Chandigarh

StateCommission

A/64/2015

Sahil Puri - Complainant(s)

Versus

The Manager of the Housing Development Finance Corporation Ltd, - Opp.Party(s)

Vikram Preet Arora

01 Apr 2015

ORDER

STATE CONSUMER DISPUTES REDRESSAL COMMISSION,

U.T., CHANDIGARH

First Appeal No.	:	64 of 2015
Date of Institution	:	13.03.2015
Date of Decision	:	01.04.2015

 

1. Mr.Sahil Puri son of Mr.Balvinder Singh Puri.
2. Mr.Balvinder Singh Puri son of Late Shri Lachhman Dass.
3. Mrs.Meena Kumar wife of Mr.Balvinder Singh Puri.

All residents of House No.93/1, Sector 45-A, Chandigarh-160047.

……Appellants/Complainants

 

V e r s u s

The Manager of the Housing Development Finance Corporation Limited, SCO No.153-155, Sector 8-C, Madhya Marg, Chandigarh-160018.

              ....Respondent/Opposite Party

Appeal under Section 15 of the Consumer Protection Act, 1986.

 

BEFORE: JUSTICE SHAM SUNDER (RETD.), PRESIDENT.

                MR. DEV RAJ, MEMBER.

                MRS. PADMA PANDEY, MEMBER

 

Argued by:Sh. Vikram Preet Arora, Advocate for the appellants.

                 Sh. Shekhar Verma, Advocate for the respondent.

 

PER JUSTICE SHAM SUNDER (RETD.), PRESIDENT

            This appeal is directed against the order dated 27.08.2014, rendered by the District Consumer Disputes Redressal Forum-II, U.T., Chandigarh (hereinafter to be called as the District Forum only) vide which, it dismissed the consumer complaint, bearing No.280 of 2014, for non-prosecution.     

