Per Mrs.Usha S. Thakare, Hon’ble Presiding Judicial Member
This is an application filed by the applicants/appellants for condonation of delay in filing appeal.
2. Being aggrieved by the order dated 29/06/2013 in consumer complaint No.389/2012 passed by District Forum, Pune, the applicants/appellants have preferred the appeal. However, there is delay of 113 days. Hence, they have filed present application for condonation of delay.
3. According to the applicants/appellants they have been made parties to the complaint without impleading the company i.e. Country Club India Ltd. as a necessary party. The agreement is between the complainants and the company. Therefore, complaint itself was bad in law. Said complaint was proceeded ex-parte against the applicants/appellants. Judgment passed against them is ex-parte judgment. Therefore, true facts were not brought on record by the complainant.
4. It is further submitted that the applicants/appellants got knowledge of ex-parte judgment recently i.e. on or about 25/10/2013. On that date, representative of the company visited the District Forum, Pune. During his visit he found that the Execution Application bearing No.EA/13/35 is pending before the District Forum, Pune. On getting knowledge of ex-parte judgment, representative of the company applied for certified copy of impugned order. Certified copy of order was obtained on 29/10/2013. On learning the same, applicants/appellants instantly approached to this Commission to file appeal. They are mere officer and employee of Country Club India who has not been made necessary party to the complaint. Appeal is filed immediately after getting knowledge of the order. However, there is delay of 113 days in filing appeal from the date of order which may be condoned.
5. Application for condonation of delay is opposed by the non-applicants/respondents.
6. Heard Learned Counsel Mr.Prasad Apte i/b. Advocate Mr.G.K. Tripathi for the applicants/appellants and Learned Authorised Representative Mr.Bijan Roy for the non-applicants/respondents.
7. Learned District Forum passed the order in consumer complaint bearing No.389/2012 on 29/06/2013. The complaint was proceeded ex-parte against the present applicants/appellants. It is observed in the judgment that they failed to appear in spite of notices were duly served to them. The complaint is filed against the Managing Director of Country Club India Ltd. and Manager of Country Vacations. After passing judgment, certainly, free copy of the order was issued to the applicants/appellants-original opponents. Applicants/appellants are on key posts at Country Club India Ltd. They have not explained as to why free copy of the order was not received by them. It is not the case of applicants/appellants that free copy was not sent by the District Forum to them.
8. Admittedly, original complainants have filed Execution Application bearing No.EA/13/35 against the present applicants/appellants by alleging that applicants/appellants have not complied the order passed by Learned District Forum.
9. It is the stand of the applicants/appellants that they came to know about ex-parte judgment on 25/10/2013 when Representative of the company visited the District Forum, Pune on 25/10/2013. Name of said Representative is not disclosed by the applicants/appellants in the application. The nature of work is not made clear for which he was required to go to District Forum at Pune on that particular date. The applicants/appellants ought to have filed affidavit of said Representative in support of delay condonation application. It appears that after filing Execution Application by the non-applicants/respondents, applicants/appellants thought to prefer appeal.
10. It is brought to my knowledge by Learned Authorised Representative for the non-applicants/respondents that before filing of consumer complaint, notice was issued to the present applicants/appellants on 16/06/2012 through their Counsel Mr.S.M. Kelkar. Said notice was replied by present applicants/appellants through their Counsel Mr.AP JP Dubey. The applicants/appellants were well aware about intention of filing of complaint by the non-applicants/complainants against them due to deficiency on their part in rendering services. In spite of receipt of notices, they failed to appear before the Learned District Forum, Pune. They cannot take advantage of their own fault by saying that judgment passed against them was ex-parte judgment. It is due to their own negligence complaint was proceeded ex-parte against them. Delay in filing appeal is the negligent act on the part of the applicants/appellants.
11. On careful perusal of the application, it appears that one Managing Director of Country Club India has signed the application. In fact application is filed by two applicants. It is signed by only one applicant. It is verified by one Managing Director. His name is not disclosed in the application and in the verification. It is urged that the agreement with the non-applicants/complainants is signed by the applicants and now they cannot take a ‘U’ turn. If the applicants would have exercised due diligence they could have come to know about the order passed against them and could have avoided the delay. They failed to exercise due diligence.
12. I find substance in the arguments advanced on behalf of non-applicants/respondents-original complainants. The grounds put forth by the applicants/appellants to condone the delay cannot be termed as sufficient reasons. Said grounds are not at all sufficient to condone the delay.
13. Hon’ble Apex Court in the case of Anshul Aggrawal V/s. New Okhla Industrial Development Authority, IV (2011) CPJ 63 (SC) held that -
“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 order of the Consumer Fora.”
Hon’ble Apex Court in the case of Balwant Singh V/s. Jagdish Singh & Ors., SLT 790 = III (2010) CLT 201 (SC) held that -
“The party should show that besides acting bona fide, it had taken all possible steps within its power and control and had approached the Court without any unnecessary delay. The test is whether or not a cause is sufficient to see whether it could have been avoided by the party by the exercise of due care and attention.”
14. Application for condonation of delay is devoid of any merit and it deserves to be dismissed. Hence, the following order :-
-: ORDER :-
1.Application for condonation of delay is dismissed. Consequently, appeal is not entertained.
2.Parties to bear their own costs.
3.Copies of the order be furnished to the parties.
Pronounced
Dated 31st July 2014.
