Chandigarh

StateCommission

A/215/2019

Career Plus Education Pvt. Ltd. - Complainant(s)

Versus

Hitesh Sharma - Opp.Party(s)

Mandeep Kumar Dhot Adv.

14 Oct 2019

ORDER

        STATE CONSUMER DISPUTES REDRESSAL COMMISSION,

U.T., CHANDIGARH

 

 

Appeal No.	:	215 of 2019
Date of Institution	:	25.09.2019
Date of Decision	:	14.10.2019

 

1.  Career Plus Education Pvt. Ltd. through its Managing Director/Authorized Signatory having its office at SCO 142-143, Sector 34-A, Chandigarh.

2.  The Managing Director/Authorized Signatory, Carrier Plus Education Pvt. Ltd. having its Office at SCO No.142-143, Sector 34-A, Chandigarh.

3.  Pooja Menon, Director, Career Plus Education Pvt. Ltd. having its Office at SCO No.142-143, Sector 34-A, Chandigarh.

 …….Appellants/Opposite Parties.

Versus

 

Hitesh Sharma, son of Sh. Raman Kumar, Resident of Village & Post Office Sanoli, District Una (H.P.).

 

...Respondent/Complainant.

 

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

 

BEFORE: JUSTICE RAJ SHEKHAR ATTRI, PRESIDENT.

                MRS. PADMA PANDEY, MEMBER.

                MR. RAJESH K. ARYA, MEMBER.

       

Argued by:

 

Sh. Mandeep Kumar Dhot, Advocate for the appellants.

 

PER  RAJESH  K.  ARYA, MEMBER

                   The opposite parties have filed this appeal against order dated 30.08.2018 passed by District Consumer Disputes Redressal Forum-I, U.T., Chandigarh (in short ‘the Forum’ only), vide which, the complaint of the respondent/complainant bearing No.871 of 2016 was partly allowed directing the opposite party to refund an amount of Rs.2,15,200/- overcharged by them besides payment of Rs.1 Lakh and Rs.11,000/- towards compensation and cost of litigation. When filing this appeal, the appellants have also filed an application to condone delay of 362 days in filing the same (appeal).

2.             It has been stated in the application for condonation of delay, which is accompanied by affidavit of Pooja Menon, Director, Career Plus Education Pvt. Ltd., that the appellants did not receive the copy of order dated 30.08.2018 up-to 05.09.2019, due to the reason that the she was married on 15.12.2015 and due to some family problems, closed her institute in the month of December 2017. She remained in touch with her Counsel up-to July 2018 but suddenly, due to illness of her 1½ years old son, who remained admitted for about one week in September in ICU and further as she had to take care of her son, she could not contact her Counsel and also lost his number from her mobile. She became pregnant again and gave birth to her second child on 03.07.2019. Due to aforesaid reasons, neither she could contact her Counsel nor did the Counsel contact her. It has been further stated in the application, suddenly when one police official came to their residence alongwith warrants, she was not at home and when enquired, the appellants came to know about the impugned order dated 30.08.2018. Immediately, she applied for the certified copy of the impugned order through her husband on 05.09.2019 and contacted her Counsel. Thus, delay of 362 days occurred in filing the present appeal. It was further stated that delay, in filing the appeal, was neither intentional nor deliberate. Accordingly, the prayer was made to condone the delay aforesaid.

3.             On merits also, Counsel for the appellants argued that the respondent/complainant signed a contract with FTMS Global Academy, Singapore but the said college was not made party in the complaint. It has been also argued that the only duty of the appellants was to get admission of the respondent/complainant in the promised institute, which was done within time and as such, the duty of the appellants came to an end. It has further been argued that the appellants are not liable to make any refund of the amount of fee paid by the respondent/complainant to the college authorities. A prayer to allow the appeal and setting aside the impugned order has been made.

4.             We have heard the Counsel for the appellants on the application for condonation of delay as also in the main appeal, at the preliminary stage, and have also gone through the entire record of the case very carefully.

5.             We are of the considered opinion that no ground is made out to condone the delay in filing the present appeal, which deserves to be dismissed being time barred, for the reasons to be recorded hereinafter.

