Chandigarh

StateCommission

A/5/2015

Ansal Properties & Infrastructure Ltd, - Complainant(s)

Versus

Dr. Nitin Madhusudan Nagarkar - Opp.Party(s)

Gaurav Chopra,Adv.

19 Feb 2015

ORDER

STATE CONSUMER DISPUTES REDRESSAL COMMISSION,

U.T., CHANDIGARH

                                                                 

First Appeal No.	:	05 of 2015
Date of Institution	:	08.01.2015
Date of Decision	:	19.02.2015

 

M/s. Ansal Properties & Infrastructure Ltd., SCO No.183-184, Sector 9-C, Chandigarh through its Sales Manager Mr. Raghunath Sharma (Sales & Marketing).

……Appellant/Opposite Party.

Versus

 

Dr. Nitin Madhusudan Nagarkar son of Sh. M. S. Nagarkar, Director, All India Institute of Medical Sciences, Raipur, Chhattisgarh through Sh. Anoop Kumar, General Attorney.

               ....Respondent/Complainant.

 

 

Appeal under Section 15 of the Consumer Protection Act, 1986.

 

BEFORE:   JUSTICE SHAM SUNDER (RETD.), PRESIDENT.

                SH. DEV RAJ, MEMBER.

                SMT. PADMA PANDEY, MEMBER.

                                     

Argued by:

 

Sh. Gaurav Chopra, Advocate for the applicant/appellant.

Sh. H. S. Awasthi, Advocate for the respondent.

 

PER DEV RAJ, MEMBER.

              This appeal is directed against the order dated 18.09.2014, rendered by the District Consumer Disputes Redressal Forum-II, U.T., Chandigarh (hereinafter to be called as the District Forum only), vide which it allowed the complaint of the complainant (now respondent) and directed the Opposite Party (now appellant) as under:-

“10. In the light of above observations, we are of the concerted view that the Opposite Party is found deficient in giving proper service to the complainant and having indulged in unfair trade practice. Hence, the present complaint of the Complainant deserves to succeed against the Opposite Party, and the same is allowed, qua it. The Opposite Party is directed  to:-

 

 

[a]   To pay Rs.7,62,028/- deposited by the Complainant against the allotment of the dwelling unit;

[b]   To pay Rs.25,000/- to the Complainant on account of deficiency in service, unfair trade practice and causing mental agony and harassment;  

[c]    To pay Rs.10,000/- as cost of litigation;

 

11.  The above said order shall be complied within 45 days of its receipt by the Opposite Party; thereafter, Opposite Party shall be liable for an interest @12% per annum on the amount mentioned in sub-para [a] & [b] of Para 10 above from the date of institution of this complaint, till it is paid, apart from cost of litigation of Rs.10,000/-.”

2.           The facts, in brief, are that the complainant, after going through the advertisement published by the Opposite Party for Provisional Registration of residential accommodation in Victoria Floors, Sector 116, Mohali, a project launched by it (Opposite Party), submitted an application form and deposited an amount of Rs.6,50,000/-vide cheque dated 19.10.2011. It was stated that after encashing the said cheque, the Opposite Party issued letter dated 14.11.2011 giving break-up of the payment and acknowledging payments. It was further stated that the balance amount of Rs.40,180/- was paid vide cheque dated 26.01.2012. It was further stated that the provisional registration was to be superseded by the terms and conditions of Buyers’ Agreement as per Annexure C-1, the application form. It was further stated that in the application, it was mentioned that the terms and conditions contained in Buyers Agreement would be final for permanent allotment of the residential flat. It was further stated that for all intents and purposes, relationship between the complainant and the Opposite Party was to be seen from the terms and conditions of Annexure C-1, the application for registration of flat. It was further stated that the terms & conditions contained in Annexure C-1 were camouflaged in such a manner that after payment was received by the Opposite Party, the applicant under no circumstances gets any benefit/refund of the money or cancellation of the registration. It was further stated that some of the conditions, contained in Annexure C-1, which according to the complainant amounted to unfair trade practice, were mentioned from Sr. No.(a) to (i) in Para 3 (Pg. 2 to 4 of the complaint). It was further stated that after signing Annexure C-1 and getting no response of reciprocatory performance from the Opposite Party despite receiving approximately Rs.8,00,000/-, the complainant decided to cancel the allotment vide letter dated 09.08.2013 [Annexure C-2] because of his transfer from Chandigarh to Chhattisgarh. The complainant had in all paid a sum of Rs.7,61,989/-.

