Per Justice Sham Sunder , President Alongwith the appeal, which is preferred against the order dated 16.3.2011 , rendered by the District Consumer Disputes Redressal Forum-II, U.T.Chandigarh (hereinafter to be referred as the District Forum only), vide which the execution application, filed by the complainant/decree holder, was disposed of, being fully satisfied, an application for the condonation of delay of 85 days, as per the applicant/appellant( 87 days as per the office report), in filing the same(appeal), was moved by the applicant/appellant. 2. The stand projected, by the applicant/appellant, in the application, for the condonation of delay, is that he received a copy of the impugned order on 1.4.2011 by post. The limitation for filing an appeal, against the impugned order was 30 days, as per the Consumer Protection Act,1986 (hereinafter to be called as the Act only). It was stated that the delay of 85 days in filing the appeal, occurred, due to the reason, that the applicant/appellant, was very ill and not keeping good health and, as such, his movements were restricted to the room only. It was further stated that the delay, in filing the appeal, was neither intentional, nor deliberate. Accordingly a prayer, referred to above, was made. 3. Reply to the application, was filed by the respondents, wherein, it was stated that no sufficient cause had been shown, for the condonation of delay. It was further stated that no medical record with regard to the illness of the applicant/appellant,and his treatment by the doctor(s), was produced. It was further stated that, in the absence of any medical record, it could not be said that the delay in filing the appeal, was bonafide 4. We have heard the applicant/appellant, the Counsel for the respondents, and have gone through the record, carefully. 5. The applicant/appellant, submitted that, though the certified copy of the impugned order dated 16.3.2011 was received by him on 1-4-2011, yet on account of his illness, which restricted his movements, to his room only , he could not file the appeal in time. It was further submitted by him, that the delay was neither intentional, nor deliberate. It was further submitted that if the delay was not condoned, the applicant/appellant shall suffer an irreparable loss. It was further submitted that there is sufficient cause for condoning the delay. 6. On the other hand, the Counsel for the respondents, submitted that, no medical record, was produced by the applicant/appellant, to even prima facie establish, that he was seriously ill, and his movements were restricted to the room, and for that reason, he could not file the appeal in time. He further submitted that the delay in filing the appeal, was intentional and deliberate. He further submitted that no sufficient cause having been shown by the applicant/appellant, for the condonation of delay, which is about three times more than the normal period of filing the appeal, the application was liable to be dismissed. 7. The principle of law, laid down, in Smt.Tara Wanti Vs State of Haryana through the Collector, Kurukshetra AIR1995 Punjab & Haryana 32, a case decided by a Full Bench of the Punjab & Haryana High Court , was to the effect, that sufficient cause, within the meaning of Section 5 of the Limitation Act, must be a cause, which is beyond the control of the party, invoking the aid of the Section, and the test to be applied, would be to see, as to whether, it was a bona-fide cause, in as much as, nothing could be considered to be bonafide, which is not done, with due care and attention. In the instant case, the reason, stated in the application, was that the applicant/appellant being seriously ill and his movements were restricted to room only, he could not file the appeal within the normal period of 30 days, stipulated in the Act. Mere averments, with regard to his illness and restriction of his movements to the room only, made by the applicant/appellant, in the application, without substantiation, through any material, are of no avail. No medical record was produced by the applicant/appellant alongwith the application showing that from 1.4.2011 when he received the certified copy of the impugned order, through post, until the filing of the appeal, he was seriously ill. Even no document was produced by the applicant/appellant that he was getting treatment for any ailment from any hospital and had been advised complete bed rest, thereby restricting his movements to the room only, resulting into delay in filing the appeal. In case, the applicant/appellant was really seriously ill, it was incumbent upon him, to produce the medical record to substantiate his stand. It is evident from the impugned order, that even at the time of pronouncement of the same, the applicant was present before the District Forum. Once the certified copy of the order, free of cost, was received by the applicant/appellant on 1.4.2011, it was his duty, to file the appeal within the prescribed period of 30 days, but he failed to do so. As stated above, since no medical record, with regard to the illness of the applicant/appellant, and restricting his movements to the room, was produced, it could be safely held that there was deliberate inaction and lack of bonafides on his part. Even, in support of the application, only a brief affidavit, was filed by the applicant/appellant which could not be taken into consideration. The delay in filing the appeal, by the applicant/appellant, is about three times, more than the normal period of filing the same, as provided by Section 15 of the Consumer Protection Act. Since no sufficient cause is established, as per the proviso engrafted to Section 15 of the Act, the delay of 85 days, in filing the appeal, as per the applicant/appellant(87 days as per the office report), cannot be condoned. The application is, thus, liable to be dismissed. 8. The next question, that arises for consideration, is, as to whether, this Commission, is required to decide the appeal, on merits, once it has come to the conclusion, that the same(appeal) is barred by time, and the application for condonation of delay is liable to be dismissed. The answer to this question, is a big no, as provided by the Apex Court in State Bank of India Vs B.S.Agricultural Industries (I) II(2009)CPJ 29(SC), while considering the provisions of Section 24A of the Act. Although, the question before the Apex Court, was only 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, yet it (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 complainant 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 U/s 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 of 85 days as per the applicant/appellant (87 days as per the office report) is dismissed. Consequently, the appeal, being barred by time, is also dismissed, 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.
| | HON'BLE MRS. NEENA SANDHU, MEMBER | HON'BLE MR. JUSTICE SHAM SUNDER, PRESIDENT | , | |
