Chandigarh

StateCommission

A/60/2019

Air India Airlines Ltd. - Complainant(s)

Versus

Babu Lal Arora - Opp.Party(s)

Adv. Navpreet Singh

03 Apr 2019

ORDER

STATE CONSUMER DISPUTES REDRESSAL COMMISSION,

U.T., CHANDIGARH

 

 

Appeal No.	:	60 of 2019
Date of Institution	:	01.04.2019
Date of Decision	:	03.04.2019

 

Air India Air Lines Ltd. through its Station Manager, SCO No.-162-163-164, Ground Floor, Dakshin Marg, Sector 34-A, Chandigarh.

…..Appellant/Opposite Party No.2.

Versus

 

1.  Babu Lal Arora S/o Neki Ram R/o 1167, Phase-9, SAS Nagar, Mohali.

….Respondent/Complainant.

 

2.  Bajaj Travels Ltd. C/o SCO No.12-13, Sector 9-D, Chandigarh through its Director M. S. Bajaj.  

 

...Respondent/Opposite Party No.1.

 

Appeal under Section 15 of the Consumer Protection Act, 1986 against order dated 07.12.2018 passed by District   Consumer Disputes Redressal Forum-II, U.T. Chandigarh  in Consumer Complaint No.531 of 2017.

 

BEFORE: JUSTICE JASBIR SINGH (RETD.), PRESIDENT.

                MR. RAJESH K. ARYA, MEMBER.

 

Argued by:

 

Sh. Navpreet Singh, Advocate for the applicant/appellant.

 

PER  RAJESH  K.  ARYA, MEMBER

                When filing this appeal against the order dated 07.12.2018 passed by District Consumer Disputes Redressal Forum-II, U.T., Chandigarh (in short ‘the Forum’), in consumer complaint bearing no.531 of 2017, the applicant/appellant has also filed an application to condone delay of 50 days (as per office report 39 days), in filing the same (appeal).

2.             It was stated in the application for condonation of delay that the applicant/appellant received the certified copy of order dated 07.12.2018 on 11.01.2019. It was further stated that thereafter the case file was sent to the applicant/appellant’s Head Office at Delhi for opinion for filing appeal and after collecting the brief from the earlier Counsel, the same was handed over to the present Counsel and in this process, delay of 50 days occurred in filing the appeal. It was further stated that the applicant/appellant lost substantial time in seeking approval of the competent authority for filing the appeal. It was further stated that as per internal procedures, various approvals were taken before filing of an appeal including approval for preparation of the demand draft as well. Reliance was placed on the judgment of Hon’ble Supreme Court of India in the case of Central Bank of India Vs. Jagbir Singh, Civil Appeal No.3645 of 2015 decided on 16.04.2015, wherein it was held that delay of 230 days was justified and the Hon’ble National Commission wrongly dismissed the delay application. Further reliance was placed on New India Insurance Co. Ltd. Vs. Smt. Shanti Misra, AIR 1976 SC 237 Supreme Court, wherein it was held that discretion given by Section 5 should not be defined or crystallized so as to convert a discretionary matter in a rigid rule of law. It was pleaded that, on account of the reasons, referred to above, there was delay, in filing the appeal. It was further stated that delay, in filing the appeal, was neither intentional nor deliberate. Accordingly, the prayer was made to condone the delay aforesaid. Application is accompanied by an affidavit of Station Manager of the applicant/appellant.

3.             We have heard Counsel for the applicant/appellant on and have gone through the entire record of the case very carefully.

4.             In the application aforesaid, it has been pressed to convince this Commission, that after receipt of certified copy of the order passed by the Forum on 11.01.2019, the delay in filing the appeal within the stipulated period occurred because of procedure involved in obtaining the requisite approval from the Head Office and collecting the brief from the earlier Counsel.