3.           It was further stated that, in response to the above, the Opposite Party sought formal application/letter from the complainant under his signatures for cancellation of unit, alongwith Buyers Agreement, Loan disbursement document, call notice, allotment letter etc. It was further stated that eventually, on 13.08.2013, the complainant requested for cancellation and the Opposite Party responded on 14.08.2013 having received all the demanded documents. It was further stated that nothing was done by the Opposite Party which slept over the requests made by the complainant, with regard to refund of amount deposited by him. It was further stated that the action of the Opposite Party of receiving earnest money, and then imposing many conditions, was with the intention to grab the public money. It was further stated that the complainant had to cancel the provisional registration because of no response from the Opposite Party, about the progress of the work and possession. It was further stated that had the possession been given, the complainant would have let out the premises on rent, to have some return of the investment made, which was also not possible on account of conduct of the Opposite Party.

4.           It was further stated that at the time of registration, the Opposite Party projected the terms and conditions vide Annexure C-1 and there was hardly time to go through and understand those terms and conditions and the complainant had no option at that time but to sign it as booking amount had been paid.  It was further stated that the Opposite Party failed to honour the commitment made in Exhibit C-1 and under these circumstances, the complainant was entitled to opt for cancellation. It was further stated that the Opposite Party had received about Rs.8 Lacs out of the total price of Rs.39 Lacs and as per Punjab Apartments and Property Regulation Act, 1995, it (Opposite Party) was not entitled to receive more than 25% unless reciprocal performance was shown.  It was further stated that on request of cancellation, the Opposite Party was adopting a shifting stand of forfeiture of 20% of the earnest money and then entire earnest money.

5.           It was further stated that the aforesaid acts of the Opposite Party, in not refunding the amount of Rs.8 Lacs alongwith interest, amounted to deficiency, in rendering service, and indulgence into unfair trade practice. When the grievance of the complainant, was not redressed, left with no alternative, a complaint under Section 12 of the Consumer Protection Act, 1986 (hereinafter to be called as the Act only),  directing the Opposite Party, to refund a sum of Rs.8 Lacs alongwith interest @18% per annum, from the respective dates of deposits;  pay Rs.1,00,000/- as compensation for physical harassment & mental agony and  Rs.25,000/- as cost of litigation, was filed.

6.           The Opposite Party, in its written statement, took-up a preliminary objection that since the complainant applied for the allotment of a flat for investment/commercial purposes, which was allotted to him on 26.6.2012, he was not a consumer as defined under Section 2(1)(d)(ii) of the Act. On merits, it was denied that it was an invitation form, rather it was an application form to apply for the provisional allotment of a residential/commercial plot in the residential colony known as Golf Links-II (Annexure R-1). It was denied that the complainant paid Rs.6.5 Lacs vide cheque No.286044 dated 19.10.2011, but, as a matter of fact, Rs.6 Lacs were paid vide cheque No.286044 dated 19.10.2011 (Annexure R-2). It was stated that Annexure C-2 attached with the complaint was letter dated 09.08.2013 and no letter dated 14.11.2011 was attached with the complaint showing the payments. It was admitted that Rs.40,180/- were paid vide receipt (Annexure R-3). It was admitted that the terms and conditions of the Buyers Agreement were to supersede the provisional allotment/registration terms and conditions. It was also admitted that the terms and conditions of the buyers agreement would be final for the permanent allotment of the residential flat. It was further stated that the complainant was allotted a unit admeasuring 1435 sq. ft. bearing No.254 FF vide allotment letter dated 26.6.2012. It was further stated that the allotment agreement was entered into between the parties (Annexure R-4), which clearly showed that the complainant signed each and every page of the same. It was further stated that copy of the allotment agreement was given to the complainant, who was deliberately denying the execution of the same. It was further stated that the allegations leveled were baseless, frivolous and carried no relevance because every application for allotment was followed by allotment agreement between the parties, which contained all the terms and conditions for cancellation.

