Delhi

StateCommission

FA/501/2014

CHOLAMANDALAM INVESTMENT & FINANCE CO. LTD. - Complainant(s)

Versus

DINESH KUMAR SHARMA & ANR. - Opp.Party(s)

30 Oct 2019

ORDER

IN THE STATE COMMISSION: DELHI

(Constituted under section 9 of the Consumer Protection Act, 1986)

 

 

Date of Hearing:30.10.2019

                                                                                                              

                                                                   Date of decision:05.11.2019

 

First Appeal No.501/2014

 

IN THE MATTER OF

 

Cholamandalam Investment and

Finance Company Ltd.

Registered office at:-

“Dare House”, No. 2, NSC Bose Road,

•  

 

And having its office at:-

2.  

Opp. Metro Pillar No. 81

Karol Bagh, New Delhi-110005

 

VERSUS

 

Dinesh Kumar Sharma

S/o K.K. Sharma

R/o WZ-233D, FF, Gali No. 4,

Sri Nagar, Delhi

 

Sh. Antriksh Rana,

S/o Sh. S.K. Rana,

H. No. 39D,

BG-1, Shalimar Bagh,

New Delhi

 

Sh. Vishal Soni

 

Sh. Pramod Kumar                                                           ....Respondents

 

HON’BLE  SH. ANIL SRIVASTAVA, MEMBER                            

               

 1.   Whether reporters of local newspaper be allowed to see the judgment?            Yes     

 2.   To be referred to the reporter or not?                                                                   Yes

 

Present:       Sh. Raghav Saket, Counsel for the appellant

                   Sh. A.K. Upadhayay, Counsel for the respondent

 

ANIL SRIVASTAVA, MEMBER

JUDGEMENT

1.             Aggrieved by the orders dated 09.12.2013 passed by the District Consumer Disputes Redressal Forum, North West, in CC-79/2013 in the matter of Dinesh Kumar Sharma vs. M/s Cholamandalam Investment Private Ltd., holding the OPs deficient and directing them, as under;-

 

1. Release the original documents of property no. WZ-233D, Street No. 4, Sri Nagar, Delhi to the complainant forthwith.
2. Pay to the complainant a sum of Rs. 50,000/- as compensation for pain and agony suffered by him.
3. Pay to the complainant a sum of Rs. 5,000/- as cost of litigation.

 

the M/s Cholamandalam Investment and Finance Company Ltd. have preferred an appeal before this Commission, for short appellant under Section 15 of the Consumer Protection Act 1986, the Act, against Dinesh Kumar Sharma and others, hereinafter referred to as respondents, assailing the orders and praying for the relief as under:-

 

1. Set aside the impugned order dated 09.12.2013 passed by the ld. District Consumer Disputes redressal Commission, Shalimar Bagh, Delhi.
2. Remand back the case to the ld. District Forum to decide the same afresh after giving the appellant the opportunity to present its case.
3. Pass any order/direction this Hon’ble State Commission may deem fit and proper in the interest of justice.

 