5.             It may be stated here that the averments made in the application and also in the affidavit are vague. In the application for condonation of delay, the dates on which the file was sent to the applicant/appellant’s Head Office at Delhi for obtaining opinion for filing the appeal and when the brief from the earlier Counsel was collected and when the aforesaid approval for filing the appeal was accorded and received by the applicant/appellant, have not been mentioned in the application. The affidavit filed by the applicant/appellant in support of the application for condonation of delay is also a short affidavit and not a detailed one. Mere mentioning of procedural delay, which led to the delay in filing the appeal, is not a sufficient ground to condone such a delay. Under these circumstances, the plea taken by the applicant/appellant, to the effect that the delay in filing the appeal occurred due to time consumed in obtaining the approval etc. from the Head Office at Delhi is totally vague and does not carry any weight. It may be stated here that the Hon’ble National Consumer Disputes Redressal Commission, New Delhi recently dismissed a Revision Petition bearing No.1452 of 2018 titled B. K. Malhotra & Anr. Vs. Dewan Housing Finance Corporation & Anr., Revision Petition No.1452 of 2018  on 23.01.2019 on the ground of limitation. There was delay of 66 days in filing the said revision petition. Relevant Paras No.4 to 10 of the said judgment reads thus:-

“4.         The principle relating to condonation of delay is well settled.  The Courts are not required to take a rigid view while dealing with the application for condonation of delay in filing appeals and revision petitions. However, it is the duty of the party who is seeking condonation of delay to set out the facts showing sufficient reasons and causes for the delay.  The expression ‘sufficient cause’ has been defined by the Hon’ble Supreme Court in the case of Basavraj & Anr. Vs. The Spl. Land Acquisition Officer, 2013 AIR SCW 6510 as under:

 “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 nor 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 bonafide 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, 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. (See: Manindra Land and Building Corporation Ltd.  V. Bhootnath Banerjee & Ors, AIR 1964 SC 1336; Lala Matadin V. A.Narayanan, AIR 1970 SC 1953; Parimal V. Veena alias Bharti AIR 2011 SC 1150 L2011 AIR SEW 1233); and Maniben Devraj Shah V. Municipal Corporation of Brihan Mumbai, AIR 2012 SC 1629: (2012 AIR SCW 2412).                           

12.       It is a settle legal proposition that 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.  “A result flawing from a statutory provision is never an evil.  A Court has no power to ignore that provision to relieve what it considers a distress resulting from its operation.”  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.  The legal maxim “dura lex sed lex” which means “the law is hard but it is the law”, stands attracted in  such a situation.  It has consistently been held that, “inconvenience is not” a decisive factor to be considered while interpreting a statute.

15.       The law on the issue can be summarized to the effect 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 case” 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 bona fide 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”.

5.         In the case of Ram Lal and Ors. Vs. Rewa Coalfields Limited, AIR 1962 Supreme Court 361,  the Hon’ble Supreme Court has held that it is not a matter of right to get the delay condoned.  It is discretion of the Court and where no sufficient reasons are shown for condoning the delay, the Courts / Commissions are within their power and jurisdiction to dismiss such applications.  The Hon’ble Supreme Court has held as under:

“It is, however, necessary to emphasize 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 discretionary jurisdiction vested in the Court by S.5. If sufficient cause is not proved nothing further has to be done; the application for condonation 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.”

6.         The test for ascertaining sufficient cause has been laid down by Hon’ble Supreme Court in the case of “R. B. Ramlingam vs. R. B. Bhavaneshwari, I (2009) CLT 188 (SC)  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.”

7.         In another matter, while dealing with matters under the Act, Hon’ble Supreme court in “Anshul Aggarwal vs. New Okhla Industrial Development Authority, (2011) 14 SCC 578,   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 Fora."

8.         The petitioner/complainant, therefore, has to show from the facts on record that he had been acting with due diligence and that they had sufficient reasons for not able to file the file the revision petition within the stipulated period and that there were sufficient reasons which prevented him from approaching the Court within limitation. In the present case,  the only ground shown is that file sent to the counsel got misplaced in the transit.  No date is given as to when the file was sent to the counsel and when the petitioner became aware that file got misplaced. 

9.         It is settled principle of law that petitioner who is making condonation of delay has to explain the delay of each and every date.  In the application, even the number of days for which condonation is sought is not mentioned and a gap is left.  This further reflects on the conduct of the petitioner.

10.       I find no ground to condone the delay.  The application for condonation of delay is accordingly dismissed. As a consequence, Revision Petition is also dismissed as barred by limitation.”