7.           It was further stated that the complainant made payment of Rs.7,62,028/- as per plan, through cheques, and he opted for a specific payment plan, wherein the Bank had to make payment of unit, which was stopped by him (complainant). It was further stated that as per the allotment agreement, the complainant was bound to pay the balance amount within the stipulated time. It was further stated that the complainant defaulted in making payments to the Opposite Party and never paid a single penny except Rs.7,62,028/- out of Rs.39,00,000/- despite repeated demands (Annexure R/6 to R/10). It was further stated that finally the unit booked by the complainant was cancelled vide cancellation notice dated 20.2.2014 (Annexure R/11) and the money paid by him was forfeited, treating it as earnest money i.e. 20% of the total sale price of the unit as per the terms of allotment letter. It was further stated that neither there was any deficiency, in rendering service on the part of the Opposite Party nor it indulged into unfair trade practice. The remaining averments, being wrong, were denied.

8.           The parties led evidence, in support of their case.

9.           After hearing the Counsel for the parties, and, on going through the evidence, and record of the case, the District Forum, allowed the complaint, in the manner, referred to, in the opening para of the instant order. 

10.         Feeling aggrieved, the instant appeal, has been filed by the appellant/Opposite Party.

11.         Alongwith the appeal, an application under Section 5 of the Limitation Act, for condonation of delay of 75 days, as per the applicant/appellant (as per the office report 74 days), was filed by it, stating therein, that certified copy of the order dated 18.09.2014 was received by its representative by hand on 25.09.2014 and on receipt thereof, the same (order) was communicated by its Marketing Division to the Legal Department for the purpose of seeking an opinion regarding the legality of the order dated 18.09.2014 and for taking decision to file an appeal. It was further stated that the matter was subsequently examined by the Assistant Manager (Legal) and upon seeking formal clearance from the concerned quarters, the case file was forwarded to Sh. J. S. Mann, Advocate on 30.09.2014 for the purpose of instituting an appeal before this Commission. It was further stated that before the appeal could be filed, Sh. J. S. Mann had to undergo an appendicitis operation/surgery in mid October, 2014, as a result whereof, despite having appeared to contest some consumer complaints against the appellant/applicant, on account of having been advised bed rest, had to withdraw from the above mentioned complaints as well and was substituted by Sh. Vaibhav Narang, Advocate, to whom the case file was handed over by Sh. J. S. Mann, Advocate on 30.11.2014. It was further stated that, in the light of aforesaid unfortunate developments, the case file, upon issuance of appropriate sanction/approval by the Competent Authority, was forwarded to the present Counsel on 3.12.2014. It was further stated that thereafter the appeal was prepared and completed in all respects for the purpose of institution without any further delay. It was further stated that, in the first instance, the appeal was sought to be instituted on 17.12.2014 as the Counsel was to go abroad on 18.12.2014 by boarding an Air India flight from New Delhi at 1 PM. It was further stated that before this could be done, the Counsel for the applicant/appellant was informed telephonically that his aunt’s father Sh. Jagiri Lal Verma had expired due to which the Counsel had to leave immediately. It was further stated that the Counsel for the applicant/appellant returned from Australia on 3.1.2015 and the appeal was immediately filed on 08.01.2015. It was further stated that, as such, delay of 75 days had occurred. It was further stated that the delay in filing the appeal is bonafide and on account of the aforesaid reasons.

12.         The respondent filed reply to the application, for condonation of delay, aforesaid, wherein it was stated that the applicant/appellant be put to strict proof regarding the averments made in the application, regarding the moving of file from one department to another and one lawyer to another lawyer. It was further stated that, moreover, none of the facts were supported by any material, regarding sending the file for advice, return of the same or falling sickness of Advocate and person proceeding to Australia. It was further stated that the application for condonation of delay was based on conjecture and surmises and on speculation without there being any supporting material. In reply to Para 5 of application, it was stated that unusual procedure was depicted in the application which did not require that much time because the appeal was filed by the same Counsel who conducted the case and every document and material was within his knowledge. It was further stated that an attempt was made to make another ground of the Counsel going abroad and that too without caring for limitation for filing the appeal, which showed the attitude of the applicant/appellant. It was prayed that the application, being devoid of merit, be dismissed.