2.             Facts of the case necessary for the disposal of the appeal are these.
3.             The respondent No. 1 approached the appellant by way of an application seeking financial assistance by way of loan and in response thereto, the appellant on examination of the documents agreed to provide financial facility to the tune of Rs. 14,00,000/-. In furtherance to the approval of the loan, loan agreement and security documents dated 15.04.2009 were executed by the respondent. In order to further secure the repayment of the loan amounts the respondent no. 1 mortgaged the property bearing no. WZ-233D, FF, Gali No. 4, Sri Nagar, Delhi by way of deposit of the title deeds. The respondent no. 1 however failed to adhere to its commitment and defaulted in repaying the loan amounts. Accordingly, relying on clause 26 of the loan agreement dated 15.04.2009, the appellant referred the matter to arbitration and thereafter award dated 22.06.2011 was passed in favour of the appellant directing the respondent no. 1 to repay an amount of Rs. 14,48,909/- together with interest @ 18% w.e.f. 22.06.2011 till realisation in full and cost of Rs. 2,875/- and in case of failure, the appellant was granted liberty to realize the same from the sale of the mortgaged property.
4.             On the other hand according to the respondents/complainant, the loan amount was repaid and consequently they sought for the return of the documents. The documents not having been returned despite the legal notice issued, a complaint was filed before the District Forum. The said complaint, as stated above, was allowed with direction to the appellant/opposite parties to return the original documents and pay to the respondents/complainant compensation of Rs. 50,000/- and litigation cost of Rs. 5,000/-. Since orders passed by the District Forum remained uncomplied with an execution application under Section 25 and 27 of the Consumer Protection Act 1986 was filed by the complainant/respondent.
5.             Consequently an appeal has been filed before this Commission praying for setting aside the order impugned here on the ground that the ld. District Forum failed to appreciate that the respondent no. 1 has not enclosed any document/letter issued by the appellant wherein the factum of satisfaction of debt and/or closure of the same on account full and final payment was mentioned. Secondly, the ld. District Forum failed to appreciate that it had no territorial jurisdiction to entertain and adjudicate upon the complaint of the respondent no. 1. Thirdly the impugned order has been obtained by the respondent no. 1 by suppressing material facts in order to mislead the ld. District Forum. Fourth, the respondent no. 1 has not paid the entire dues pertaining to the loan availed by it from the appellant and execution petition in that respect is pending before the District Courts Rohini, Delhi.  Fifth, the impugned order is against the established principles of law.
6.             An application for the condonation of delay has also been filed stating that the delay in filing the appeal is owing to the fact they had no knowledge of the orders passed by the District Forum and they could gain the knowledge of the order only when an execution application was preferred. The order impugned here was passed on 09.12.2013 but the appeal has been filed on 21.05.2014, which means 173 days after the order was passed but as per the provisions of Section 15 of the Act appeal has to be filed within 30 days.
7.             The respondents were noticed both on the appeal and on the prayer for condonation of delay and in response thereto reply has been filed on the merit of the appeal as also on the application for condonation of delay. I would first consider the application for condonation of delay and the reply received to this effect keeping in view the provision of Section 15 of the Act.
8.             Section 15 of the Act posits as under:-

 

Appeal- 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 thirty 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 thirty days if it is satisfied that there was sufficient cause for not filing it within that period;

[Provided further that no appeal by a person, who is required to pay any amount in terms of an order of the District Forum, shall be entertained by the State Commission unless the appellant has deposited in the prescribed manner fifty percent of that amount or twenty-five thousand rupees, whichever is less.]

 

9.             The words “sufficient cause”, though deserve to receive a liberal interpretation, yet, a just and equitable balance has to be maintained between the right secured by the respondent as a result of expiry of the prescribed period of limitation and the injustice of depriving the appellant of adjudication of his grievances on the merit of his appeal for causes beyond his reasonable control, which means the cause in bona fide and beyond the control of the appellant. Though, no hard and fast line can be drawn as to what affords ‘sufficient causes’ in a given case, yet again as per settled law, any cause which prevents a person from approaching the court within the time is ‘sufficient cause’. In doing so, it is the test of a reasonable man in normal circumstances which has to be applied; Pradeep Kumar vs. Assistant Finance Officer, Delhi Vidhut Board, 2001 (1) CPR-9.
10.             I have read and re-read the  records of the case and I am of the view that t he grounds taken by the Appellant/ complainant for the condonation of delay are just and proper and it is the fit case where the delay ought to be condoned.  
11.             In the matter of Lakshmi Bai and Ors. vs. ICICI Lombard General Insurance  Co. Ltd. & Ors. reported as III (2011) CPJ 507 (NC) Hon’ble National Consumer Disputes Redressal Commission is pleased to hold that remedy under the Act cannot be barred on the ground that the jurisdiction of the District Forum was not invoked within two years from the date the cause of action arose.  The Hon’ble National Consumer Disputes Redressal Commission in that judgement is pleased to observe as under:

 

                        “14.     In the above cases, the remedy under Consumer Protection Act, 1986, cannot be barred on the ground that the jurisdiction of the Consumer For a was not invoked within two years from the date of death/ incapacitation. Any contrary view in the matter, will result in the claimant/ consumer being penalized for the delay caused by the Respondent/ Insurance Company. ”

 

