Per Hon’ble Mrs.Usha S. Thakare, Member)
[1] This is an application filed by M/s.Tirupati Construction through Constituted Attorney to condone the delay to prefer the appeal.
[2] The applicant has preferred an appeal against the order passed in Consumer Complaint no.164/2011 dated 30/05/2013. However, there is a delay of 117 days to prefer the appeal. According to the applicant/appellant, copy of the judgment was delivered at office of the applicant at the end of June 2013. It was received by the staff of the appellant. The staff member who received the delivery of the impugned order did not understand the importance of the document so received and did not inform Managing Partner of the appellant, Mr.Ashok Kumar Agarwal about the said papers. It was brought to the notice of Mr.Ashok Kumar Agarwal on 03/10/2013. Thereafter, Mr.Ashok Kumar Agarwal approached the lawyer, sought legal advice and papers were forwarded to the advocate. Immediately thereafter, the appeal was prepared and lodged. If the delay is not condoned, the applicant will suffer grave and irreparable loss which cannot compensated in terms of money. Hence, the delay may be condoned.
[3] The respondent has opposed the application by filing reply and denied that there is sufficient reason to condone the delay. It is submitted that certified copy of the order was issued to the applicant/appellant on 03/06/2013. Applicant might have received it on 07/06/2013 as the applicant/appellant is resident of Mumbai. The appellant has given evasive date of receipt of order copy. The appeal is not filed intentionally within the limitation. The application deserved to be dismissed.
[4] Heard learned counsel Shri V.S.Sawant for the applicant/appellant and learned counsel Mr.Bhaskar Yogi for the non-applicant/respondent.
[5] Admittedly, consumer complaint bearing no.164/2011 was decided on 30/05/2013. Free copy was sent to the applicant/appellant. It is mentioned in the application by the applicant/appellant that order copy was received by the staff member at the end of June 2013. As the staff member did not understand importance, he did not preserve it properly. Applicant/appellant is liable for irresponsible act and conduct of its employee or staff members.
[6] It is to be noted here that affidavit of defaulting member of staff does not find place on record. Nothing is on record to show that action was taken against the defaulting member. It is not made clear when said copy of order was found and where it was lying. It was brought to the notice of Mr.Ashok Kumar Agarwal on 30/10/2013. Name of defaulting staff member is also not disclosed for the reasons best known to the applicant/appellant.
[7] It is brought to my knowledge by learned counsel for the respondent that in delay condonation application, in para 3, it is mentioned that the application is filed on 11/10/2013. Hence, there is a delay of 117 days. In the para 3 of the affidavit in support of the application, it is mentioned that the appeal is filed on 24/09/2013. Said affidavit is affirmed on 17/10/2013 and duly notarized on 23/10/2013. Office endorsement shows that the appeal is filed on 25/10/2013. Mentioning of date as 24/09/2013 in the affidavit appears to be typographical mistake.
[8] Adv.Sawant made further attack by arguing that the application is filed by the Power of Attorney holder, Mr.Chetan Keshvlal Bavalia. The Power of Attorney is executed on 16/08/2012. It was notarized on 06/11/2012. Power of Attorney is Special Power of Attorney executed for filing written statement, revision, appeal, writ petition, but not for filing delay condonation application. It appears that Power of Attorney was executed for taking legal actions. Therefore, I do not find any substance in this argument. ]
[9] During the course of arguments, learned counsel Mr.Bhaskar Yogi urged that the order passed by the learned District Forum is without jurisdiction. Learned District Forum has exceeded its pecuniary jurisdiction. It is urged that area of flat in dispute was 920 sq.ft. and agreed rate was Rs.2,075/- per sq.ft. Considering the other reliefs, it is clear that learned District Forum has exceeded its jurisdiction.
[10] Applicant/original opponent has failed to appear before the District Forum. Therefore, consumer complaint was proceeded ex-parte against the present the applicant/appellant. It is to be noted here that the applicant/appellant had preferred Revision Petition against the said order. By filling Revision Petition, two orders were challenged i.e. dated 13/12/2013 and 28/06/2012 passed in consumer complaint no.164/2011. Mainly it was filed by the applicant/appellant to challenge the ex-parte order passed against the original opponent/applicant. Said revision petition was dismissed on 30/08/2012. The applicant/appellant could have participated in the proccedings before the learned District Forum and could have raised the law point i.e. point of jurisdiction. This issue is not taken up in the delay condonation application. However, the complainant/respondent has made out the case to show that claim made by the complainant is within the pecuniary jurisdiction of the learned District Forum.
[11] It is urged that the applicant/opponent had filed written statement in consumer complaint bearing no.DF/MSD/74/2011. Said complaint was filed by Mrs.Harmeet Kaur Oberoi against the present applicant/appellant. Consumer dispute was pertaining to the Flat No.501. In para no.4, agreed price of the flat no.502 was shown as Rs.19,09,000-. Agreed price of the flat no.501 was shown Rs.18,98,625/-. This fact is not disputed.
[12] I find substance in the arguments advance by the respondent. Objection was not raised about the pecuniary jurisdiction by the applicant/appellant at proper stage, although the learned counsel for applicant/appellant appeared on its behalf before the District Forum.
[13] Hon’ble Apex court in the case of Anshul Aggrawal V/s. New Okhla Industrial Development Authority, IV (2011)CPJ 63 (SC) held 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 petitions filed against the order of the Consumer Fora”.
[14] Hon’ble Apex Court in the case of Balwant Singh V/s. Jagdish Singh & ors., SLT 790 = III (2010) CLT 201 (SC), observed that -
“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.”
[15] The party is not entitled to the condonation of delay in question as a matter of right. The proof of a sufficient cause is a discretionary jurisdiction vested in the Court. If sufficient cause is not proved nothing further has to be done; the application for condonation has to be dismissed on that ground alone. If sufficient cause is shown then the Court has to enquire whether in its discretion it should condone the delay. 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 fides may fall for consideration.
[16] The applicant/appellant failed to make out the sufficient reason to condone the delay on 117 days. The applicant/appellant is vicariously liable for negligent act of its staff member against whom no action was taken. Applicant/appellant has kept mum for long time. Inordinate delay in filing appeal speaks in volume.
[17] The object for fixing time-limit for litigation is based on public policy. Law comes to the assistance of the vigilant and not of the sleepy.
[18] In case in hand the applicant is not at all diligent. It fails to make out sufficient reason to condone the delay. As a result application deserves to be dismissed. Hence the following order.
ORDER
- Misc.Application for condonation of delay bearing no.MA/13/192 is hereby rejected.
- Parties to bear their own costs.
- Consequently, the appeal bearing no.A/13/367 is not entertained for consideration.
Pronounced on 14th October, 2014.
