Chandigarh

StateCommission

A/25/2023

MR. ANIL AND ANOTHETR - Complainant(s)

Versus

VIJAY KUMAR MANGLA - Opp.Party(s)

TEJWINDER SINGH GILL

05 Oct 2023

ORDER

STATE CONSUMER DISPUTES REDRESSAL COMMISSION,

U.T., CHANDIGARH

 

Appeal No.	:	25 of 2023
Date of Institution	:	09.02.2023
Date of Decision	:	05.10.2023

 

 

 

 

 

1. Mr.Anil (Mobile No.93577-08989), Proprietor Kitchen World, Shop No.149(Basement), Panchkula, Shopping Complex, Dhakoli (Zirakpur), Mohali-140603.
2. Mr.Daksh Tarnach (Mobile No.85912-84193) son of Mr.Anil c/o M/s Kitchen World, Shop No.149(Basement), Panchkula, Shopping Complex, Dhakoli (Zirakpur), Mohali-140603.

…Appellants/opposite parties

V e r s u s

Vijay Kumar Mangla (Mobile No.98140-75369),  son of Sh.Dewan Chand aged about 48 years resident of H.No.2823, Sector 22-C, Chandigarh -160022.

….Respondent/complainant

BEFORE:

JUSTICE RAJ SHEKHAR ATTRI, PRESIDENT. MR.RAJESH K. ARYA, MEMBER

  

Present:-    Sh. Tejwinder Singh Gill, Advocate for the appellants.

                    Sh. Kamal Kant Verma, Advocate for the respondent alongwith                respondent no.1 in person.

                  

 

JUSTICE RAJ SHEKHAR ATTRI, PRESIDENT

 

                   This appeal has been filed beyond the period of limitation of 272 days  and the same is supported by an application under Section 5 of the  Limitation Act. Record of main consumer complaint bearing no.309 of 2021 was requisitioned and received by this Commission from the District Commission.

2.                     By way of filing this appeal, the appellants have assailed the orders dated 09.03.2022 (infact 13.01.2022), whereby they were proceeded against exparte by the  District Commission-II, U.T., Chandigarh (in short the District Commission) for their non appearance in the main consumer complaint aforesaid and also final order dated 16.03.2022 vide which the said consumer complaint was allowed against them by the District Commission.
3.           We have heard the contested parties and scanned the record of the District Commission.
4.           Section 41 of the Consumer Protection Act, 2019 (in short CPA 2019) provides as under:-

“………..41. Any person aggrieved by an order made by the District Commission may prefer an appeal against such order to the State Commission on the grounds of facts or law within a period of forty-five days from the date of the order, in such form and manner, as may be prescribed:

Provided that the State Commission may entertain an appeal after the expiry of the said period of forty-five days, if it is satisfied that there was sufficient cause for not filing it within that period:

•  

5.           The term sufficient cause has the same meaning as provided under Section 5 of the Limitation Act. Before deciding this case, it is significant to mention here that this Commission has to keep in mind the broad principles laid down in a catena of decisions of the Hon’ble Supreme Court, viz. ‘sufficient cause’ cannot be construed liberally if negligence, inaction or lack of bonafides are attributable to the party, praying for exercise of such discretion in its favour, and that when a statute provides for a particular period of limitation, it has to be applied with all its rigors, as an unlimited limitation leads to a sense of uncertainty.
6.           Undisputedly, in the present case, the impugned order dated 13.01.2022 was passed by the District Commission, whereby the applicants were proceeded against exparte for their non appearance before the District Commission, followed by final order dated 16.03.2022 allowing the main consumer complaint.
7.           In para no.3 of the application for condonation of delay, it has been stated by the applicants that they came to know of passing of orders dated 09.03.2022 (infact 13.01.2022),  and 16.03.2022 only on 12.09.2022 and as such certified copies of the said orders were applied before the District Commission on 12.09.2022, which were supplied to the applicant no.1 on 15.09.2022. Perusal of the record of the District Commission also revealed that it was for the first time on 12.09.2022 that the applicants had applied for certified copies of the orders  impugned, which were supplied to them on 15.09.2022.
8.           It may be stated here that the instant appeal has been filed by the applicants on 09.02.2023. However, there is no explanation on behalf of the applicants regarding the delay in filing this appeal between 16.09.2022 to 08.02.2023 i.e. around 5 months. Besides this, it has not been explained by the applicants, as to why they failed to appear before the District Commission in the main consumer complaint on  13.01.2022, as a result of which, they were proceeded against exparte.
9.           Furthermore, record of the District Commission reveals that earlier, miscellaneous application bearing no.207 of 2022 was filed by the applicants before the District Commission on 16.12.2022, which was duly sworn by way of affidavit of the Anil (present applicant no.1), for setting aside the exparte order dated 13.01.2022,  and also order dated 16.03.2022, whereby the main consumer complaint was allowed by the District Commission. Alongwith this miscellaneous application bearing no.207 of 2022 also, the applicants had filed application for condonation of delay of 241 days, taking same grounds, as have been taken in the present application. However, the said miscellaneous application bearing no.207 of 2022 was withdrawn by the applicants on 10.01.2023, with liberty to file a fresh one on the same cause of action before the appropriate Authority/ Court/Forum/Commission as per law.