2.       The facts, in brief, are that the consumer complaint bearing No. 280 of 2014 was filed by the complainants, against the Opposite Party, on the ground that though the loan applied for by them to the tune of Rs.25 lacs, was sanctioned on 08.01.2011, by it (Opposite Party) and the cheques of the said amount were handed over/released in their favour finally on 04.07.2011, yet it (Opposite Party),  charged interest thereon (Rs.25 lacs), from January 2011. It was stated that, not only this, while submitting documents, in respect of the said loan amount, it was requested by the complainants, to the Opposite Party, to reduce the loan amount to Rs.15 lacs, from Rs.25 lacs, as per their requirement but to no avail. It was further stated that the complainants approached the Opposite Party, through every possible means, for redressal of their grievance, but to no avail.  It was further stated that the aforesaid acts of the Opposite Party, amounted to deficiency, in rendering service, as also indulgence into unfair trade practice. When the grievance of the complainants was not redressed, left with no alternative, a complaint under Section 12 of the Consumer Protection Act, 1986 (hereinafter to be called as the Act only), was filed, seeking various reliefs.
3.       The Opposite Party, in its written version, pleaded that the complaint was barred by limitation. It was stated that the loan, in question, was sanctioned in favour of the complainants, on 09.12.2010, whereafter the same could have been availed of by them at any time, within next six months, but since they (complainants) insisted for immediate disbursement  of  the same, as such, they were asked to submit certain documents, but they failed to do so. It was further stated that if the cheques, in question, were not realized by the complainants, in time, delay could not be attributed to the Opposite Party. It was further stated that the complainants never raised any protest, for charging of interest w.e.f. 08.01.2011, on the said loan amount. It was further stated that neither there was any deficiency, in rendering service, on the part of the Opposite Party, nor it indulged into unfair trade practice. The remaining averments, were denied, being wrong.
4.       The Parties led evidence, in support of their case.
5.       On 27.08.2014, when the consumer complaint bearing No.280 of 2014 was fixed for furnishing of legible copies of some documents, and filing of rejoinder by the complainants, to the reply and evidence filed by the Opposite Party, none entered appearance, on their (complainants) behalf upto 4.00 P.M., and, accordingly, the same (complaint) was dismissed for non-prosecution.
6.       Feeling aggrieved, the instant appeal was filed by the appellants/complainants.
7.       We have heard the Counsel for the parties, and have gone through the record of the case, carefully. 
8.        Sh.Vikram Preet Arora, Counsel for the appellants/complainants, who was also Counsel, in the main complaint, submitted that, no doubt, on 27.08.2014, none put in appearance, on behalf of the complainants, as a result whereof, the same was dismissed, for non-prosecution, by the District Forum. He further submitted that since he (Sh.Vikram Preet Arora) had to attend a case, in the Hon'ble Supreme of Court of India, as such, he had told his colleague Mr. Munish Jhanji, Advocate, to put in appearance, on his behalf, before the District Forum, on the said date (27.08.2014) and make a request for short date. He further submitted that, since on 27.08.2014, the wife of Mr. Munish Jhanji, Advocate, was unwell, he also could not put in appearance before the District Forum, on the said date, as a result whereof, the consumer complaint was dismissed for non-prosecution. He further submitted that the absence of the complainants or their Counsel, on the date fixed, was neither intentional, nor deliberate, but for the reasons, aforesaid. He further submitted that, in case, the order impugned is not set aside, irreparable injury is likely to occasion, to the appellants/complainants, as, in that event, they would be condemned unheard. He further submitted that, thus, the order of the District Forum, being illegal, is liable to be set aside.
9.       On the other hand, the Counsel for the respondent/Opposite Party, submitted that the absence of the complainants (now appellants), on 27.08.2014, was intentional and deliberate, as they were not interested in pursuing their case. He further submitted that the order of the District Forum, being legal and valid, is liable to be upheld.  
10.       After giving our thoughtful consideration, to the rival contentions, advanced by the Counsel for the parties and, on going through the record, we are of the considered opinion, that the appeal deserves to be accepted, and the case is liable to be remanded back, for fresh decision, on merits, in accordance with law, for the reasons, to be recorded hereinafter. The complaint was, for the first time, put up before the District Forum, on 29.05.2014, and, notice was ordered to be issued to the Opposite Party for 09.07.2014. At the same time, directions were also given to the complainants, to file legible copies of certain documents at pages No.18 to 21, placed on record by them. On 09.07.2014, Sh. Shekhar Verma, Advocate, put in appearance, on behalf of the Opposite Party, and filed his vakalatnama alongwith copies of letter of authority and resolution. However, legible copies of documents, aforesaid, were not filed by the complainants. As such, the consumer complaint was adjourned to 01.08.2014 for filing reply and evidence, on behalf of the Opposite Party, as also for furnishing legible copies of the documents, aforesaid, by the complainants. On 01.08.2014, reply and evidence, on behalf of the Opposite Party was filed, yet,  legible copies of the said documents were not filed by the complainants. The consumer complaint was, thereafter, adjourned to 27.08.2014, for filing legible copies of the said documents, and rejoinder, on behalf of the complainants. However, as stated above, on 27.08.2014, none put in appearance, on behalf of the complainants, on account of the reason that the main Counsel, had to attend a case, in the Hon'ble Supreme of Court of India, whereas, on the other hand, Mr. Munish Jhanji, Advocate, who was requested by him (main Counsel), to put in appearance, on his (main Counsel) behalf, before the District Forum, for making a request for a short date, could not do so, as his (Munish Jhanji, Advocate) wife was unwell, on the said date (27.08.2014), as a result whereof, the consumer complaint was dismissed for non-prosecution. In our considered opinion, in the interest of justice, the District Forum should have granted one more opportunity, to the complainants, but it did not, and straightway dismissed the complaint in default.
11.       It is settled principle of law that every lis should normally be decided, on merits, than by resorting to hyper-technicalities. When hyper-technicalities, and the substantial justice, are pitted against each other, then the latter shall prevail over the former. The procedure, is, in the ultimate, the handmaid of justice, meant to advance the cause thereof, than to thwart the same. As stated above, the District Forum could give last opportunity to the complainants, and adjourn the consumer complaint, to some short date, but it did not do so and, on the other hand, dismissed the same (complaint) for non-prosecution. 
12.       No doubt,  a specific stand was taken by the Counsel for the appellants/complainants, that since he (Counsel in the complaint also) had to attend a case in the Hon'ble Supreme Court of India, and, as such, he requested Mr. Munish Jhanji, Advocate, to put in appearance, on his behalf, before the District Forum, for making a request for short date, yet he also could not do so, as his wife was unwell, on the said date (27.08.2014), as a result whereof, the consumer complaint was dismissed for non-prosecution,  yet, it was required of him (main Counsel), to confirm by making a telephonic call to him (Mr. Munish Jhanji), as to whether, he had appeared or not, on his behalf there (District Forum).  Since, the main Counsel did not take the requisite measures, referred to above, negligence was attributable to him. It is settled principle of law, that for the negligence or inadvertence of the Counsel, the party should not suffer. In our considered opinion, an opportunity should be afforded to the complainants, to prosecute the complaint, so that the same could be decided, on merits, and the rights of the Parties are finally determined by one Forum, one way or the other. In this view of the matter, the order impugned is liable to be set aside.
13.       On account of the inadvertence or negligence of the complainants or their Counsel, delay in the disposal of  complaint, on merits, was caused.   According to Section 13 (3A) of the Act, an endeavour shall be made that every complaint is decided, within three months, from the date of service of the Opposite Party(s), except the one, in which the goods are required to be sent to the Laboratory for examination. In that event, an endeavour shall be made that the complaint is decided, within a period of 5 months, from the date of service of the Opposite Parties. The complaint had been filed on 29.05.2014. A period of three months has already lapsed, much earlier. For causing delay, in the disposal of complaint, on merits, the appellants are required to be burdened with costs.
14.       For the reasons recorded above, the appeal is accepted.  The order impugned is set aside. The complaint is remanded back to the District Forum, with a direction to restore  the same, to its original number, proceed further,  from the stage, at which, it was dismissed, for non-prosecution, and decide the same, afresh, on merits, in accordance with the provisions of the Act. However, the appellants/ complainants are burdened with costs of Rs.10,000/- for causing delay, in the disposal of complaint, afresh, on merits. The payment of costs to the respondent/Opposite Party, shall be a condition precedent. 
15.       The Parties are directed to appear, before District Forum (II) on 15.04.2015, at 10.30 A.M., for further proceedings. 
16.       The District Forum record, alongwith a certified copy of the order, be sent back immediately, so as to reach there, well before the date and time fixed i.e. 15.04.2015, at 10.30 A.M.
17.       Certified copies of this order, be sent to the parties, free of charge.
18.       The file be consigned to the Record Room, after due completion.

