Order No. 05 Date-17.02.2020
The instant order arising out of an application dated 24.12.2019 filed by the complainants praying for condonation of delay in filing the instant consumer complaint. Heard the complainant No. 1 in person who submits that they had entered into Purchase Agreement for Club and Vacation Membership dated 26.05.2011 with OP-1 Country Club (India) Ltd. against payment of Rs. 90,000/- for holiday package of 06 nights and 07 days or to spell of 02 nights and 03 days each per year at CCIL properties in India and Sri Lanka. Vacation entitlement also covers CCIL’s leased property in Bangkok till December, 2012 subject of payment of Rs. 6,000/- as annual maintenance charges. Complainant No. 1 has submitted that on good faith they signed the Purchase Agreement and never avail any tour programme since the inception of the agreement till 2018 on account of suffering illness. According to him, in 2019 they make a plan for tour within India taking help of OP-1 but such benefit has not been mentioned in the literature delivered by the representative of the OP-1. Ultimately, they requested the OP-1 vide letter dated 07.05.2019 to refund Rs. 90,000/- along with interest but the OP-1 denied to refund the money on the ground that there is no norm to refund membership amount. Hence, the consumer complaint seeking reliefs fully mentioned in the consumer complaint with a prayer to condone the delay.
FINDINGS
It is settled proposition of law that condonation of delay is not a matter of right and the complainants have to set out the case showing sufficient reasons for not being able to come to the Court / Commissions within the stipulated period of limitation. The Hon'ble Supreme Court in the matter of Ram Lal and Ors. Vs. Rewa Coalfields Limited reported in AIR 1962 Supreme Court 361 has held as under:
"It is, however, necessary to emphasise 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 condition precedent for the exercise of the discretionary jurisdiction vested in the Court by Section 5. If sufficient cause is not proved nothing further has to be done; the application for condoning delay 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."
The burden is put upon the applicant to show sufficient causes for the delay. The expression 'sufficient cause' has been discussed and defined by the Hon'ble Supreme Court in the case of Basawaraj & Anr. Vs. The Spl. Land Acquisition Officer, 2013 AIR SCW 6510, as under:
"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 bonafide 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 he 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 bonafide or was merely a device to cover an ulterior purpose. (See: Manindra Land and Building Corporation Ltd. V. Bhootnath Banerjee &Ors, AIR 1964 SC 1336; LalaMatadin V. A.Narayanan, AIR 1970 SC 1953; Parimal V. Veena alias Bharti AIR 2011 SC 1150 L2011 AIR SEW 1233); and ManibenDevraj Shah V. Municipal Corporation of Brihan Mumbai, AIR 2012 SC 1629: (2012 AIR SCW 2412).
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It is a settle legal proposition that law of 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. " A result flowing from a statutory provision is never an evil. A Court has no power to ignore that provision to relieve what it considers a distress resulting from its operation." 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. The legal maxim "dura lexsedlex" which means "the law is hard but it is the law", stands attracted in such a situation. It has consistently been held that, "inconvenience is not" a decisive factor to be considered while interpreting a statute.
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The law on the issue can be summarized to the effect that where a case has been presented in the court beyond limitation, the applicant has to explain the court as to what was the " sufficient cause" which means an adequate and enough reason which prevented him to approach the court within limitation. In case a party is found to be negligent, or for want of bona fide on his part in the facts and circumstances of the case, or found to have not acted diligently or remained inactive, there cannot be a justified ground to condone the delay. No court could be justified in condoning such an inordinate delay by imposing any condition whatsoever. The application is to be decided only within the parameters laid down by this court in regard to the condonation of delay. In case there was no sufficient cause to prevent a litigant to approach the court on time condoning the delay without any justification, putting any condition whatsoever, amounts to passing an order in violation of the statutory provisions and it tantamounts to showing utter disregard to the legislature".
The Hon'ble Supreme Court has clearly held that party who has not acted diligently or remain inactive is not entitled for condonation of delay. The Hon'ble Supreme Court in the case of "R. B. Ramlingam vs. R. B. Bhavaneshwari, I (2009) CLT 188 (SC)" has also described the test for determining whether the petitioner has acted with due diligence or not. The Hon'ble Supreme Court has held as under:
"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."
Also in the case of " Anshul Aggarwal Vs. New Okhla Industrial Development Authority (2011) 14 SCC 578, the Hon'ble Supreme Court has warned the Commissions to keep in mind while dealing with such applications the special nature of the Consumer Protection Act. The Hon'ble Supreme Court has held 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 foras."
In the instant case the Purchase Agreement for Club and Vacation Membership was executed on 26.05.2011 between the complainants and the OP-1. Both the complainants acknowledged and confirmed the terms and conditions, Rules and regulations, bye laws of CCIL by signing on the agreement. The membership is for 2011 to 2020. It is admitted fact that the complainants failed to pay annual maintenance charges at the rate of Rs 6,000/- per year to the OP-1 in spite of knowing the terms and condition of the purchase agreement. The instant consumer complaint has been filed after 08 years and 07 months from the date of execution of the purchase agreement. The decision cited by the complainants passed in civil appeal No. 15611 of 2017 (Om Prakash vs. Reliance General Insurance and Anr.) the Hon’ble Apex Court condone the delay of 08 days but in the instant case there is inordinate delay.
In view of these facts and view of the discussion, there is no merit in the impugned application. We find no sufficient ground to condone the delay. The application for condonation of delay is accordingly dismissed.
Thus, the MA being No. 678 of 2019 is disposed of.
As a consequence, consumer complaint is also dismissed in limine being barred by limitation.
In view of dismissal of the complaint the Miscellaneous Application dated 24.12.2019 U/s. 11 (2) (b) of C.P. Act, 1986 is in-fractious.
Thus, the MA being No. 677 of 2019 is disposed of.
