(Delivered on 12/10/2018)
PER SHRI B.A. SHAIKH, HON’BLE PRESIDING MEMBER.
1. Advocate Mr. F.I. Khan is present for the appellant. Adv. Mr. Mushahid Ali is present for the respondent. The appeal is listed today for hearing on delay condonation application filed by the appellant along with appeal memo. The delay shown in the application is of 75 days that occurred in filing of appeal. We have heard aforesaid advocates on the said application and perused the entire record and proceedings of appeal.
2. The learned advocate of the appellant initially made a submission that the appellant has got a very good case on merit and he tried to show certain evidence adduced before the Forum in support of his submission. He further submitted that otherwise also the appellant is a Nationalized bank and public money is involved in the mater and no prejudice will be caused to the respondent if delay of 75 is condoned by this Commission.
3. He explained the delay in brief is an under.
The copy of the impugned order was received on 12/12/2017 by the appellant’s Counsel. The counsel was preoccupied in other matter & hence, he could not scrutinize the judgment. Latter on he supplied the copy of judgment to the appellant bank in the first week of January-2018. The bank then forwarded the same to the Circle Office. The Circle Officer asked for entire record for scrutiny. The same was provided by the counsel to the bank. Since, several issues were involved in the matter the bank took some time to verify the genuineness of the complaint once again. However, later on it came to the conclusion that the judgment needs to be challenged by filling appeal before this Commission. Thereafter, in the second week of March 2018 the counsel was informed to prepare the appeal memo. The counsel for the appellant prepared the appeal memo and sent it to the bank. The same was sent by the bank to the legal department who suggested certain changes in it. After incorporating the necessary changes the appeal memo was ready on 23/03/2018. There was holiday on 24/03/2018 and 25/03/2018 and on 26/03/2018 the demand draft required for filing of appeal was prepared and the appeal was filed on 27/03/2018 and thus in that process the delay of 75 days has been occurred.
4. The learned advocate of the appellant therefore submitted that as the delay is satisfactorily explained as above and as public money is involved in the matter, the said delay may be condoned. He relied on the decision of the Hon’ble Supreme Court in the case of Collector, Land Acquisition, Anantnag and another Vs. Mst. Katiji and others, reported in AIR 1987 Supreme Court 1353. The learned advocate of the appellant referred to the observations made in para No. 3 of the said judgment, which is to the following effect:
“i. Ordinarily a litigant does not stand to benefit by lodging an appeal late.
ii. Refusing to condone delay can result in a meritorious matter being thrown out at the very threshold and cause of justice being defeated. As against this when delay is condoned the highest that can happen is that a cause would be decided on merits after hearing the parties.
iii. “Every day’s delay must be explained” does not mean that a pedantic approach should be made. Why not every hour’s delay, every second delay? The doctrine must be applied in a rational common sense pragmatic manner.
iv. When substantial justice and technical considerations are pitted against each other, cause of substantial justice deserves to be preferred for the other side cannot claim to have vested right in injustice being done because of a non-deliberate delay.
v. There is no presumption that delay is occasioned deliberately, or on account of culpable negligence, or on account of mala fides. A litigant does not stand to benefit by resorting to delay. In fact he runs a serious risk.
vi. It must be grasped that judiciary is respected not on account of its power to legalize injustice on technical grounds but because it is capable of removing injustice and is expected to do so.”
5. The learned advocate of the appellant therefore requested that the application made for condonation of delay may be granted. He also to brought to our notice the entire awarded amount.
6. On the other hand, the learned advocate of the respondent opposed the application by filing reply. His submission in brief is as under,
The appellant has got no good case on merit. The circumstances and the facts brought on record which support case of the respondent. The indecisiveness for long time either to file or not file the appeal is no ground for condonation of delay. The delay of 75 days is not satisfactorily explained by the appellant and hence, it cannot be condoned. The appellant had obtained the expert report before the Forum in support of his case and thus the Forum passed well reasoned order in favour of the respondent. Hence, application may be rejected.
7. So far as the question of merit is concerned at this stage while considering the application made for condonation of delay it is suffice to say that the appellant has got no good case on merit since the Forum below has properly considered the evidence of both parties and passed the correct impugned order. Therefore, we find that as the appellant has got no good case on merit, the delay of 75 days on that ground cannot be condoned.
8. Thus delay is of 75 days that occurred in filing of appeal. We find that no such delay of 75 days can occur simply for taking approval from higher authority for the purpose of filing of appeal during those days of working on modern technology. It is not stated in the application as to on which date the copy of impugned order was sent by advocate of the appellant to the appellant and on which date same was forwarded to the Circle Office and on which date the appellant–bank came to the decision for filing of appeal. The first date is mentioned as 12/12/2017 on which the copy of impugned order was received and last date is mentioned as the second week of March 2018 only to prepare the appeal memo. Thus no specific explanation is given for the delay from 12/12/2017 till the second week of March-2018.
9. The aforesaid decision relied on by the learned advocate of the appellant also shows that the treatment similar to any other litigant ought to be accorded to State Government & step motherly treatment to State Government in such matter is not warranted.
10. In the instant case it is seen that the specific period is provided under the Consumer Protection Act,1986 for disposal of appeal filed under the said Act. The Hon’ble Supreme Court in the case of case of Anshul Aggarawal Vs. New Okhla Industrial Development Authority, (2011) 14 SCC 578, has very specifically observed that as Consumer Protection Act specifies the period of limitation, object of expeditious adjudication of consumer disputes would be defeated if belated petitions are entertained. Therefore, the Hon’ble Supreme Court refused to condone the delay in that case.
11. We find that the aforesaid decision in the case of Anshul Agrawal, is squarely applicable to the facts and circumstances of the present case. We also find that the delay of 75 days is not properly explained by the appellant. We are of the considered view that the appellant could have avoided the said delay of 75 days, had the appellant diligent and active in taking the prompt steps for filing of appeal. We also find that the delay of 75 days has been occurred because of gross negligence and inaction on the part of the appellant. Hence, the aforesaid decision in the case of Collector Land Acquisition, Anantnag relied on by the learned advocate of the appellant is not applicable to the facts and circumstances of the present case. Thus, for the foregoing reasons the application made for condonation of delay deserves to be rejected.
ORDER
i. The application made for condonation of delay is rejected.
ii. The appeal is dismissed as time barred.
iii. No order as to cost in appeal.
iv. Copy of order be furnished to both the parties, free of cost.
