AVM J. RAJENDRA, AVSM, VSM (RETD.), MEMBER

1.      This is a case of alleged deficiency in service, negligence and unfair trade practice at the hands of the Opposite Parties, as Opposite Parties failed to hand over the possession of Flat No. PJ/404/A-2, despite the fact that the Complainants paid full consideration of Rs.49,50,000/-. The learned State Consumer Disputes Redressal Commission, Uttar Pradesh partly allowed the Complaint. The impugned Order dated 28.09.2018 and modified on 05.07.2019 is reproduced as below: -

“The complaint is partially allowed. The opposite parties are directed to hand over the possession and execute the registry of the allotted flat to the complainant within a period of three months from the date of this order. The opposite parties will pay 5% rebate on the 75% amount of the estimated cost of flat to the complainants and 9% per annum interest on his deposited amount from the date 2 years after the date of last deposit i.e. from dated 1.11.2014 to the date of actual possession and Rs.10,000/- as cost towards legal expenses.”

2.      Being aggrieved, the Opposite Parties filed the instant Appeal and with IA/6232/2020, an Application for condonation for delay of 709 days, as per the report of the Registry, in filing the instant First Appeal. 

3.      The Hon’ble Supreme Court in Suo Motu Writ Petition (Civil) No. 3 of 2020 in re: Cognizance for Extension of Limitation has suspended the period of limitation for filing petitions/applications/ suits/appeals/all other quasi proceedings before any Courts/ Tribunals or any Authority due to Covid-19 Pandemic with effect from 15.03.2020 till 28.02.2022. 

4.      In the present Appeal, the learned State Commission passed the Impugned Order on 28.09.2018. The limitation for filing of the First Appeal before this Commission is 30 days. However, the calculation for filing the First Appeal would be counted from the date of receipt of the Impugned Order by the Appellant i.e. 28.09.2018. Thus, the limitation for filing the First Appeal actually expired on 27.10.2018 itself, which was well before the onset of the Covid-19 Pandemic. It is pertinent to mention here that the Order dated 28.09.2018 has been modified on 05.07.2019 by the learned State Commission only to the extent of adding the words “per annum” in the fourth line of the operative para. However, the present Appeal has been filed on 06.10.2020. After excluding the suspended period of limitation by the Hon’ble Supreme Court, there is delay in filing the present Appeal is 28.10.2018 to 14.03.2020 i.e. 504 days. 

5.      Learned Counsel for the Appellants has taken the grounds in the Application seeking condonation of delay are as follows:

(a)       The Appeal is against the Impugned Order dated 28.09.2018 passed by the learned State Commission, UP in Complaint Case No. CC/366/2016 as it was passed without appreciating the true and correct facts of the present matter.

(b)       There is a delay of 504 days in preferring the Appeal and the delay is neither intentional nor deliberate, but it is on account of facts stated below.

(c)       The impugned order was passed on 28.09.2018 allowing the complaint with the following directions:

"The complaint is partially allowed. The opposite parties are directed to hand over the possession and execute the registry of the allotted flat to the complainant within a period of three months from the date of this order. The opposite parties will pay the 5% rebate on the 75% amount of the estimated cost of fiat to the complainants and 9% interest on his deposited amount from the date 2 years after the date of last deposit i.e. from dated 1.11.2014 to the date of actual possession and Rs 10,000/- as cost towards legal expenses."

(d)       Perusal of the file at Law Dept showed that the order was not communicated by their Counsel and it came within their knowledge, when it was provided by the Complainant in January 2020.

(e)       Thereafter, necessary permission was sought to file the present Appeal. However, due to sudden lockdown because of Covid pandemic further action could not be immediately taken. Vide letter dated 22.05.2020, the Law Dept sent the requisite permission to the Property Dept for filing the appeal. Due to Covid pandemic, the Appellant’s office was with intermittent strength. As some papers were received in July 2020, the learned Counsel followed up the communications and received comments on delay and scheme brochure on 15.09.2020.    As the impugned order was not communicated by the Counsel for the Appellant before the State Commission, explanation was sought from the counsel vide letter dated 01.10.2020.

(f)        More comments on delay were received on 1.10.2020. Requisite affidavits along with petition were sent to Appellants on 01.10.2020. Thereafter, a duly notarized affidavit along with requisite DD were received on 05.10.2020.

6.      In view of the facts and circumstances, if the delay is not condoned, irreparable loss shall be caused to the Appellant. Hence the Appellants pleaded that the delay be condoned, to provide substantial justice to the Appellants.

7.      The learned Counsel for the Respondents/Complainants, in its para-wise Reply to the Application seeking condonation of delay has taken the objections which are given below:

(a)       The contents of the Condonation of Delay Application are misleading and ambiguous. The Appeal has been filed with 738 days delay only to harass and harm the Complainants/ Respondents. The delay was intentional and deliberate. The Appellants, instead of explaining the delay, are merely trying to shift its burden of its failures on the Advocate.

