RESERVED

State Consumer Disputes Redressal Commission

U.P., Lucknow.

Appeal No.733 of 2014

Sh. Pramod Kumar Jain,

B- 193, First Floor, Vivek Vihar,

Phase 1, Delhi- 110094                            …….. Appellant.

Versus

1- M/s Country Club India Ltd.,

    25, UG Floor, Community Center,

    East of Kailash, Opp. Sapna Cinema,

    New Delhi- 110065

2- Country Vacations International Holiday Club,

    C-55, First Floor, Preet Vihar, Vikas Marg,

    Delhi- 110092                                       .…Respondents.

Present:-

1- Hon’ble Sri A.K. Bose, Presiding Member.

2- Hon’ble Sri R.C. Chaudhary, Member.

Sri Rajesh Kumar, Ld. counsel for the appellant.

None for the respondents.

Date     19.11.2014

JUDGMENT

Sri A.K. Bose,  Member- Aggrieved by the judgment and order dated 22.11.2013, passed by the  Ld. DCDRF, Ghaziabad in complaint case no.209 of 2012, the appellant Pramod Kumar Jain r/o B- 193, First Floor, Vivek Vihar, Phase -1, Delhi has preferred the instant appeal under Section 15 of the Consumer Protection Act, 1986 (Act No.68 of 1986) on the ground that the impugned judgment and order passed by the Forum below is arbitrary, perverse and is bad in the eye of law. The Forum below failed to appreciate the facts, circumstances and evidence on record and passed the impugned judgment and order against all

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settled principles of law, justice and fair play. It has, therefore, been prayed that the appeal be allowed and impugned judgment and order be set aside and he be awarded the relief claimed by him in the complaint otherwise, he will suffer irreparable loss.

In brief, the factual matrix of the case is that the appellant obtained membership of Country Club India Ltd. after a telephonic conversation with the representative of the respondents, followed by a meeting held on 9.3.2008 at Pacific Mall, Kaushambi, Ghhaziabad. The respondents offered the appellant/complainant a plot at Vedic Spa, Banglore apart from membership of various Hotels and Clubs. Accordingly, the appellant paid membership fees and was consequently, issued Membership Card. It has been alleged that the respondents failed to provide free or paid Holiday Package to the appellant, as promised. Consequently, a meeting between the parties took place on 8.1.2010 at the office of the respondents at Delhi where the respondents gave an assurance to return the entire money alongwith interest. On their failure to do so, a complaint case no.125 of 2011: Pramod Kumar Jain vs. Country Club India Ltd. & another was filed before the Consumer Disputes Redressal Forum, North East, Govt. of NCT, Delhi in which the Forum held that it had no territorial jurisdiction to entertain the complaint as no part of cause of action had arisen within the territory of NCT of Delhi and, therefore, the complaint was returned for presentation before the Court or Forum having territorial jurisdiction. Thereafter, the complaint case bearing no.209

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of 2012 was filed before the Ld. DCDRF-I, Ghaziabad on 16.5.2012 which was dismissed on 22.11.2013 on the following 3 (three) grounds:  

(i) the same was barred by the period of limitation as provided under Section 24(A) of the Act 68 of 1986,

(ii) the Forum had no territorial jurisdiction to deal with the matter and,

(iii) that there was no deficiency in service on the part of the OPs as the complainant failed to comply with the terms and conditions of the agreement.

It may be observed here that the instant appeal has been filed before this Commission after the period of limitation as provided under Section 15 of the Act and, therefore, we have also heard the Ld. Counsel for the appellant on the point of the limitation as well.

