. On 06.10.2019, it was communicated that there were Dussehra Holidays for a week and appeal shall be filed after the vacations. On 19.10.2019, the appellant once again contacted and counsel conveyed the message that a sum of Rs.25,000/- as pre deposit shall be required for filing the appeal. The appellant was not convinced with the advice rendered by him by the earlier counsel rather engaged the present counsel and after obtaining the papers from previous counsel and the same were handed over to the present counsel on 20.10.2019 and thereafter present appeal was filed after completing the procedural formalities.Thus, delay of 442 days in filing of the present appeal be condoned.

3.         Arguments Heard. File perused.

4.         Learned counsel for the appellant vehemently argued that appellant contacted a lawyer at Chandigarh on 22.09.2019 for filing appeal before this Commission and all papers werealso  handed over to said  counsel. On 06.10.2019, it was communicated that there were Dussehra Holidays for a week and appeal shall be filed after the vacations. On 19.10.2019, the appellant once again contacted counsel  andconveyed that a sum of Rs.25,000/- as pre deposit will be required for filing the appeal. The appellant was not convinced with the advice rendered by the earlier counsel and instead engaged the present counsel and after obtaining the papers from previous counsel, the same have been handed over to the present counsel on 20.10.2019 and then present appeal was filed after completing the procedural formalities.Due to theabove said reasons, the appeal could not be filed, so the delay may be condoned. 

5.         This argument is not available because the appellant has not provided the name of the previous counsel, who demanded the pre-requisite fee. The appellant has not disclosed the complete details of previous counsel.  A period of 30 days as per the Old Act has been provided for filing an appeal against the order of the District Commission. The proviso therein permits the State Commission to entertain an appeal after the expiry of the period of 30 days if it is satisfied that there is “Sufficient cause” for not filing the appeal within the prescribed period. The expression of sufficient cause has not been defined in the Act rightly so, because it would vary from facts and circumstances of each case.

6.                         The inordinate delay of 442 days cannot be condoned in the light of the following judgments passed by the Hon’ble Apex Court.

          The Hon’ble Supreme Court in case Bikram Dass Vs. Financial Commissioner and others, AIR, 1977 Supreme Court 1221 has held that;

“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 S.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 litigant who is not vigilant about his rights must explain every days delay.”

          The Hon’ble National Commission in case Government of U.T. Electricity Department & Others versus Ram Lubhai, II(2006) CPJ 104 has held that:-

“Consumer Protection Act, 1986 – Section 15 –Appeal –Maintainability – Limitation –Condonation of delay– Resjudicata –Appeal filed after a delay of 44 days –Plea of procedural delay in getting approval for filing appeal – Appeal filed by complainant against order of District Forum decided and copy of order dispatched to parties prior to filing of appeal by opposite party –Appeal and application for condonation of delay dismissed –Matter once finally concluded by any Court cannot be reopened by same Court.”

                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.”

      In Ram Lal and Ors.  Vs.  RewaCoalfields  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.”

         

7.      Taking into consideration the pleas raised by appellant in the application for condonation of delay and settled principle of law, this Commission does not find it a fit case to condone delay of 442 days in filing of the appeal. Hence application filed for condonation of delay  in appeal No.961 of 2019 is dismissed.  

8.      The brief facts of the case are that the complainant purchased seed for Narma Cotton make Ganpati 999 and Ganpati 1206 for an amount of Rs.4000/- vide receipt bearing No.9780 dated 25.04.2017 from the opposite party (OP). The complainant had sown the seed in his agriculture land measuring three acres. He also sprayed proper insecticides on the cotton crops nine times by spending an amount of Rs.45,000/- for getting a good yield. However it was noticed by him that some cotton plants were of good height whereas others were small in height and there were different types of flowers in his agriculture land.  Upon complaint, the crop was inspected by experts of agriculture department. On 31.08.2017 and opined that there was a possibility of 65% plants in the yield. Due to inferior quality of seed supplied by the OP, he suffered a loss to the tune of Rs.90,000/-. Thus there was deficiency in service on the part of the OP, hence the complaint.

9.      OP was proceeded against ex parte vide order dated 04.05.2018.

10.    After hearing complainant, District Consumer Disputes Redressal Forum, Fatehabad (In short “District Commission”) allowed the complaint vide impugned order dated 06.07.2018, which is as under:-

“Therefore the OP is directed to make a payment of Rs.90,000/- (Rs. Ninety thousand only) (65% OF Rs.1,50,000/- to the complainant. The OP is also further directed for making payment of Rs.10,000/- (Rs.Ten Thousand only) to the complainant as compensation and litigation charges. The OP is directed to comply with the order within a period of 45 days from the receipt of copy of this order, failing which the above said amount will carry an interest @ 7% per annum for the default period.”

11.    Feeling aggrieved therefrom, O.P. -appellant has preferred this appeal.

12.    The argumentswere advanced by Sh.Tushar Gera, learned counsel for the appellant and Shri Sikander Bakshi, learned counsel for the respondent. With their kind assistance entire record of appealas well as the original record of the District Commission including whatever evidence has been led on behalf of  parties has also been properly perused and examined.

13.     It is not disputed that the complainant purchased seeds from the O.P. It is also admitted that upon filing a complaint, a committee was constituted by Agriculture Department. Though, there was a report prepared by the officials of the Agriculture Department (Annexure C-1) which clearly reveals that cotton plants grown in the field in question were not of same height rather there were different variety of cotton plants in the field. The team of expert also observed that plants of sympodial and monopodial varieties were grown in the field.  The number of tindas per plant was 12 which was very less than the average number and further estimated the farmer will suffer a loss of 65%.

14.    In fact as per the matrix of the facts of the case, it is not in dispute that complainant had purchased seeds from O.P..  It is also not disputed that the above said seeds were sown in his land. Since the seeds purchased by the complainant were not of good quality,  that is why there was poor germination of the crop due to mixing of seed.  Since inspection report Annexure C-1 reveals cotton plants grown in the field in question were not of same height and different variety of cotton plants were in the field, and the team of experts also observed that plants of sympodial and monopodial varieties were grown in the field.  The number of tindas per plant was 12 which was very less than the average and further estimated the farmer will suffer a loss of 65%.  The report issued by Agriculture department cannot be ignored.  The learned District Forum has adequately and properly compensated the complainant and directed the O.Ps. to pay Rs.90,000/- on account of loss suffered by the complainant alongwithlitigation and compensation of Rs.10,000/-.

15.    In view of the above observation and discussion, no illegality could be found with the order  dated06.07.2018 passed by learned District Commission,  Fatehabad vide which the complaint was allowed and as such, the appeal being devoid of merits stands dismissed.

16.    The statutory amount of Rs.25,000/- deposited at the time of filing the appeal be refunded to the respondent-complainant-
Basau Ram against proper receipt and identification in accordance with rules, after the expiry of period of appeal/revision, if any.

 

27th April, 2023                                                                   S. P. Sood                                                                                                                            Judicial Member                            

 

S.K

(Pvt. Secy.)