KERALA STATE CONSUMER DISPUTES REDRESSAL COMMISSION,

VAZHUTHACAUD, THIRUVANANTHAPURAM

I.A. No. 652/2024 in APPEAL No. 319/2024

ORDER DATED: 16.10.2024

(Against the Order in C.C. 215/2022 of DCDRC, Alappuzha)

PRESENT:

HON’BLE JUSTICE SRI. B. SUDHEENDRA KUMAR            : PRESIDENT

SRI. AJITH KUMAR D.                                                                 : JUDICIAL MEMBER

SRI. RADHAKRISHNAN K.R.                                                     : MEMBER

PETITIONER/APPELLANT:

Arun M.K., S/o M.N. Kumaran, residing at Melathu House, Nellimattam P.O., Ernakulam District.

(By Advs. Rajaprathap S.J. & Kiran P.)

                                                Vs.

RESPONDENT:

Ajayan, S/o Govindan Achari, Valliyathu Thekkathil House, Nooranadu P.O., Palamel Village, Alappuzha.

(By Advs. George Cherian Karippaparambil & S. Reghukumar)

ORDER

HON’BLE JUSTICE SRI. B. SUDHEENDRA KUMAR  : PRESIDENT

This is an application seeking for condoning the delay of 186 days (actual delay 336 days) in filing the appeal. 

2.  It is contended by the petitioner that the notice was not served on the petitioner from the District Commission.  The petitioner came to know about the order of the District Commission only on receipt of the execution notice.  Immediately, he contacted his counsel and filed a copy application to get the documents including the service of summons.  Thereafter, the counsel intimated the petitioner that half of the amount had to be deposited for filing the appeal.  The petitioner could not raise the funds in spite of best efforts.  Therefore, the petitioner could not file the appeal within time.

3.  Objection has been filed by the respondent strongly opposing the application.  It has been contended that even though there is actually a delay of more than one year, the petitioner had shown only 186 days delay.  It has been further contended by the respondent that the expert commissioner appointed by the District Commission visited the site and at that time, the petitioner was present as the expert commissioner had given notice to him. 

4.  Heard both sides and perused the affidavit and counter affidavit.

5.  The learned advocates on both sides have advanced argument supporting their respective contentions.

6.  The object of the law of limitation is to put an end to every legal remedy and to have a fixed period of life for every litigation as it is futile to keep any litigation or dispute pending indefinitely. We may now go through the authorities on the point before proceeding further.

7.  The Hon’ble Apex Court in Anshul Aggarwal v. New Okhla Industrial Development Authority (2011 KHC 5263 :2011 (14) SCC 578) held in paragraph 5 as hereinbelow:-

           “5. 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 fora”.

8.  The Hon’ble Apex Court in Pathapati Subba Reddy (Died) by L.Rs. v. Special Deputy Collector (LA) reported in 2024 KHC 6197 : 2024 INSC 286 : 2024 Live Law (SC) 288, after considering various decisions of the Hon’ble Apex Court,  held that the law of limitation is based upon public policy that there should be an end to litigation by forfeiting the right to remedy rather than the right itself. It was further held in the above decision that a right or the remedy that has not been exercised or availed of for a long time must come to an end or cease to exist after a fixed period of time. The Hon’ble Apex Court further held in Pathapati Subba Reddy (Died) by L.Rs.(Supra) that the courts are empowered to exercise discretion to condone the delay if sufficient cause is explained, but that exercise of power is discretionary in nature and may not be exercised even if sufficient cause is established for various factors such as, where there is inordinate delay, negligence and want of due diligence. The Apex Court also held that the merits of the case are not required to be considered in condoning the delay.  

9.  The National Commission in Liberty Videocon General Insurance Vs. MS. Rathod in First Appeal No. 1189 of 2023 held that where there is inordinate delay, negligence and want of due diligence, the delay condonation petition cannot be permitted.  In the said case, the National Commission dismissed the application seeking for condoning the delay of 102 days in filing the appeal. 

10.  The National Commission in Appeal Execution No. 8 of 2024 held that when the appeal is filed beyond limitation, the applicant has to explain as to what sufficient cause which prevented him from approaching the court within the period of limitation.  The National Commission further observed that adequate and enough reason must be there for condoning the delay.  In the said case, the National Commission dismissed the application for condonation of delay of 39 days in filing the appeal. 