Admittedly, the impugned judgment was passed on 22.11.2013 and certified copy of the judgment was provided to the appellant on 5.2.2014 and, therefore, the appellant was required to file the appeal by 5.3.2014 whereas, the instant appeal was filed on 10.4.2014 and, therefore, it is barred by limitation by 35 days from the date of supply of certified copy of judgment. An application for condonation of delay is on record in which it has been contended that the appellant could not file the appeal in time due to illness of his Ld. Counsel. A Medical Certificate, issued by a Private Practioner having BAMS qualification only has been annexed in which it has been mentioned that he was under his treatment form 4.1.2014 to 23.3.2014 for abdominal pain. The patient was,

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however, not even advised bed rest by him. It has further been submitted that certified copy of the impugned judgment and order dated 22.11.2013 was not provided to him by post and, therefore, it has been prayed that the delay in filing the appeal be condoned.

We have given due consideration on the aforesaid submissions. Admittedly, certified copy of the judgment was received by the appellant on 5.2.2014, therefore, we calculated the period of delay from that date and, thus, he was required to file the appeal by 5.3.2014. However, the appeal was filed on 10.4.2014. The Ld. Counsel was not under any treatment on or immediately before that date. Under the given circumstances, it is required to be seen whether this delay can be condoned or not on the basis of the aforesaid medical certificate. Section 15 of the Consumer Protection Act, 1986 provides that any person aggrieved by an order made by the District Forum may prefer an appeal against such order to the State Commission within a period of 30 days from the date of the order, in such form an manner as may be prescribed; provided that the State Commission may entertained an appeal after expiry of the said period of 30 days, if it is satisfied that there was sufficient cause for not filing it within that period. In the instant matter, the delay is of 106 days from the date of the order, 65 days from the date of providing copy of the order and 35 days from the date of expiry of the period of appeal and, therefore, we are required to see whether there is any sufficient cause for not filing the appeal within the statutory period. In

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Mahindra & Mahindra Financial Services Ltd. Vs. Naresh Singh, I(2013) CPJ 407 (NC), where the delay was of 71 days only, it was held by the Hon'ble National Commission that "condonation cannot be a matter to routine and the petitioner is required to explain delay for each and every date after expiry of the period of limitation". Similarly, in U.P. Avas Evam Vikas Parishad Vs. Brij Kishore Pandy, IV (2009) CPJ 217 (NC), the delay of 111 days was not condoned as day-to-day delay was not explained. In Delhi Development Authority Vs. V.P. Narayanan, IV (2011) CPJ 155 (NC), where the delay was of only 84 days, it was held that "this is enough to demonstrate that there was no reason for this delay, much less a sufficient cause to warrant its condonation.  In Anshul Agarwal Vs. NOIDA, IV(2011) CPJ 63 (SC), it has been observed by the Hon'ble Apex Court at para 7 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 petition filed against the orders of the Consumer Fora."

It may be observed here that even after a party cites sufficient cause for not filing the appeal beyond the period of limitation, it cannot claim condonation as a matter of right. The proof of sufficient cause is a discretionary

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jurisdiction, vested in the Fora under Section 15 of the Act. If "sufficient cause" is not shown, nothing further is required to be done; and the application for condonation has to be dismissed on that ground alone. If, however, a sufficient cause is shown, then Forum has to enquire whether, in its discretion, it should condone the delay or not? 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-fide may fall for consideration but the scope of enquiry, while exercising the discretionary power, after sufficient cause is shown, would naturally be limited only to such facts as the Forum may record as relevant. We have given due consideration on the application for condonation of delay. The medical certificate, even if it is taken to be true, only shows that the Ld. Counsel for the appellant was under treatment for abdominal pain from 4.1.2014 to 23.3.2014 only for which he was not even advised bed rest. The appellant has not filed any affidavit of the Medical Practioner nor has adduced any evidence  regarding the line of treatment, final diagnosis or the medicines consumed by him for suffering abdominal pain for such a long duration. The Ld. Counsel was not under any treatment on or immediately before 10.4.2014 and, therefore, we are not inclined to condone the aforesaid delay on the basis of the medical certificate, issued by a Private Practioner. In view of the aforesaid discussions and rulings laid down by the Hon'ble Appellate Courts, we are of the considered view that the appellant has miserably failed to show any cogent reason

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or submit sufficient cause for condonation of the delay. He has not given day-to-day explanation of the delay either. The object of expeditious adjudication of the consumer disputes will certainly get frustrated if such belated appeals are entertained. The appeal is liable to be dismissed on this ground alone.