The contents of miscellaneous application bearing no.207 of 2022 as well as the affidavit attached therewith transpires that on 09.03.2022 itself, the applicants were in the knowledge of passing of order exparte dated 13.01.2022, by the District Commission. However there is no explanation as to why, when the applicants came to know about passing of the exparte order dated 13.01.2022 on 09.03.2022 itself,there was delay in filing the said miscellaneous application bearing no.207 of 2022 before the District Commission on 16.12.2022 for setting aside the said exparte order, which too was not maintainable before the District Commission.

10.           At the same time, it is significant to mention here that the applicants have failed to apprise this Commission regarding any law which says that the exparte proceedings can be set aside by the District Commission or that there was any error apparent on record while passing order dated 13.01.2022 by the District Commission, proceeding them exparte, especially, when the complainant/respondent-Vijay Kumar Mangla, by way of moving application dated 07.01.2022 before the District Commission, has placed on record the Postal Report confirming delivery of summons of main consumer complaint upon the applicants. The applicants have failed to apprise as to why they failed to appear before the Commission despite the fact that they were  served in the main consumer complaint. The applicants have also failed to convince this Commission as to why,  there was delay in filing the miscellaneous application bearing no.207 of 2023 before the District Commission on 16.12.2022 when admittedly they received certified copies of the orders impugned on 15.09.2022. Thus, from the act and conduct of the applicants, it can easily be said that it was not because of any bonafide mistake on their part but on the other hand,  it seems to be an intentional act, and, as such, they are not entitled to get any benefit of the time spent before the District Commission in miscellaneous  application no.207 of 2022.
11.           Under above circumstances, this Commission is of the view that the appellants have been unable to make out a convincing case of having sufficient cause to justify the delay of 272 days in filing this appeal.
12.           In “Basawaraj and Ors. Vs. The Spl. Land Acquisition Officer, AIR 2014 SC 746”; the Hon’ble Apex Court had observed inter alia –

 

“9. 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 bona fide 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 the 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.”

 

13.           The Hon’ble Apex Court in Sanjay Sidgonda Patil vs. Branch Manager, National Insu. Co. Ltd. & Anr., Special Leave to Appeal (Civil) No.  37183 of 2013 decided on 17.12.2013, confirmed the order of the Hon’ble National Commission and refused to condone the delay of even 13 days. 
14.           Similarly in Pundlik Jalam Patil Vs. Executive Engineer, Jalgaon Medium Project, (2008) 17 SCC 448, it was observed by Hon’ble Apex Court that the court cannot enquire into belated and stale claims on the ground of equity. Delay defeats equity. The Courts help those who are vigilant and “do not slumber over their rights”.
15.           In “Anil Kumar Sharma Vs. United India Insurance Co. Ltd. & Ors., IV (2015) CPJ 453 (NC), the Hon’ble National  Commission had observed as follows –

 

“12……… . we are not satisfied with the cause shown to justify the delay of 590/601 days. Day to day delay has not been explained. Hon’ble Supreme Court in a recent judgment of “Anshul Aggarwal Vs. New Okhla Industrial Development Authority, IV (2011) CPJ 63 (SC)” has held that – “while deciding the application filed for condonation of delay,  the Court has to keep in mind that 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 the  appeals and revisions,  which are highly belated are entertained.”

