Chandigarh

StateCommission

A/94/2023

M/S NIKE INDIA PRIVATE LIMITED - Complainant(s)

Versus

AKASH INDER SINGH MANN - Opp.Party(s)

AWASTHI ASSOCIATES AND LAW FIRM

26 May 2023

ORDER

STATE CONSUMER DISPUTES REDRESSAL COMMISSION,

U.T., CHANDIGARH

 

Appeal No.	:	94 of 2023
Date of Institution	:	15.05.2023
Date of Decision	:	26.05.2023

 

 

 

 

 

M/s Nike India Limited, Shop No.19, Ground Floor, Elante Mall, Industrial Area, Chandigarh.

…Appellant/opposite party

V e r s u s

Akash Inder Singh Mann age 17 years (minor) through his father Mr..Ravinder Singh Mann, resident of House No.2175, Sector 22-C, Chandigarh.

….Respondent/complainant

BEFORE:

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

  

Present:- Sh. Abhishek Sidhwani, Advocate for the appellant/opposite party.

                  

 

JUSTICE RAJ SHEKHAR ATTRI, PRESIDENT

 

                   This appeal has been filed beyond the period of limitation  and the same is supported by an application under Section 5 of the  Limitation Act. Record of main consumer complaint bearing no.511 of 2021 as well as execution application bearing no.88 of 2022 and miscellaneous application bearing no.97 of 2022 was requisitioned and received by this Commission from the District Commission.

2.           We have heard the counsel for the applicant at the preliminary stage and scanned the record of the Learned Lower Commission.
3.           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:

•  

4.           The terms 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.
5.           A bare perusal of record transpires that service of summons through registered post was sent to the applicant- M/s Nike India Private Limited on its given address, in the main consumer complaint for 10.03.2022 but the same was received back with the remarks “Refused”. The District Commission held that it is a valid service and as such the applicant was proceeded against exparte vide order dated 10.03.2022.
6.           Thereafter, the applicant filed review petition by way of moving miscellaneous application bearing no.97 of 2022 in execution application bearing no.88 of 2022 (filed by the respondent/complainant) but later on, on the statement  of counsel for the applicant, it was dismissed as withdrawn, vide order dated 21.10.2022.
7.           The instant appeal alongwith application for condonation of delay aforesaid has been filed on 15.05.2023. As per the applicant, there is a delay of 332 days in filing this appeal.  However, to get condoned the said delay of 332 days, it has been averred by the applicant in para no.3 of its application as under:-

“…… That thereafter, the Appellant filed a review petition against the impugned order, under Section 40 of the Consumer Protection Act, 2019, before the Hon'ble District Commission. The Hon'ble District Commission directed the Appellant to exercise their statutory rights and file an appeal before the Hon'ble State Commission under the provisions of Section 41 of the Consumer Protection Act, 2019. A copy of the Hon'ble District Commission's order dated October 21, 2022 is attached as Exhibit A. Thereafter, the Appellant required time to collate all the necessary documents and check their internal records to determine any other correspondence ensued between the Appellant and the Respondent with respect to the facts of the present case and in order to file the present appeal, so that all the facts relevant to the present dispute are brought to light before the Hon'ble Commission. After collating all the relevant information to file the present appeal and upon procuring a certified copy of the Hon'ble District Commission's said order, the Appellant directed the counsel to file the appeal and thereafter the appeal is prepared and being filed without any further delay and the delay occurred in filing the appeal is due to reasons as mentioned above. Hence, the delay of 332 days is liable to be condoned in the interest of justice, equity and good conscience……..”

 

8.           It may be stated here that the only explanation given in para no.3 extracted above to the effect that it took 332 days to collate all the necessary documents and check internal records to determine any other correspondence ensued between the applicant and the respondent, is not sufficient to condone such a huge delay.  Admittedly, the review petition filed by the applicant before the District Commission against the order impugned, was dismissed as withdrawn on 21.10.2022 on the pretext to file an appeal. Even if counted from 22.10.2022 till 15.05.2023 it comes to more than 6 months of delay in filing this appeal and there is no explanation much less sufficient cause even for this delay in filing this appeal. The Hon’ble Supreme Court repeatedly in number of cases like R.B. Ramlingam v. R.B. Bhavaneshwari, I (2009) CLT 188 (SC)= I (2009) SLT 701=2009 (2) Scale 108; Ram Lal and Others v. Rewa Coalfields Ltd., AIR 1962 Supreme Court 361, Bikram Dass Vs. Financial Commissioner and others AIR 1977 Supreme Court 1221 and Office of the Chief Post Master General & Ors. Vs. Living Media India Ltd. & Anr. 2012 STPL(Web) 132 (SC)  has not condoned the delay for want of sufficient cause. Not only as above, the Hon’ble Supreme Court in Sanjay Sidgonda Patil Vs. Branch Manager, National Insurance Co. Ltd. &Anr., Special Leave to Appeal (Civil) No. 37183 of 2013, decided on 17.12.2013, had refused to condone the delay of even 13 days, for want of sufficient cause. Furthermore, the Hon’ble Supreme Court in  Anshul Aggarwal vs. New Okhla Industrial Development Authority [(2011) 14 SCC 578] has held that while deciding an application for condonation of delay, the Consumer Commissions have to keep in mind that the special period of limitation has been prescribed under the Act for filing appeals and revisions in consumer matters and the object of expeditious adjudication of the consumer disputes will get defeated if highly belated petitions filed against the orders of the consumer foras are entertained.
9.           Under above circumstances, we are of the considered view that no sufficient cause/reason has been made out in the application by the applicant to condone the delay aforesaid in filing this appeal and consequently we dismiss the application for condonation of delay.  Resultantly, this appeal stands dismissed being barred by limitation.
10.           Consequently, the application bearing no.402 of 2023 (stay) also stands dismissed having been rendered infructuous.
11.           Certified copies of this order be sent to the parties, free of charge.
12.           The  file be consigned to Record Room, after completion

Pronounced

13. Because it has been held above
14. that this complaint is barred by limitation, as such, in our considered opinion, even then if
15. we proceed further on merits of this case, it would be nothing but commission of an
16. illegality on the part of this Commission. Our this view is supported by the ratio of law
17. laid down by the Hon’ble Supreme Court in the case of  State Bank Of India vs M/s.
18. B.S.  Agricultural     Industries  (I   ),     CIVIL   APPEAL   NO.  2067   of  2002,     decided  20  
19. March, 2009   ,      wherein it was held as under:-          
20. “………If the complaint is barred by time and yet, the consumer forum
21. decides   the   complaint   on   merits,   the   forum   would   be   committing   an
22. illegality and, therefore, the aggrieved party would be entitled to have such
23. order set aside……”
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……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.

Pronounced

26.05.2023

Sd/-

[JUSTICE RAJ SHEKHAR ATTRI]

PRESIDENT

 

 

Sd/-

 (RAJESH K. ARYA)

MEMBER

Rg.