(b)       The judgment dated 28.09.2018 was passed by the learned State Commission in the presence of counsels for both the parties. Therefore, the judgment was well within the knowledge of the Appellant. Thus, the possession of the flat in question was handed over to the respondents on 30.6.2019. The Respondent served the amended copy of the judgment on 17.12.2019 through registered post, email and personally to the Vice Chairman of the Authority who after perusal of the same assured that rest of the order would be complied with soon. But the Appellant further litigated the matter after more than 2 years from the date of impugned order to harass the Complainant.

(c)       The limitation to file an Appeal is 30 days as prescribed in the Consumer Protection Act. Even if it is presumed for the sake of argument, though not admitted, that the Appellant came to know about the order on 17.12.2019, the limitation for filing Appeal expired on 16.01.2020, but in the instant case only Vakalatnama was issued for filing the Appeal on 21.03.2020 that too without the permission of the competent authority for filing the Appeal. In any case, without permission no Appeal could be filed and the Vakalatnma issued was notional. The lockdown started much after the expiry of limitation period. Therefore, the Appellant cannot take the excuse of pandemic or lockdown. The Appellants have no regard to the law and they work at their own whims. The Appellant's attitude is that they can approach the Court irrespective of the limitation and they will be heard.

(d)       It is settled law that departmental and official procedural delays by itself do not constitute "sufficient ground”. The instant Appeal is filed with delay of 738 days and the Appellant miserably failed to explain the delay in any reasonable manner so as to consider the case.

(e)       The reasons cited in no way can be said to be satisfactory and the undue delay has not been explained properly. The appeal is hopelessly barred by time and is liable to be dismissed. The learned Counsel for the Respondent cited Hon'ble Supreme Court in the case of Basawaraj & Another Versus The Special Land Acquisition Officer, (2013) 14 SCC 811 that where a case has been presented in the court beyond limitation, the applicant has to explain the court as to what was the "sufficient cause" which means an adequate and enough reason which prevented him to approach the court within limitation. In case a party is found to be negligent, or for want of bonafide on his part in the facts and circumstances of the case or found to have not acted diligently or remained inactive, there cannot be a justified ground to condone the delay. No court could be justified in condoning such an inordinate delay by imposing any condition whatsoever. The application is to be decided only within the parameters laid down by this court in regard to the condonation of delay. In case there was no sufficient cause to prevent a litigant to approach the court on time condoning the delay without any justification, putting any condition whatsoever, amounts to passing an order in violation of the statutory provisions and it tantamount to showing utter disregard to the legislature. Also, the Hon'ble Supreme Court has laid down in Anshul Aggarwal v. New Okhla Industrial Development Authority, IV (2011) CPJ 63 (SC), that:

"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 Foras."

8.      The learned counsel for the Appellant asserted that the Appellant was unable to file the current case within the prescribed period of limitation set forth in the Consumer Protection Act, 2019, due to the impact of the Covid-19 pandemic. He argued that the Hon’ble Supreme Court had extended the limitation period during the pandemic. As such, the Appeal was filed in accordance with the guidelines of the Hon’ble Supreme Court regarding limitation. The Counsel for the Appellants before the State Commission did not communicate the order and the Appellants came to know when it was provided by the Complainant in January, 2020. It took time for taking necessary inherent approvals from the Appellant’s office and he also wrote multiple communications seeking details and to take action against those responsible for negligence and delay.

9.      The learned counsel for the Respondents emphatically reiterated the specific contentions in the reply filed against the Application seeking Condonation of Delay. He contested that the learned counsel for the Appellants was in fact present at the time of passing the impugned order dated 28.09.2018 by the learned State Commission and a copy was received on the same day i.e. 28.09.2018. He asserted that in the given circumstances the delay is inordinate and the law as well as established catena of precedents by Hon’ble Supreme Court as well as this Commission do not permit condonation of such extremely long delay on such flimsy grounds and bypassing the liability to a counsel who defended the undefendable.

10.    We have carefully examined the application for Condonation of Delay filed by the Appellant, reply thereto by the Complainant/ Respondent, associated documents and thoughtfully heard the learned Counsels for the both the parties.

11.    Notwithstanding the contentions of the learned Counsel for the Appellant, the impugned order placed on record and the acknowledgement thereat by the Appellants themselves reveal that at the time of passing the impugned order by the learned State Commission, the learned Counsel for the Appellant was present. It means that the Appellants were well aware about the passing of the impugned order and the same was obtained by it on 28.09.2018 and the Appeal was filed after such delay as evident from the records and admitted. Faced with this, the learned counsel for the Appellant conceded the delay in filing the Appeal.