6.             Perusal of record of complaint file transpires that Counsel for both the parties addressed arguments before the Forum on 21.08.2018 and thereafter, the judgment was pronounced within ten days i.e. on 30.08.2018. Record also reveals that Counsel was regularly appearing on behalf of the opposite parties before the Forum. It is very surprising that when on each and every date, Counsel appeared on behalf of the opposite parties before the Forum and argued the matter, then how the appellants/opposite parties could not be able to have the knowledge of pronouncement of the judgment. We are not convinced with the grounds mentioned in the application that due to her marriage in December 2015 or family problems, she closed the institute in December 2017 and that of illness of her 1½ years old son and giving birth of second child in July 2019. It is said that she remained in touch with Counsel up to July 2018. Why not thereafter, when the case was duly argued by her Counsel in August, 2018 and judgment was pronounced in August itself. The appellants could have contacted their Counsel within a month or so qua pronouncement of judgment. When Counsel was appearing, it could not be said that the appellants were not in the knowledge of pendency of complaint.  Further, the appellants could see the judgment from the website of this Commission. In view of above, an adverse inference is drawn against the appellants that they were very much in the knowledge of the judgment passed against them. If it is accepted for the sake of arguments that the appellants/opposite parties had closed their institute in December 2017, then it was their bounden duty to convey their fresh address to the Forum during the pendency of the complaint. The opposite parties filed their written arguments before the Forum on 13.12.2017 and thereafter, regularly appearing on each and every date. Still they did not bother to inform that they closed their institute December 2017. Moreover, when the appellants had closed their institute and changed their address, then their plea that they did not receive the copy of the impugned order is unsustainable. Simply saying that appellant No.3 could not contact the Counsel due to aforesaid reasons cannot be said to be a valid and acceptable ground to condone the delay. The grounds appear to be vague. It is not so that for all the time, Ms. Pooja Menon, Director was attending to his ailing son. She must be doing other works also. She failed to take adequate steps to lay challenge the order passed by the Forum allowing the complaint. She kept silent for complete one year. She could have contacted her Counsel during this period, which she did not. Negligence on the part of the appellants in not filing the present appeal within the stipulated period of limitation and after such a huge delay of 362 days, is writ large. No cogent and convincing ground has been shown by the appellants, which are said to be sufficient to condone a huge delay of 362 days in filing the appeal.

7.             It may also be stated here that under similar circumstances, the Hon’ble National Consumer Disputes Redressal Commission in the case of ‘Anita Tewari Vs. Lucknow Development Authority’, I (2018) CPJ 543 (NC), dismissed a Revision Petition bearing No.2417 of 2016 on the ground of limitation as well on merits. The ground taken for condonation of delay was that the husband of the petitioner was suffering from serious cardiac problem and was on continuous treatment. It was further stated that there were some other mishaps too in the family and hence, the petition could not be filed in time and there occurred delay of 2204 days in filing the revision petition. The Hon’ble National Commission held in Para 8 as under:-

“8.       A perusal of the impugned order of the State Commission reveals that Mr. Sanjeev Bahadur Srivastava, Advocate was present on behalf of the petitioner/complainant before the State Commission, when the impugned order was pronounced.  It is not understood, therefore, as to why the complainant did not take steps to challenge the said order in time before this Commission.  The grounds taken in the application for condonation of delay do not offer any cogent and convincing explanation for the delay of 2204 days in filing the revision petition.  Even if the husband of the petitioner was suffering from medical problems, or even if the petitioner lost some members of the family, it does not explain adequately that there could be a huge delay of 2204 days in filing the revision petition.  The petition, therefore, deserves to be dismissed on the ground of delay alone.  We are supported in this contention by a judgment by the Hon’ble Apex Court in “Anshul Aggarwal vs. New Okhla Industrial Development Authority”, [IV (2011) CPJ 63 (SC)], in which, it has been 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 orders of the Consumer Fora.””

8.             Not only above, the Hon’ble National Commission recently dismissed a Revision Petition bearing No.1452 of 2018 titled B. K. Malhotra & Anr. Vs. Dewan Housing Finance Corporation & Anr., Revision Petition No.1452 of 2018  on 23.01.2019 on the ground of limitation. There was delay of 66 days in filing the said revision petition. Relevant Paras No.4 to 10 of the said judgment reads thus:-

“4.         The principle relating to condonation of delay is well settled.  The Courts are not required to take a rigid view while dealing with the application for condonation of delay in filing appeals and revision petitions. However, it is the duty of the party who is seeking condonation of delay to set out the facts showing sufficient reasons and causes for the delay.  The expression ‘sufficient cause’ has been defined by the Hon’ble Supreme Court in the case of Basavraj & Anr. Vs. The Spl. Land Acquisition Officer, 2013 AIR SCW 6510 as under:

 “9.        Sufficient cause is the cause for which defendant could not be blamed for his absence.  The meaning of the word “sufficient” is “adequate” or “enough”, inasmuch as may be necessary to answer the purpose intended  Therefore, the word “sufficient” embraces nor more than that which provides a platitude, which when the act done suffices to accomplish the purpose intended in the facts and circumstances existing in a case, duly examined from the view point of a reasonable standard of a cautious man.  In this context, “sufficient cause” means that the party should not have acted in a negligent manner or there was a want of bonafide on its part in view of the facts and circumstances of a case or it cannot be alleged that the party has “not acted diligently” or “remained inactive”.  However, the facts and circumstances of each case must afford sufficient ground to enable the Court concerned to exercise discretion, it has to be exercised judiciously.  The applicant  must satisfy  the  Court  that  he  was  prevented  by  any “sufficient cause” from prosecuting his case, and unless a satisfactory explanation is furnished, the Court should not allow the application for condonation of delay.  The court has to examine whether the mistake is bonafide or was merely a device to cover an ulterior purpose. (See: Manindra Land and Building Corporation Ltd.  V. Bhootnath Banerjee & Ors, AIR 1964 SC 1336; Lala Matadin V. A.Narayanan, AIR 1970 SC 1953; Parimal V. Veena alias Bharti AIR 2011 SC 1150 L2011 AIR SEW 1233); and Maniben Devraj Shah V. Municipal Corporation of Brihan Mumbai, AIR 2012 SC 1629: (2012 AIR SCW 2412).                           

12.       It is a settle legal proposition that law of limitation  may harshly affect a particular party but it has to be applied with all its rigour when the statute so prescribes.  The Court has no power to extend the period of limitation on equitable grounds.  “A result flawing from a statutory provision is never an evil.  A Court has no power to ignore that provision to relieve what it considers a distress resulting from its operation.”  The statutory provision may cause hardship or inconvenience to a particular party but the Court has no choice but to enforce it giving full effect to the same.  The legal maxim “dura lex sed lex” which means “the law is hard but it is the law”, stands attracted in  such a situation.  It has consistently been held that, “inconvenience is not” a decisive factor to be considered while interpreting a statute.

15.       The law on the issue can be summarized to the effect that where a case has been presented in the court beyond limitation, the applicant has to explain the court as to what was the “sufficient case” which means an adequate and enough reason which prevented him to approach the court within limitation. In case a party is found to be negligent, or for want of bona fide on his part in the facts and circumstances of the case, or found to have not acted diligently or remained inactive, there cannot be a justified ground to condone the delay.  No court could be justified in condoning such an inordinate delay by imposing any condition whatsoever.  The application is to be decided only within the parameters laid down by this court in regard to the condonation of delay.  In case there was no sufficient cause to prevent a litigant to approach the court on time condoning the delay without any justification, putting any condition whatsoever, amounts to passing an order in violation of the statutory provisions and it tantamounts to showing utter disregard to the legislature”.

5.         In the case of Ram Lal and Ors. Vs. Rewa Coalfields Limited, AIR 1962 Supreme Court 361,  the Hon’ble Supreme Court has held that it is not a matter of right to get the delay condoned.  It is discretion of the Court and where no sufficient reasons are shown for condoning the delay, the Courts / Commissions are within their power and jurisdiction to dismiss such applications.  The Hon’ble Supreme Court has held as under:

“It is, however, necessary to emphasize that even after sufficient cause has been shown a 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 by S.5. 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; but the scope of the enquiry while exercising the discretionary power after sufficient cause is shown would naturally be limited only to such facts as the Court may regard as relevant.”

6.         The test for ascertaining sufficient cause has been laid down by Hon’ble Supreme Court in the case of “R. B. Ramlingam vs. R. B. Bhavaneshwari, I (2009) CLT 188 (SC)  as under:

"We hold that in each and every case the Court has to examine whether delay in filing the special appeal 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.”

7.         In another matter, while dealing with matters under the Act, Hon’ble Supreme court in “Anshul Aggarwal vs. New Okhla Industrial Development Authority, (2011) 14 SCC 578,   has 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 Fora."

8.         The petitioner/complainant, therefore, has to show from the facts on record that he had been acting with due diligence and that they had sufficient reasons for not able to file the file the revision petition within the stipulated period and that there were sufficient reasons which prevented him from approaching the Court within limitation. In the present case,  the only ground shown is that file sent to the counsel got misplaced in the transit.  No date is given as to when the file was sent to the counsel and when the petitioner became aware that file got misplaced. 