 

16.           In, “Lingeswaran Etc. Versus Thirunagalingam in Special Leave to Appeal (C ) Nos. 2054- 2055 of 2022, decided on 25.02.2022”, similarly, the Hon’ble Apex Court had observed inter alia –

 

“5. We are in complete agreement with the view taken by the High Court. Once  it was found even by the learned trial Court that delay has not been properly explained and even there are no merits in the application  for condonation of delay, thereafter,  the matter should rest there and the condonation of delay application was required to be dismissed. The approach adopted by the learned trial Court that, even after finding that, in absence of any material evidence it cannot be said that the delay has been explained and that there are no merits in the application, still to  condone the delay would be  giving a premium to a person who fails to explain the delay and who is  guilty of delay and laches.  At this stage, the decision of this Court in the case of PopatBahiruGoverdhane V. Land Acquisition Officer, reported in (2013) 10 SCC 765 is required to be referred to. In the said decision, it is observed and held that the 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. 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.”

 

17.           The Hon'ble National Commission in the matter of Prem Prakash Goel vs. Green Carriers and Contractors (Delhi) Pvt. Ltd. as reported in II (2014) CPJ 22 (NC) held that that the fragile explanation for the condonation of delay does not ring the bell. Day to day explanation not having been furnished the delay cannot be condoned.
18.           In Central Bank of India vs. Ayodha Prasad Awasthi , I (2015) CPJ 712 (NC) also, the Hon'ble National Commission held that specific periods have been prescribed for filing of appeal and revision petitions under the law to ensure that fruits of awards or decree are not unduly delayed to successful litigants. Cogent explanation is to be given in support of each request for condonation of delay. Petitioner failed to explain the delay satisfactorily so as to constitute sufficient cause. Delay was not condoned.
19.           As stated above, in the present case also, the applicants have failed to give any sufficient cause to condone the huge delay of 272 days in filing this appeal and as such, this Commission finds no justification to condone the said delay. The application for condonation of delay in filing this appeal thus stands dismissed with no order as to costs.
20.           Under these circumstances,  if we proceed further on merits of this case, it would be nothing but commission of an illegality on the part of this Commission, in view of principle of law laid down by the Hon’ble Supreme Court in the case of State Bank Of India vs M/s. B.S. Agricultural Industries (I), Civil Appeal No. 2067 of 2002, decided 20 March, 2009,    wherein it was held once the case is barred by time and yet, the consumer commission decides it on merit, it would be committing an illegality and, the aggrieved party would be entitled to have such order set aside.
21.           Resultantly, this appeal stands dismissed being barred by limitation.
22.           Certified copies of this order be sent to the parties, free of charge, forthwith.
23.           The  file be consigned to Record Room, after completion