12.    The Hon’ble Supreme Court in catena of judgments clarified the expression ‘sufficient cause’ and held that the burden is on the Applicant to show that there was sufficient cause for the delay. A party who has not acted diligently or remained inactive is not entitled for condonation of delay. In R.B. Ramlingam Vs. R.B. Bhavaneshwari, I (2009) CLT 188 (SC), it was held as under:-

"We hold that in each and every case the Court has to examine whether delay in filing the special appeal leave petitions stands properly explained. This is the basic test which needs to be applied. The true guide is whether the petitioner has acted with reasonable diligence in the prosecution of his appeal/petition.”

13.    Condonation of delay is not a matter of right and the Applicant has to set out the case showing sufficient reasons which prevented them to come to the Court/Commission within the stipulated period of limitation. The Hon’ble Supreme Court in Ram Lal and Ors. Vs. Rewa Coalfields Limited, AIR 1962 Supreme Court 361, has held as under:

“It is, however, necessary to emphasise that even after sufficient cause has been shown a party is not entitled to the condonation of delay in question as a matter of right. The proof of a sufficient cause is a condition precedent for the exercise of the discretionary jurisdiction vested in the Court by Section 5. If sufficient cause is not proved nothing further has to be done; the application for condoning delay has to be dismissed on that ground alone. If sufficient cause is shown then the Court has to enquire whether in its discretion it should condone the delay. This aspect of the matter naturally introduces the consideration of all relevant facts and it is at this stage that diligence of the party or its bona fides may fall for consideration; but the scope of the enquiry while exercising the discretionary power after sufficient cause is shown would naturally be limited only to such facts as the Court may regard as relevant.”

14.    Also, in Anshul Aggarwal Vs. New Okhla Industrial Development Authority, (2011) 14 SCC 578, the Hon’ble Supreme Court sensitized the Commissions to keep in mind while dealing with such Applications the special nature of the Consumer Protection Act. The Hon’ble Supreme Court has held as under:

“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 foras."

15.   It has been held by the Hon'ble Supreme Court in the case of Basawaraj & Another Versus The Special Land Acquisition Officer, (2013) 14 SCC 811 has held that ‘where a case has been presented in the court beyond limitation, the applicant has to explain the court as to what was the “sufficient cause” which means an adequate and enough reason which prevented him to approach the court within limitation. In case a party is found to be negligent, or for want of bonafide on his part in the facts and circumstances of the case, or found to have not acted diligently or remained inactive, there cannot be a justified ground to condone the delay. No court could be justified in condoning such an inordinate delay by imposing any condition whatsoever. The application is to be decided only within the parameters laid down by this court in regard to the condonation of delay. In case there was no sufficient cause to prevent a litigant to approach the court on time condoning the delay without any justification, putting any condition whatsoever, amounts to passing an order in violation of the statutory provisions and it tantamounts to showing utter disregard to the legislature.’

16.    If there is delay the question of deciding the matter on merit will not arise. In this context, we would like to rely upon the recent decision of Hon’ble Supreme Court in State of Uttar Pradesh & Ors. vs. M/s Satish Chand Shivhare & Brothers, SLP (Civil) No. 5301 OF 2022, it was held as below:     

21. The questions of law purported to be raised in this Special Leave Petition are misconceived. The right of appeal is a statutory right, subject to the laws of limitation. The law of limitation is valid substantive law, which extinguishes the right to sue, and/or the right to appeal. Once an appeal is found to be barred by limitation, there can be no question of any obligation of the Court to consider the merits of the case of the Appellant.

22. When consideration of an appeal on merits is pitted against the rejection of a meritorious claim on the technical ground of the bar of limitation, the Courts lean towards consideration on merits by adopting a liberal approach towards ‘sufficient cause’ to condone the delay. The Court considering an application under Section 5 of the Limitation Act may also look into the prima facie merits of an appeal. However, in this case, the Petitioners failed to make out a strong prima facie case for appeal. Furthermore, a liberal approach, may adopted when some plausible cause for delay is shown. Liberal approach does not mean that an appeal should be allowed even if the cause for delay shown is flimsy. The Court should not waive limitation for all practical purposes by condoning inordinate delay caused by a tardy lackadaisical negligent manner of functioning.

17.     Based on the discussion above, we do not find sufficient ground to condone such protracted delay in filing the Appeal. The Application seeking Condonation of Delay vide I.A. No.6232/2020 is accordingly dismissed. Consequently, the instant First Appeal being No.708/2020 is also dismissed being barred by limitation.

18.    There shall be no order as to costs. All pending Applications, if any, are disposed of accordingly.

19.    The Registry is directed to refund the deposit, if any, to the Appellant after due compliance of the order passed by the learned State Commission.