13.            We have heard the Counsel for the parties, on the application, for condonation of delay, as also, in the main appeal, and have gone through the record of the case, carefully.

14.         The Counsel for the applicant/appellant submitted that the delay in filing the appeal was unintentional and beyond the control of the applicant/appellant, as there was procedural delay in obtaining approval for filing the appeal, as the file was to be routed from one department to another. He further submitted that the Counsel for the applicant/appellant, Sh. J. S. Mann, Advocate, to whom the case was initially allocated, for filing appeal before this Commission, had undergone appendicitis surgery, as a result whereof, the file was to be handed over to some other Counsel. He prayed that delay, in filing the appeal, be condoned due to the reasons, explained in the application, for condonation of delay.

15.         The Counsel for the respondent/complainant submitted that the application for condonation of delay is not supported by evidence. He further submitted that no evidence has been adduced in support of the contention that the previous Counsel Sh. J. S. Maan underwent surgery as a result whereof, the case remained with Sh. J. S. Mann. He further submitted that even the dates/period consumed in seeking opinion and the period for which the file remained with Sh. J. S. Maan, Advocate have not been indicated. He further submitted that as per the averment in the application, the file was given to the present Counsel on 03.12.2014, who prepared the appeal for instituting the same before this Commission on 17.12.2014 but the Counsel had to go abroad on 18.12.2014 by boarding an Air India Flight from New Delhi. He further submitted that even this averment is also not supported by any documentary evidence. The Counsel placed reliance on Sukhwinder Singh & Ors. Vs. Surinder Pal & Ors, 1995 (2) Civil Court Cases 673 (P & H), wherein it was held that the application for condonation of delay must contain not only the cause, which led to the delay in filing the appeal but also must contain all the relevant material, which would enable the Court to determine that the applicant, despite due diligence, was prevented from filing the appeal within limitation. He also relied upon the judgment of the National Commission in G. R. Gupta Vs. Chairman, Rajasthan Housing Board & Ors., 1995 (1) Consumer Protection Reporter 841, wherein the delay of 78 days was not condoned as the appellant did not place on record any proof or any other material of the alleged hospital viz. admission or any medical certificate, to corroborate that his (appellant’s) mother suffered paralytic attack.

16.                  The first question, that falls for consideration, is, as to whether, there is sufficient cause for condonation of delay of 75 days, as per the applicant/appellant (as per the office report 74 days), in filing the appeal, under Section 15 of the Act or not. It was held in Smt. Tara Wanti Vs State of Haryana through the Collector, Kurukshetra AIR 1995 Punjab & Haryana 32, a case decided by a Full Bench of the  Punjab and  Haryana High Court,  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  New Bank of India Vs. M/s Marvels (India): 93 (2001) DLT 558, Delhi High Court,  it was held as under:-

“No doubt the words “sufficient cause” should receive liberal construction so as to advance substantial justice. However, when it is found that the applicants were most negligent in defending the case and their non-action and want of bonafides are clearly imputable, the Court would not help such a party. After all “sufficient cause” is an elastic expression for which no hard and fast guide-lines can be given and Court has to decide on the facts of each case as to whether, the defendant who has suffered ex-parte decree has been able to satisfactorily show sufficient cause for non- appearance and in examining this aspect, cumulative effect of all the relevant factors is to be seen.”

17.                    In  Oriental Insurance Co. Ltd. vs. Kailash Devi & Ors. AIR 1994 Punjab and Haryana 45, it was held as under:-

“There is no denying the fact that the expression sufficient cause should normally be construed liberally so as to advance substantial justice, but that would be in a case where no negligence or inaction or want of bonafides is imputable to the applicant. The discretion to condone the delay is to be exercised judicially i.e. one is not to be swayed by sympathy or benevolence.

 

18.               In R.B. Ramalingam Vs. R.B. Bhuvaneswari, 2009 (2) Scale 566, the Supreme Court observed as under:-

“We hold that in each and every case the Court has to examine whether delay in filing the Special 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”.