11.  In Kotak Mahindra Bank Ltd. Vs. New India Assurance Co. Ltd., the State Commission dismissed the application, for condonation of delay of 142 days, filed on the ground that the records were misplaced by the junior advocate of the counsel concerned. The National Commission did not interfere with the said order.

              12.  In the light of the above legal position, we have to test whether the delay in filing the appeal is liable to be condoned or not in this case.

13.  Though it was contended that the delay is only for 186 days, the learned counsel for the petitioner has fairly conceded that the delay was calculated on the belief that the certified copy was received only on 28.09.2023 even though the same was actually received on 28.04.2023.  Thus, the total delay will come to more than 336 days, even as per the admission of the learned counsel for the petitioner.  The endorsement on the certified copy would also show that the petitioner received it on 28.04.2023.

14.  The petitioner stated that he did not receive notice from the District Commission, as the notice sent by the District Commission was returned with the endorsement ‘addressee left, new address not known’.  However, the address of the petitioner in the complaint, in the order impugned and in the appeal memorandum is one and the same.  It has been admitted by the learned counsel for the petitioner that the petitioner was also present when the expert commissioner inspected the site.  Therefore, naturally, he was aware of the proceedings of the District Commission.  However, he did not incline to participate in the proceedings before the District Commission.

15.  It is further contended that the petitioner was waiting for raising money for filing the appeal.  Therefore, there occurred an actual delay of 336 days in filing the appeal.   Having gone through the relevant inputs, we are satisfied that the reasons stated by the petitioner are not sufficient to condone the delay of 336 days in filing the appeal.  That apart, the petitioner did not incline to state the exact number of days of delay in the affidavit.  The petitioner also pretended that he was not aware of the proceedings of the District Commission.  From the conduct of the petitioner, we are impelled to infer that the petitioner has not approached this Commission with clean hands.  Having gone through the relevant inputs, in the light of the arguments on both sides, we are of the view that the reasons stated by the petitioner are not sufficient to condone the delay of 186 days (actual delay of 336 days) in filing the appeal. That apart, there was gross negligence and want of due diligence on the part of the petitioner in this case. For the said reasons, we are not inclined to condone the delay.

In the result, this application stands dismissed.

JUSTICE B. SUDHEENDRA KUMAR: PRESIDENT

                                                                  AJITH KUMAR D. : JUDICIAL MEMBER

                                                                        RADHAKRISHNAN K.R.  : MEMBER

jb

KERALA STATE CONSUMER DISPUTES REDRESSAL COMMISSION,

VAZHUTHACAUD, THIRUVANANTHAPURAM

APPEAL No. 319/2024

JUDGMENT DATED: 16.10.2024

(Against the Order in C.C. 215/2022 of DCDRC, Alappuzha)

PRESENT:

HON’BLE JUSTICE SRI. B. SUDHEENDRA KUMAR            : PRESIDENT

SRI. AJITH KUMAR D.                                                                 : JUDICIAL MEMBER

SRI. RADHAKRISHNAN K.R.                                                     : MEMBER

APPELLANT:

Arun M.K., S/o M.N. Kumaran, residing at Melathu House, Nellimattam P.O., Ernakulam District.

(By Advs. Rajaprathap S.J. & Kiran P.)

                                                Vs.

RESPONDENT:

Ajayan, S/o Govindan Achari, Valliyathu Thekkathil House, Nooranadu P.O., Palamel Village, Alappuzha.

 (By Advs. George Cherian Karippaparambil & S. Reghukumar)

JUDGMENT

HON’BLE JUSTICE SRI. B. SUDHEENDRA KUMAR  : PRESIDENT

In view of the dismissal of I.A. No. 652/2024, this appeal stands dismissed as barred by limitation.

The statutory deposit made by the appellant shall be refunded to the respondent, to be adjusted/credited towards the amount ordered by the District Commission, on proper acknowledgement.

JUSTICE B. SUDHEENDRA KUMAR: PRESIDENT

                                                                  AJITH KUMAR D. : JUDICIAL MEMBER

                                                                        RADHAKRISHNAN K.R.  : MEMBER

jb