9.         It is settled principle of law that petitioner who is making condonation of delay has to explain the delay of each and every date.  In the application, even the number of days for which condonation is sought is not mentioned and a gap is left.  This further reflects on the conduct of the petitioner.

10.       I find no ground to condone the delay.  The application for condonation of delay is accordingly dismissed. As a consequence, Revision Petition is also dismissed as barred by limitation.”

9.             Thus, the Hon’ble National Commission, placing reliance on the law laid down by Hon’ble Supreme Court of India in the cases of Basavraj & Anr.; Ram Lal and Ors.; R. B. Ramlingam; and Anshul Aggarwal (supra), clearly held the view that    the petitioner/ complainant had to show from the facts on record that he had been acting with due diligence and that they had sufficient reasons for not able to file the revision petition within the stipulated period and that there was sufficient reasons which prevented him from approaching the Court within limitation.  

10.           Under above circumstances, we are of the considered opinion that the appellants did not exhibit due diligence, to file an appeal, within the prescribed period of limitation and bald pleas have been taken in the application aforesaid, which are not sustainable in the eyes of law. No sufficient cause is made out, from the averments, contained in the application, for condoning the delay. The appellants did not act with due diligence resulting into delay of 362 days in filing the appeal which is beyond the prescribed period of limitation. The cause set up by the appellants, 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 aforesaid 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.

11.           Now  coming to the merits of the case, it is pertinent to mention here that earlier an appeal was filed by the respondent/complainant, bearing No.290 of 2018, which was dismissed by this Commission vide order dated 09.10.2018. In the said appeal, it was the grievance of the complainant that the Forum committed an error by not ordering refund of the entire amount paid. While dismissing the appeal of the respondent/complainant, this Commission held that it is an admitted fact that the opposite parties were deficient in arranging admission of the complainant in the educational institute concerned at Singapore, which was arranged at a belated stage. The aforesaid contention of the respondent/complainant was rejected by this Commission while holding in Para 7 of the said order dated 09.10.2018 as under:-

“7.     To the prayer made by the complainant that full amount be ordered to be refunded, it was rightly said that the complainant was also at fault as he, of his own, left the course.  Contention of the Counsel for the appellant that the Forum committed an error in not refunding the entire amount appears to be fallacious. It is not in dispute that the complainant reached Singapore and thereafter, on making payment for reporting late for admission, he was allowed to join the study course. It was his duty to object it when offer was made to him late.  Document on record signed by him clearly indicates that the date of commencement of the course was made known to the complainant. Before boarding the flight, he did not raise any objection qua sending him late to attend the study course. Furthermore, on account of leaving the course midway, the seat left by him must have gone waste as after lapse of about  2½ months, no person will opt to join the course.   The Forum has granted sufficient compensation.  No case is made out to interfere in the order, under challenge.”     

 

12.           This Commission firmly held that the Forum has granted sufficient compensation to the complainant and dismissed his appeal. The order of the District Forum was upheld.

13.           In the instant appeal, the contention of the appellants/opposite parties that only duty of the appellants was to get admission of the respondent/complainant in the promised institute, which was done within time and as such, the duty of the appellants came to an end, cannot be accepted being unsustainable as this Commission has already held the appellants/opposite parties were deficient in arranging admission of the complainant in the educational institute concerned at Singapore, which was arranged at a belated stage. Further argument raised that the appellants/opposite parties are not liable to make any refund of the amount of fee paid by the respondent/complainant to the college authorities also does not stand as the order impugned has already been upheld by this Commission in appeal filed by the respondent/complainant to the extent of quantum of relief awarded. As such, the present appeal filed by the appellants/opposite parties is liable to be dismissed on merits also.

14.           For the reasons recorded above the application for condonation of delay, being devoid of merit, must fail, and the same is dismissed. Consequently, the appeal, is also dismissed, at the preliminary stage, being barred by time as also on merits. with no order as to costs. The impugned order dated 30.08.2019 passed by District Forum-I, U.T., Chandigarh in Consumer Complaint bearing No.871 of 2016 is upheld.

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

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

Pronounced.

14.10.2019.

[RAJ SHEKHAR ATTRI]

PRESIDENT

 

 

(PADMA PANDEY)

        MEMBER

 

 

(RAJESH  K. ARYA)

MEMBER

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