12.             The Hon’ble National Consumer Disputes Redressal Commission in the matter of Haryana Agro Industries Corporation Ltd. vs. Narinder Singh as reported in III (2015) CPJ 181 (NC) was pleased to condone t he delay as the case of the petitioner on merit appeared to be sound.  In yet another matter, in the matter of Krishna Plastic vs. United India Insurance Co. Ltd. as reported IV (2014) CPJ 468 (NC) – the Hon’ble National Consumer Disputes Redressal Commission condoned  the delay, noticing the ailment of the petitioner.  The Hon’ble National Consumer Disputes Redressal Commission in an another matter of Lafarge Aggregates and Converts India Pvt. Ltd. vs. K. C. Bhardwaj reported in IV (2011) CPJ 674 (NC) on perusal of the orders passed by the District Forum is pleased to observe that the orders so passed are erroneous and not in accordance with even the bare principle of natural justice.  In such circumstances State Commission must take some positive view in respect of application filed by the petitioner for condonation of delay.  Delay caused by the petitioner was not so serious and ground cited in petitioner’s application for condonation of delay not so utterly devoid of substance that delay could not have been condoned at all on some appropriate terms because even quick perusal of order of District Forum vis-à-vis pleadings, evidence and document brought on record ought to have led State Commission to serious questions on sustainability of finding and award of District Forum.  Thus the impugned order set aside and t he matter remanded back to District Forum for de novo adjudication of complainant.  In another matter, in the matter of Mahindra Holidays and Resorts India Pvt. Ltd. vs. Vasant Kumar H. Khandelwal as reported in IV (2012) CPJ 445 (NC) the Hon’ble National Consumer Disputes Redressal Commission has observed that if explanation does not smack of mala fides or it is not put forth as part of dilatory strategy, the Court must show utmost consideration to the suitor. 
13.             The Hon’ble Apex Court in the matter of Hemlata Verma vs. ICICI Prudential Life Insurance  Co. Ltd. the Hon’ble Supreme Court of India in Civil Appeal No. 5131/2019 (arising out of SLP (C) no. 14278/2019) is pleased to order on 01.07.2019 that the Consumer For a be liberal in the matter of condonation of delay observing as under:

 

            “7.       Having heard the Ld. Counsel for the Appellant and on perusal of the record of the case, we are inclined to condone the delay in filing the revision petition before the Commission.

 

            8.         In our opinion, keeping view the averments and the grounds alleged in the application for condonation of delay, which we have perused, we are satisfied that it constitutes a sufficient cause within the meaning of Section 5 of the Limitation Act.

 

            9.         We may consider it apposite to observe that the Commission while declining to condone the delay placed reliance on the decision of this Court in Ramlal vs. Rewa Coalfileds Ltd., AIR 1962 SC 361.  However, the later decision of this Court in Collector, Land Acquisition, Anantnag & Anr., vs. Mst. Katiji & Ors. (1987) 2 SCC 107 has held that in matter of condonation of delay, the Court should take liberal view.  In our view, the Commission should have, therefore, taken not of subsequent decision of this Court on the issue of condonation of delay.”

 

14.             Having regard to the facts of the case read with legal position explained I am of the view that it is a fit case for condonation of delay and it is ordered accordingly.
15.             Now I proceed to consider the appeal on merit. Three folded directions have been issued to the appellant, namely, release the original document, to the complainant/respondent loan amount having been repaid, pay to the complainant/respondent compensation of Rs. 50,000/- and litigation cost of Rs. 5,000/-. In this connection, proceedings recorded by this Commission on 24.05.2018 is relevant to be emphasised whereby the respondent/complainant has agreed to forgo the compensation and the litigation cost. The orders passed are as under:-

 

24.05.2018

Present:         Mr. Shanky Bansal, Proxy for the Counsel for the Appellant.

Mr. Anup Upadhyay, Counsel for the Respondent.

 

FA-501/2014

 

                 Counsel for the appellant is not available for arguments. Counsel for the appellant is stated to be held up in the High Court.

                 There is delay of 132 days in filing the appeal, which is strongly opposed by the respondent. It is contended that appellant was duly served before the District Forum. It is stated that record of District Forum be summoned to see the same. Counsel for the respondent states that respondent is willing to give up the compensation and costs awarded by the District Forum if the appellant returns the documents as directed by the District Forum. Let appellant seek instruction in this regard.

                 Record of District Forum be requisitioned for the next date.

                 Re-list on 27.09.2018.

 

16.             The point that remains adjudication is whether the direction of the District Forum, directing the appellant to return the original documents suffer from any infirmity. The fact that the loan amount has been repaid cannot be disputed at this stage since the appellant never took any steps to lead the evidence to the contrary. The argument that they were proceeded ex-parte and therefore they could not lead any evidence cannot be accepted as they took no steps to get this ex-parte order set aside. They have infact filed appeal only on receipt of notice on the execution application. To put it differently there exists nothing on record to suggest that the loan amount was not repaid and if that be the case their subsists nothing on record enabling the appellant to withhold returning of the original records. In these circumstances there is no infirmity in the orders passed and if that be the case there are no grounds to accept the appeal. It is accordingly rejected being devoid of merit.
17.             Ordered accordingly.
18.             A copy of this order be forwarded to the parties to the case free of cost as is statutorily required. A copy of this order be forwarded to the District Forum for information and records. File be consigned to records.

 

 

(Anil Srivastava)​

Member