19.              In Balwant Singh Vs. Jagdish Singh and Ors, V (2010) SLT 790=III (2010) CLT 201 (SC), it was held as under:-

“The party should show that besides acting bona fide, it had taken all possible steps within its  power and control and had approached the Court without any unnecessary delay. The test is whether or not a cause is sufficient to see whether it could have been avoided by the party by the exercise of due care and attention. [Advanced Law Lexicon, P. Ramanatha Aiyar, 3rd Edition, 2005]”

20.         In Mahant Bikram Dass Chela Vs. Financial Commissioner and others, AIR 1977, S.C. 2221, it was held as under:-

“Section 5 of the Limitation Act is a hard task-master and judicial interpretation has encased it within a narrow compass. A large measure of case-law has grown around Section 5, its highlights being that one ought not easily to take away a right which has accrued to a party by lapse of time and that therefore a litigation who is not vigilant about his rights must explain every days delay”

21.              In Ansul Aggarwal Vs. New Okhla Industrial Development Authority, 2012 (2) CPC 3 (SC) it was 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”

22.         Recently, the National Consumer Disputes Redressal Commission, New Delhi in Regional Provident Commissioner, Guntur Vs. S. Siva Sankar Rao, Revision Petition No.1617 of 2014, decided on 01.05.2014, whereby five other similar Revision Petitions bearing No.1618, 1619, 1620, 1645 and 1796 all of 2014, were decided, while dealing with the issue as regards condonation of delay of 61, 62 and 78 days in filing the said Revision Petitions, placed reliance on Office of Chief Post Master General & Ors. Vs. Living Media India Ltd. & Anr., 2012 STPL (Web) 132 (SC), wherein the Hon’ble Apex Court held as under:-

“13. In our view, it is the right time to inform all the government bodies, their agencies and instrumentalities that unless they have reasonable and acceptable explanation for the delay and there was bonafide effort, there is no need to accept the usual explanation that the file was kept pending for several months/years due to considerable degree of procedural red-tape in the process. The government departments are under a special obligation to ensure that they perform their duties with diligence and commitment. Condonation of delay is an exception and should not be used as an anticipated benefit for government departments. The law shelters everyone under the same light and should not be swirled for the benefit of a few. Considering the fact that there was no proper explanation offered by the Department for the delay except mentioning of various dates, according to us, the Department has miserably failed to give any acceptable and cogent reasons sufficient to condone such a huge delay.

Accordingly, the appeals are liable to be dismissed on the  ground of delay.”

23.         The National Commission, in Para 8 of the order, held that “…in these cases, day to day delay was not explained. The cases are barred by limitation”.

24.         Further, in Paras 9 to 13, the National Commission held as under:-

9.  This view neatly dovetails with the following authorities. In Anshul Aggarwal v. New Okhla Industrial Development Authority, IV (2011) CPJ 63 (SC), R. B. Ramlingam v. R. B. Bhavaneshwari, I (2009) CLT 188 (SC)= I (2009) SLT 701=2009 (2) Scale 108, Ram Lal and Others v. Rewa Coalfields Ltd., AIR 1962 Supreme Court 361, and Bikram Dass vs. Financial Commissioner and Ors. AIR 1977 SC 1221.

10.    The latest view taken by the Supreme Court is in Civil Appeal No. 19896 of 2013 in the case “M/s Ambadi Enterprise Ltd. Vs. Smt. Rajalakshmi Subramanian”, decided on 12th July 2013 wherein SLP was dismissed upholding the judgment of this Commission, where the delay of 78 days was not condoned.

11.    Again the Apex Court while dismissing the Special Leave to Appeal (Civil) No. 33792 of 2013 in Chief Officer, Nagpur Housing & Area Development Board &Anr. V. Gopinath Kawadu Bhagat, decided on 19.11.2013, upholding the order of this Commission where 77 days delay was not condoned.

12.    Above all, in Sanjay Sidgonda Patl Vs. National Insurance Co. Ltd. & Ors., decided by the Apex Court while dismissing the Special Leave to Appeal  (Civil) No. 37183 of 2013, decided on 17.12.2013, upholding the order of this Commission wherein delay of 13 days was not condoned. 

13.    Consequently, we find that the case is barred by time.  However, we refrain from giving the view on the merits of this case.”