Pronounced.

April 1, 2015

Sd/-

[JUSTICE SHAM SUNDER (RETD.)]

PRESIDENT

 

 

 

Sd/-

(DEV RAJ)

MEMBER

 

 

 

Sd/-

(PADMA PANDEY)

      MEMBER

 

 

Rg

 

 

 

 

 

 

STATE COMMISSION

(First Appeal No. 64 of 2015)

 

Argued by:Sh. Vikram Preet Arora, Advocate for the applicants/             appellants.

                 Sh. Shekhar Verma, Advocate for the respondent.

 

Dated the 1^st  day of April 2015

 

ORDER

 

                  Alongwith the appeal, an application, for condonation of delay of 164 days, as per the applicants/appellants (as per the office report 156 days), in filing the appeal, has been moved, by the applicants/appellants, stating therein that, no doubt, the appeal was required to be filed within 30 days, from the date of receipt of a certified copy of the order impugned, yet, the consumer complaint bearing No.280 of 2014 having been dismissed for non-prosecution, by the District Forum,  they (applicants/ appellants) under the bonafide belief, filed a fresh consumer complaint, bearing No.477 of 2014, before the District Forum. It was further stated that in the said fresh consumer complaint, it was clearly disclosed by the complainants, that they earlier filed a consumer complaint, bearing No.280 of 2014, which was dismissed for non-prosecution.  It was further stated that the said fresh consumer complaint bearing No. 477 of 2014, was admitted by the District Forum, wherein written reply and evidence were also filed by the Opposite Party.  It was further stated that the said fresh consumer complaint remained pending, before the District Forum, for about six months, and finally the arguments were heard, in the same, at length, and it was reserved for orders, on 10.02.2015. It was further stated that the District Forum, vide order dated 19.02.2015, dismissed the same, being not maintainable, at the belated stage. It was further stated that since the complainants had been prosecuting the consumer complaint bearing No.477 of 2014, before the District Forum, in good faith and under the bonafide belief that it was maintainable, the period spent by them, therein,  was liable to be excluded for computation of the period of limitation, for filing the instant appeal, before this Commission, against the order dated 27.08.2014, passed in the consumer complaint, bearing No.280 of 2014. It was further stated that, in these circumstances, the delay of 164 days, as per the applicants/appellants (as per the office report 156 days), in filing the appeal occurred. It was further stated that the delay, in filing the appeal, was neither intentional, nor willful. Accordingly, the prayer, referred to above, was made.

