Punjab

Ludhiana

CC/15/81

Avtar Singh - Complainant(s)

Versus

Gaidu Products(India) - Opp.Party(s)

Upkar Singh

06 May 2015

ORDER

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM,                                              

                                                   LUDHIANA.                                                                                                                                                    C.C. No.81 of 09.02.2015

                                                                   Date of decision 06.05.2015

Avtar Singh son of Sh.Mann Singh Proprietor of M/s Happy Engg. Works Pipli, Ladwa Road, Pili, Tehsil Thanesar, District Kurukshetra.

….Complainant

                                                Versus       

Gaidu Products (India) 225 B, Industrial Estate, Link Road, Ludhiana-India through Managing Director.

                                                                                   …Opposite Party

 

          (APPLICATION FOR CONDONATION OF DELAY IN FILING THE COMPLAINT)

 

Quorum      Sh.R.L.Ahuja, President.

                   Ms.Babita, Member.

 

Present:       Sh.Upkar Singh, Advocate for applicant/complainant.

                   Sh.N.C.Kapil, Advocate for respondent/OP.

                   

ORDER

R.L.AHUJA, PRESIDENT

 

1.                Arguments have been heard on the application filed by the applicant/complainant for condonation of delay in filing the complaint as well as admissibility of the complaint. It is averred in the application that earlier the complainant filed the similar complaint before the Hon’ble Forum at Kurukshetra, but the said forum dismissed the said complaint for the want of jurisdiction and further, directed the complainant to approach before the appropriate forum. As such, the complainant applied the certified copy of the order dated 2.12.2014 passed by the Hon’ble Forum, Kurukshetra and the copy of order prepared on 4.12.2014 and the same was delivered on 8.12.2014. After receiving the certified copy, the complainant immediately engaged his counsel at Ludhiana and as such, the present complaint is filed. The delay in filing the complaint is neither intentional nor willful but due to the reason stated above and there are sufficient grounds for condoning the delay in filing the complaint and the same is also warranted by law and equity and is also in the interest of justice.

2.                In reply filed by the respondent/OP, it has been submitted in the preliminary objections that the present application is liable to be dismissed on a simple score that the complainant is not prosecuting the case diligently and bonafide thereby this is not a case of prosecuting the previous proceedings bonafide. The respondent/OP had taken objection before the District Consumer Disputes Redressal Forum, Kurukshetra i.e. the Consumer Dispute Redressal Forum, Kurukshetra has no jurisdiction to entertain and decide the present complaint as no cause of action has been accrued to the complainant at Pipli in Kurukshetra. The machinery was purchased at Ludhiana. Inspite of this fact, the complainant has not thought fit to get the permission from the Consumer Disputes Redressal Forum and file the present petition thereby there is no bona fide on the part of the complainant. It is the complainant who has prosecuted the litigation since 19.6.2013 to 2.12.2014 without bona fide. Thus, the period spent by the complainant at Kurukshetra for prosecuting the case cannot be condoned. It was also laid down by the Hon’ble National Commission that delay u/s 14 of the Limitation Act, 1963 can be condoned only if the petition under wrong court is filed in good faith. Therefore, there is no reason to condone the delay. As per the allegations in the complaint, the machinery was purchased on 22.6.2011, the limitation is two years which expired on 21.6.2013, the complainant has neither prosecuted the litigation at Kurukshetra with diligently and honestly, rather the present complaint has been filed with an oblique motive only to harass the OP. Reply on facts, all the allegations made in the application are denied and made prayer for dismissal of application with costs.

3.                During the course of arguments, learned counsel for the respondent/OP has relied upon judgments titled as Rabindra Nath Samuel Dawson vs. Sivakami and others-1972 AIR(SC)-73; United India Insurance Co.Ltd.and another vs. Aristo Exports Pvt. Ltd.-2012(1)CPC-468(N.C.); Thankamma vs. Bharathi Pillari-1994(1)R.R.R.-218(Kerala High Court) and Deena(dead) through Lrs vs. Bharat Singh(dead) through Lrs-2002(4)ALL MR 549(S.C.).

4.                We have heard the rival contention of the learned counsel for both the parties and have perused the judgments placed on record by the learned counsel for the respondent/OP and have also gone through the documents on the file very carefully.

5.                Perusal of the complaint reveals that the complainant/applicant has filed the present complaint with the averments that he had purchased machinery worth of Rs.1,92,400/- from OP on 22.6.2011 vide invoice No.95 dated 22.6.2011. Respondent had prior motive to cheat the complainant because the respondent told the complainant that this machinery is new one whereas, it was lying outside the premises of the respondent i.e. shutter rolling and the respondent did paint on it and told the complainant that it is new one and the respondent have guarantee of two years to the complainant. The said shutter rolling continued to harass the complainant due to defects in it since beginning. The complainant continued to requests the respondent to get it repaired or change it one phones, but the respondent did not listen the complainant. The complainant suffers great loss due to defect in shutter rolling worth of Rs.85,000/- and the respondent is not hearing the complainant. Alongwith the complaint, the complainant has also filed the copy of order passed by the District Consumer Disputes Redressal Forum, Kurukshetra in complaint No.128/2013 which was decided on 2.12.2014. Since it is the specific assertion of the complainant that he had purchased the machinery on 22.6.2011 and the complaint was filed before this District Forum, Kurukshetra within two years i.e. on 19.6.2013. However, the same was dismissed for want of jurisdiction. The copy of order was prepared on 4.12.2014 and the same was delivered on 8.12.2014.

6.                Since, as per the allegations of the complainant that the machinery was defective since the date of its beginning i.e. 22.6.2011 and the first complaint No.128 of 2013 was filed by the complainant within the period of limitation and as per the order of District Forum, Kurukshetra, the complainant may seek exemption/condonation of the time spent during the pendency of the complaint as per the provisions of Section 14(2) of the Limitation Act, meaning thereby that the complainant can get the period condoned during which, this complaint remained pending before the Hon’ble District Consumer Forum at Kurukshetra. But perusal of this complaint reveals that the complainant has not explained the sufficient cause which prevented him not to file the complaint after taking the copy of order from the District Forum, Kurukshetra on 8.12.2014 as the present complaint has been filed on 9.2.2015. It is a well settled principle of law that in case of condonation of delay, the applicant is supposed to explain each and every day of delay in order to get benefit of condonation of delay under the relevant provision of the Act. But in the present case, the complainant/applicant has not explained the delay which he was required to explain. As such, the present complaint is not maintainable and further, we find force from the judgments titled as Rabindra Nath Samuel Dawson vs. Sivakami and others-1972 AIR(SC)-73, vide which, it has been observed that benefit under section 14 available where party has been prosecuting the case with due diligence another civil proceedings.

7.                In view of the above discussion and the aforesaid law laid down by the Hon’ble Supreme Court of India, we are of the view that application of the complainant for condonation of delay is devoid of any merit and the same is hereby dismissed and consequently, complaint of the complainant is also dismissed. Copy of the order be supplied to the parties free of costs. File be consigned to the Record Room.

                              (Babita)                         (R.L.Ahuja)

                               Member                       President

Announced in Open Forum.

Dated:06.05.2015

Gurpreet Sharma