25.          A bare reading of the first proviso, engrafted to Section 15 of the Act, makes it clear, that the material part of the language thereof, is pari-materia to Section 5 of the Limitation Act, 1963. Keeping in view the principle of law, laid down, in the aforesaid cases, it is to be seen, as to whether, the applicant/appellant/Opposite Party, has been able to establish that it was on account of the procedural delay in obtaining the approval from the concerned departments for filing the appeal and subsequently illness of its Counsel Sh. J. S. Maan, Advocate, coupled with going abroad of the Counsel, that it could not file the appeal, against the order dated 18.09.2014, in time. It is evident from the office copy of the order dated 18.09.2014, on file of the District Forum that its (order dated 18.09.2014) certified copy was received by hand by the Counsel namely Sh. Subhash Chand, Advocate on behalf of the applicant/appellant/Opposite Party. The applicant/appellant, in support of its ground of procedural delay, as the file was to be routed through number of channels/departments for taking approval for filing the appeal, has filed affidavit of Sh. Amit Raina, its Assistant General Manager (Sales & Marketing). Interestingly, both the application for condonation of delay and the affidavit filed by Sh. Amit Raina, are silent as regards the dates, on which the file was referred to the Legal Department;  then to the Assistant Manager (Legal) and when the formal clearance from the concerned quarters was obtained. The applicant/appellant further stated that the file, after taking formal approval was handed over to Sh. J. S. Maan, Advocate on 30.09.2014, who subsequently underwent an operation/surgery in mid October 2014. However, the applicant/appellant did not place, on record, by way of any documentary evidence viz. medical record etc. to corroborate the same. Further, as per the applicant/appellant, after obtaining the appropriate sanction/approval, the file was handed over to the present Counsel namely Sh. Gaurav Chopra, Advocate on 3.12.2013. No doubt, the Counsel Sh. Gaurav Chopra, Advocate has also filed his own affidavit in support thereof, but the applicant/appellant did not even care to furnish the date, on which the final approval/sanction for filing the appeal was obtained or given by the appropriate authority/department.

26.         The next contention of the applicant/appellant was that the appeal was initially sought to be filed on 17.12.2014 but the same could not be filed as due to the sudden demise in the family of the Counsel for the applicant/appellant, he had to go abroad on 18.12.2014 by boarding an Air India flight from New Delhi at 1 PM. Though the Counsel in his affidavit has testified that he left for abroad on 18.12.2014 at 1 PM due to the demise of his aunt’s father Sh. Jagiri Lal Verma, in Air India flat from New Delhi, but he should have placed on record, the air tickets or boarding pass in support of his deposition. Mere mentioning of procedural delay, illness of the earlier Counsel and the present Counsel going abroad, in the absence of explanation for the entire period of delay, are not sufficient ground to condone the delay, whereas, the applicant/appellant was required to explain each day’s delay alongwith specific dates. In totality, the reasons mentioned, in the application, for condonation of delay, are not plausible. Thus, simple averment that there was procedural delay etc. is not the sufficient grounds, for condonation of delay of 75 days, as per the applicant/appellant (as per the office report 74 days). Therefore, it could be said that the applicant/appellant was not diligent enough to file the appeal within the stipulated period. The prescribed period of limitation, as envisaged by Section 15 of the Act, for filing an appeal is 30 days, from the date of receipt of a certified copy of the order.  The applicant/appellant did not act, with due diligence, resulting into delay of 75 days, (as per the office report 74 days), in filing the appeal, 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 of 75 days, (as per the office report 74 days), cannot be condoned. The principle of law, laid down, in the aforesaid cases, is fully applicable to the facts of the instant case. The application is, thus, liable to be dismissed.

27.               The next 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 of 75 days, as per the applicant/appellant (as per the office report 74 days), 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 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.”

28.             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).

29.             For the reasons, recorded above, the application for condonation of delay of 75 days, as per the applicant/appellant (as per the office report 74 days), 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, with no order as to costs.

30.          Certified copies of this order, be sent to the parties, free of charge.

31.          The file be consigned to Record Room, after completion.

Pronounced.

February 19, 2015.

Sd/-

[JUSTICE SHAM SUNDER (RETD.)]

PRESIDENT

 

 

Sd/-

(DEV RAJ)

MEMBER 

 

 

Sd/-

(PADMA PANDEY)

      MEMBER

 Ad