2.       Notice of this application, was given to respondent. In reply, it was stated by the respondent, that since the delay, in filing the appeal, was intentional and willful, as such, the same (application), is liable to be dismissed.
3.           We have heard the Counsel for the parties, on the application aforesaid, and have gone through the record.
4.       No doubt, there is delay of 164 days, as per the applicants/appellants (as per the office report 156 days), in filing the appeal. The question arises, as to whether, the delay was intentional, or on account of the reasons, beyond the control of the applicants/ appellants. Before discussing this question, let us have a look at law, laid down by the Hon'ble Supreme Court, and the Mumbai (Maharashtra) High Court, regarding the condonation of delay.  In Lanka Venkateswarlu (D) By Lrs. vs State Of A.P. and Ors., A.I.R. 2011 S.C. 1199: (2011) 4 S.C.C. 190, the Apex Court held as under:-

 (i).   The Courts generally adopt a liberal approach in considering the application for    condonation of delay on the ground of   sufficient cause under Section 5 of the   Limitation Act.

 (ii).  Rules of limitation are not meant to destroy the rights of parties. They are meant to see that the parties do not resort to dilatory tactics, but seek their remedy promptly.

 (iii). Once a valuable right has accrued in favour of one party as a result of the failure of the other party to explain the delay by showing sufficient cause and its own conduct, it will be unreasonable to take away that.

 (iv). Whilst considering applications for condonation of delay under Section 5 of the Limitation Act, the Courts do not enjoy unlimited and unbridled discretionary powers. All discretionary powers, especially judicial powers, have to be exercised within reasonable bounds, known to the law”.

5.       In N.Balakrishnan Vs. M.Krishnamurthy   (1998) 7 Supreme Court Cases 123, there was a delay of 883 days, in filing application, for setting aside exparte decree, for which application for condonation of delay was filed, the Apex Court held as under:-

“It is axiomatic that condonation of delay is a matter of discretion of the court. Section 5 of the Limitation Act does not say that such discretion can be exercised only if the delay is within a certain limit. Length of delay is no matter, acceptability of the explanation is the only criterion. Sometimes delay of the shortest range may be uncondonable due to a want of acceptable explanation whereas in certain other cases, delay of a very long range can be condoned as the explanation thereof is satisfactory. Once the court accepts the explanation as sufficient, it is the result of positive exercise of discretion and normally the superior court should not disturb such finding, much less in revisional jurisdiction, unless the exercise of discretion was on wholly untenable grounds or arbitrary or perverse. But it is a different matter when the first court refuses to condone the delay. In such cases, the superior court would be free to consider the cause shown for the delay afresh and it is open to such superior court to come to its own finding even untrammeled by the conclusion of the lower court.

10. The primary function of a court is to adjudicate the dispute between the parties and to advance substantial justice. The time- limit fixed for approaching the court in different situations is not because on the expiry of such time a bad cause would transform into a good cause."

The Court further observed in paragraphs 11, 12 and 13 which run thus:-

"11. Rules of limitation are not meant to destroy the rights of parties. They are meant to see that parties do not resort to dilatory tactics, but seek their remedy promptly. The object of providing a legal remedy is to repair the damage caused by reason of legal injury. The law of limitation fixes a lifespan for such legal remedy for the redress of the legal injury so suffered. Time is precious and wasted time would never revisit. During the efflux of time, newer causes would sprout up necessitating newer persons to seek legal remedy by approaching the courts. So a lifespan must be fixed for each remedy. Unending period for launching the remedy may lead to unending uncertainty and consequential anarchy. The law of limitation is thus founded on public policy. It is enshrined in the maxim interest reipublicae up sit finis litium (it is for the general welfare that a period be put to litigation). Rules of limitation are not meant to destroy the rights of the parties. They are meant to see that parties do not resort to dilatory tactics but seek their remedy promptly. The idea is that every legal remedy must be kept alive for a legislatively fixed period of time.

12. A Court knows that refusal to condone delay would result in foreclosing a suitor from putting forth his cause. There is no presumption that delay in approaching the court is always deliberate. This Court has held that the words "sufficient cause" under Section 5 of the Limitation Act should receive a liberal construction so as to advance substantial justice vide Shakuntala Devi Jain v. Kuntal Kumari (1969) 1 SCR 1006 and State of W.B. v. Administrator, Howrah Municipality (1972) 1 SCC 366.