6.             Thus, the Hon’ble National Commission, placing reliance on the law laid down by Hon’ble Supreme Court of India in the cases of Basavraj & Anr.; Ram Lal and Ors.; R. B. Ramlingam; and Anshul Aggarwal (supra), clearly held the view that    the petitioner/ complainant had to show from the facts on record that he had been acting with due diligence and that they had sufficient reasons for not able to file the revision petition within the stipulated period and that there was sufficient reasons which prevented him from approaching the Court within limitation.  

7.             Under above circumstances, we are of the considered opinion that the applicant/appellant did not exhibit due diligence, to file an appeal, within the prescribed period of limitation and bald pleas have been taken in the application aforesaid, which are not sustainable in the eyes of law. No sufficient cause is made out, from the averments, contained in the application, for condoning the delay. The applicant/appellant did not act with due diligence resulting into delay of 50 days in filing the appeal which is beyond the prescribed period of limitation. The cause set up by the applicant/appellant, in the application, for condonation of delay, could not be said to be plausible. The delay, in filing the appeal was, thus, intentional, willful and deliberate. Since, no sufficient cause is constituted, from the averments, contained in the application, the delay aforesaid cannot be condoned. The principle of law, laid down, in the aforesaid case, is fully applicable to the facts of the instant case. As such, condoning the said delay, will  cause further harassment to respondent No.1/complainant, who, even after passing of the order by the Forum in his favour on 07.12.2018 is still awaiting refund of his hard earned money paid to the applicant/appellant. The application is, thus, liable to be dismissed.

8.             Now the question, that arises for consideration, is, as to whether, this Commission can decide the appeal, on merits, especially, when it has come to the conclusion, that there is no sufficient cause, for condonation of delay in filing the same (appeal).  The answer to this question, is in the negative, as provided by the Apex Court in State Bank of India Vs B.S. Agricultural Industries (I) II (2009) CPJ 29 (SC). The question before the Apex Court, was with regard to the condonation of delay, in filing the complaint, in the first instance, beyond the period of two years, as envisaged by Section 24A of the Act. The Apex Court was pleased to observe as under ;

“Section 24A of the Act, 1986 prescribes limitation period for admission of a complaint by the Consumer Fora thus:

“24A. Limitation period—(1) The District Forum, the State Commission or the National Commission shall not admit a complaint unless it is filed within two years from the date on which the cause of action has arisen.

(2) Notwithstanding anything contained in Sub-section (1), a complaint may be entertained after the period specified in Sub-section (1), if the complainants satisfies the District Forum, the State Commission or the National Commission, as the case may be, that he had sufficient cause for not filing the complaint within such period:

Provided that no such complaint shall be entertained unless the National Commission, the State Commission or the District Forum, as the case may be, records its reasons for condoning such delay.”

It would be seen from the aforesaid provision that it is peremptory in nature and requires Consumer Forum to see before it admits the complaint that it has been filed within two years from the date of accrual of cause of action. The Consumer Forum, however, for the reasons to be recorded in writing may condone the delay in filing the complaint if sufficient cause is shown. The expression, ‘shall not admit a complaint’ occurring in Section 24A is sort of a legislative command to the Consumer Forum to examine on its own whether the complaint has been filed within limitation period prescribed thereunder. As a matter of law, the Consumer Forum must deal with the complaint on merits only if the complaint has been filed within two years from the date of accrual of cause of action and if beyond the said period, the sufficient cause has been shown and delay condoned for the reasons recorded in writing. In other words, it is the duty of the Consumer Forum to take notice of Section 24A and give effect to it. If the complaint is barred by time and yet, the Consumer Forum decides the complaint on merits, the Forum would be committing an illegality and, therefore, the aggrieved party would be entitled to have such order set aside.”

 

 

9.             The principle of law, laid down, by the Apex Court in State Bank of India’s case (supra), is equally applicable to the filing of an appeal, under Section 15 of the Act. In case, this Commission, decides the appeal, on merits, after coming to the conclusion, that it is barred by time, it would amount to committing an illegality, in view of the principle of law, laid down in  State Bank of India’s case (supra).

10.           For the reasons recorded above the application for condonation of delay, being devoid of merit, must fail, and the same is dismissed. Consequently, the appeal under Section 15 of the Act, is also dismissed, being barred by time, in limine, with no order as to costs.

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.

03.04.2019.

[JUSTICE JASBIR SINGH (RETD.)]

PRESIDENT

 

 

 

(RAJESH  K. ARYA)

MEMBER

Ad