Besides this, the Forum below, on the basis of facts, circumstances and evidence available on record, concluded that the complaint was barred by the period of limitation as provided under Section 24(A) of the Act 68 of 1986. We have given due consideration on this point and in view of the ruling laid down by the Hon'ble Apex Court in State Bank of India vs. B.S. Agricultural Industries (I), II(2009) CPJ 29 (SC) at para 16, we are of the considered opinion that the Forum below rightly dismissed the complaint on the ground of limitation. Admittedly, the cause of action finally arose on 8.1.2010 whereas, the complaint was filed in the month of May, 2012 and  no prayer was made by the complainant/appellant to condone the delay either before the Forum below or before this Commission. Therefore, the complaint was barred by limitation and the Forum below rightly dismissed the same on the ground of limitation.

It may be observed here that the Forum below also dismissed the complaint on ground of territorial jurisdiction to deal with the matter. The complaint was also dismissed by the District Forum, North East, Delhi on the same ground. In this regard, it may be observed that

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the OPs reside in New Delhi and, therefore, the District Forum, North East, Delhi had territorial jurisdiction to deal with the matter in view of provisions contained under Section 11(2)(A) and 11(2)(B) of the Act 68 of 1986 but taking recourse to the provisions contained under Section 11(2)(C) of the Act only, the Forum below held that it had no jurisdiction to deal with the matter and accordingly, returned the complaint for presentation before court or forum having jurisdiction. This part of the order was not as per the provisions of law as contained under Section 11 of the Act 68 of 1986. From perusal of the judgment dated 19.12.2011 of the Ld. DCDRF, Delhi, it is evident that the representation of the appellant was received by the Country Vacations at S-7. IInd Floor, Pacific Mall, Kaushambi, Ghaziabad in which the respondents undertook to refund the money on or by 5.2.2010. It further shows that all meetings and  certain other transactions also took place at Pacific Mall, Kaushambi, Ghaziabad and the respondents finally refused to refund of money at Kaushambi, Ghaziabad and, therefore, cause of action also arose at Ghaziabad. Therefore, it will not be appropriate to hold that the Ld. DCDRF, Ghaziabad had no territorial jurisdiction to deal with the matter in view of the provisions contained under Section 11(2)(c) of the Act 68 of 1986. An agreement between the parties to oust the territorial jurisdiction nether can overside the express provisions provided under the Act nor is tenable under the law.

From perusal of the judgment, it transpires that the complainant/appellant admittedly did not comply with

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certain terms and conditions of the agreement entered into between the parties and, therefore, the Forum below also concluded that there was no deficiency in service on the part of the respondents. No evidence has been adduced before us to prove otherwise and, therefore, we are not inclined to interfere in the finding. Consequently, we are of the considered view that the judgment and order passed by the Forum below dated 22.11.2013 is legally justified and, we do not find any cogent reason to interfere in it. No irreparable loss will be caused to the appellant nor will there be any failure of justice if the appeal, being time barred, is dismissed at the admission stage.

During the course of hearing, the Ld. Counsel for the appellant submitted that the respondents are engaged in the act of cheating and unfair trade practice and are financially squeezing many people by luring them of Vedic Spa and membership of reputed Hotels and Clubs and, therefore, criminal cases be ordered to registered against them. We have given due consideration on this point.  Whether to initiate criminal proceedings against the respondents or not is the sole discretion of the appellant and we refrain ourselves from expressing any opinion in this regard.

          Consequently, the appeal is dismissed at the admission stage as barred by limitation. No order as to costs. Certified copy of the judgment be provided to the parties as per rules.     

         (A.K. Bose)                            (R. C. Chaudhary)   

    Presiding Member                              Member

Jafri

ST G-1 Court No.5