13. It must be remembered that in every case of delay, there can be some lapse on the part of the litigant concerned. That alone is not enough to turn down his plea and to shut the door against him. If the explanation does not smack of mala fides or it is not put forth as part of a dilatory strategy, the court must show utmost consideration to the suitor. But when there is reasonable ground to think that the delay was occasioned by the party deliberately to gain time, then the court should lean against acceptance of the explanation. While condoning the delay, the court should not forget the opposite party altogether. It must be borne in mind that he is a loser and he too would have incurred quite large litigation expenses. "

6.           In Jyotsana Sharda vs Gaurav Sharda, (2010-3) 159 P.L.R. D15, Mumbai (Maharashtra) High Court, while condoning 52 days delay, in filing the appeal, observed as under:-

“No doubt, originally the Apex Court in Ram Lal Vs. Rewa Coalfield AIR 1962 SC 351 had held that while seeking condonation of delay under Section 5 of the Limitation Act the application must not only show as to why he did not file the appeal on the last day of limitation but he must explain each day's delay in filing the appeal. The later judgments of the Apex Court have considerably diluted this requirement of explaining each days delay by a party. The latest trend and the ratio cases which the Apex Court has laid down in the judgments is that the Court must adopt a liberal approach rather than pedantic approach while doing so. It must see the bonafides of the person who is preferring the appeal rather than seeing the quantum of delay which has been occasioned. Reliance in this regard can be placed on Collector, Land Acquisition, Anantnag and Anr. Vs. Mst. Katiji & Ors. AIR 1987 SC 1353”.

 

7.           The principle of law, laid down, in the aforesaid cases, is fully applicable, to the facts of the instant case. It may be stated here that, no doubt, earlier the consumer complaint, bearing No.280 of 2014 was filed before the District Forum,  on 27.05.2014, as is evident, from the record, which was dismissed, for non-prosecution by it, vide order dated 27.08.2014, for the reasons, explained in the main order. Instead of filing an appeal against the order dated 27.08.2014,  the complainants filed a fresh consumer complaint, bearing No. 477 of 2014, which remained pending in the District Forum, for about six months, and, ultimately, the same was dismissed by it, being not maintainable, vide order dated 19.02.2015. Thus, it appears that the complainants were prosecuting the consumer complaint, bearing No. 477 of 2014, before the District Forum, in good faith, and under the bonafide belief, that it was maintainable, as the same had been admitted by the District Forum. However, as stated above,  the  consumer complaint, bearing No. 477 of 2014, was dismissed by the District Forum, vide order dated 19.02.2015, being not maintainable. Thus, the period spent by the complainants, in prosecuting the second complaint, before the District Forum, was required to be excluded, while computing the period of limitation. Even such principle of law, was laid down, in Laxmi Engineering Works v. PSG Industrial Institute, II (1995) CPJ 1 (SC). Once, that period is excluded, while computing the period of limitation, the instant appeal having been filed on 13.03.2015, could certainly be said to be within time. It appears that, as a precautionary measure, the applicants/appellants, filed the instant application for condonation of delay of 164 days, (as per the office report 156 days), in filing the appeal. The appeal, therefore, could not be said to barred by time, in any manner. The application stands disposed of accordingly, as having been rendered infructuous.
8.           For the reasons recorded above, the appeal is ordered to be admitted.
9.           It be registered.
10.           Arguments, in the main appeal have already been heard.
11.           Vide our detailed order of the even date, recorded separately, this appeal has been accepted.  The order impugned has been set aside. The complaint has been remanded back to the District Forum, with a direction to restore  the same, to its original number, proceed further,  from the stage, at which, it was dismissed, for non-prosecution, and decide the same, afresh, on merits, in accordance with the provisions of the Act. However, the appellants/ complainants have been burdened with costs of Rs.10,000/- for causing delay, in the disposal of complaint, afresh, on merits. 
12.           The Parties have been directed to appear, before District Forum (II) on 15.04.2015, at 10.30 A.M., for further proceedings. 
13.           Certified copies of this order, be sent to the parties, free of charge

 

 

Sd/-                                   Sd/-                                            Sd/-

(DEV RAJ) MEMBER

(JUSTICE SHAM SUNDER (RETD.)) PRESIDENT

(PADMA PANDEY) MEMBER

Rg