Pronounced

24. Because it has been held above
25. that this complaint is barred by limitation, as such, in our considered opinion, even then if
26. we proceed further on merits of this case, it would be nothing but commission of an
27. illegality on the part of this Commission. Our this view is supported by the ratio of law
28. laid down by the Hon’ble Supreme Court in the case of  State Bank Of India vs M/s.
29. B.S.  Agricultural     Industries  (I   ),     CIVIL   APPEAL   NO.  2067   of  2002,     decided  20  
30. March, 2009   ,      wherein it was held as under:-          
31. “………If the complaint is barred by time and yet, the consumer forum
32. decides   the   complaint   on   merits,   the   forum   would   be   committing   an
33. illegality and, therefore, the aggrieved party would be entitled to have such
34. order set aside……”
35. Because it has been held above
36. that this complaint is barred by limitation, as such, in our considered opinion, even then if
37. we proceed further on merits of this case, it would be nothing but commission of an
38. illegality on the part of this Commission. Our this view is supported by the ratio of law
39. laid down by the Hon’ble Supreme Court in the case of  State Bank Of India vs M/s.
40. B.S.  Agricultural     Industries  (I   ),     CIVIL   APPEAL   NO.  2067   of  2002,     decided  20  
41. March, 2009   ,      wherein it was held as under:-          
42. “………If the complaint is barred by time and yet, the consumer forum
43. decides   the   complaint   on   merits,   the   forum   would   be   committing   an
44. illegality and, therefore, the aggrieved party would be entitled to have such
45. order set aside……”
46. Because it has been held above
47. that this complaint is barred by limitation, as such, in our considered opinion, even then if
48. we proceed further on merits of this case, it would be nothing but commission of an
49. illegality on the part of this Commission. Our this view is supported by the ratio of law
50. laid down by the Hon’ble Supreme Court in the case of  State Bank Of India vs M/s.
51. B.S.  Agricultural     Industries  (I   ),     CIVIL   APPEAL   NO.  2067   of  2002,     decided  20  
52. March, 2009   ,      wherein it was held as under:-          
53. “………If the complaint is barred by time and yet, the consumer forum
54. decides   the   complaint   on   merits,   the   forum   would   be   committing   an
55. illegality and, therefore, the aggrieved party would be entitled to have such
56. order set aside……”
57. Because it has been held above
58. that this complaint is barred by limitation, as such, in our considered opinion, even then if
59. we proceed further on merits of this case, it would be nothing but commission of an
60. illegality on the part of this Commission. Our this view is supported by the ratio of law
61. laid down by the Hon’ble Supreme Court in the case of  State Bank Of India vs M/s.
62. B.S.  Agricultural     Industries  (I   ),     CIVIL   APPEAL   NO.  2067   of  2002,     decided  20  
63. March, 2009   ,      wherein it was held as under:-          
64. “………If the complaint is barred by time and yet, the consumer forum
65. decides   the   complaint   on   merits,   the   forum   would   be   committing   an
66. illegality and, therefore, the aggrieved party would be entitled to have such
67. order set aside……”
68. Because it has been held above
69. that this complaint is barred by limitation, as such, in our considered opinion, even then if
70. we proceed further on merits of this case, it would be nothing but commission of an
71. illegality on the part of this Commission. Our this view is supported by the ratio of law
72. laid down by the Hon’ble Supreme Court in the case of  State Bank Of India vs M/s.
73. B.S.  Agricultural     Industries  (I   ),     CIVIL   APPEAL   NO.  2067   of  2002,     decided  20  
74. March, 2009   ,      wherein it was held as under:-          
75. “………If the complaint is barred by time and yet, the consumer forum
76. decides   the   complaint   on   merits,   the   forum   would   be   committing   an
77. illegality and, therefore, the aggrieved party would be entitled to have such
78. order set aside……”
79. Because it has been held above
80. that this complaint is barred by limitation, as such, in our considered opinion, even then if
81. we proceed further on merits of this case, it would be nothing but commission of an
82. illegality on the part of this Commission. Our this view is supported by the ratio of law
83. laid down by the Hon’ble Supreme Court in the case of  State Bank Of India vs M/s.
84. B.S.  Agricultural     Industries  (I   ),     CIVIL   APPEAL   NO.  2067   of  2002,     decided  20  
85. March, 2009   ,      wherein it was held as under:-          
86. “………If the complaint is barred by time and yet, the consumer forum
87. decides   the   complaint   on   merits,   the   forum   would   be   committing   an
88. illegality and, therefore, the aggrieved party would be entitled to have such
89. order set aside……”
90. Because it has been held above
91. that this complaint is barred by limitation, as such, in our considered opinion, even then if
92. we proceed further on merits of this case, it would be nothing but commission of an
93. illegality on the part of this Commission. Our this view is supported by the ratio of law
94. laid down by the Hon’ble Supreme Court in the case of  State Bank Of India vs M/s.
95. B.S.  Agricultural     Industries  (I   ),     CIVIL   APPEAL   NO.  2067   of  2002,     decided  20  
96. March, 2009   ,      wherein it was held as under:-          
97. “………If the complaint is barred by time and yet, the consumer forum
98. decides   the   complaint   on   merits,   the   forum   would   be   committing   an
99. illegality and, therefore, the aggrieved party would be entitled to have such
100. order set aside……Consequently, all the pending applications stand disposed of accordingly. Certified Copies of this order be sent to the parties, free of charge.

The file be consigned to Record Room, after completion.

05.10.2023

 

Sd/-

 [JUSTICE RAJ SHEKHAR ATTRI]

PRESIDENT

 

Sd/-

(RAJESH K. ARYA)

MEMBER

Rg.