Chandigarh

StateCommission

A/140/2020

M/s Swami Sewabhavi Sanstha's Lotus Business School - Complainant(s)

Versus

Jagdeep Singh Dhaliwal - Opp.Party(s)

Sandeep Suri & Tushar Arora Adv.

08 Dec 2020

ORDER

STATE CONSUMER DISPUTES REDRESSAL COMMISSION,

U.T., CHANDIGARH

 

 

Appeal No.	:	140/2020
Date of Institution	:	20.10.2020
Date of Decision	:	08.12.2020

 

1. M/s Swami Sewabhavi Sanstha’s Lotus Business School, S. No.52/53, Jambe Road, Pune, Mumbai Expressway, Punawala, Pune – 411033 through its Director.
2. Charu Datta Bodhankar, Executive Director of M/s Swami Sewabhavi Sanstha’s Lotus Business School, S. No.52/53, Jambe Road, Pune, Mumbai Expressway, Punawala, Pune – 411033.

…..Appellants/Opposite Parties.

Versus

 

Jagdeep Singh Dhaliwal son of Avtar Singh  resident of House No.840, Sector 16-D, Chandigarh.

….Respondent/Complainant.

 

 

Appeal under Section 41 of the Consumer Protection Act, 2019.

 

BEFORE:  JUSTICE RAJ SHEKHAR ATTRI, PRESIDENT.

                  MRS. PADMA PANDEY, MEMBER.

                   MR. RAJESH K. ARYA, MEMBER.

 

Present through Video Conferencing:-    

 

Er. Sandeep Suri, Advocate for the appellants.

 

PER  RAJESH  K.  ARYA, MEMBER

                When filing this appeal against the order dated 10.09.2019 passed by District Consumer Disputes Redressal Forum-II, U.T., Chandigarh (now District Consumer Disputes Redressal Commission-II, U.T., Chandigarh (in short ‘District Commission’), in consumer complaint bearing no.55 of 2018, the applicants/appellants have also filed a miscellaneous application bearing No.748 of 2020 to condone delay of 367 days in filing the same (appeal).

2.             It was stated in the application for condonation of delay that as per the record of the District Commission, the certified copy was sent through post, however, as per available records, the same was not received by the appellants. It might be lost or misplaced as the appellants do not have any record of receipt of the said order. It was further stated that after waiting for some time, the Counsel applied for certified copy of the order impugned on 21.01.2020, which was prepared on 10.02.2020. It was further stated that the appeal was prepared by the Counsel and the same was required to be vetted and signed by the team of Pune, which was the worst affected city in the country with pandemic. The appeal was sent for vetting to the appellants in the first week of March 2020, when certain queries were also raised and some time was taken in addressing the same. It was further stated that the appellants had earlier prepared the statutory draft dated 17.10.2019 based on the copy available on the net and sent the same to the Counsel for filing the appeal and the same got lost in the office of the Counsel. It was further stated that by the time, the certified copy was prepared on 10.02.2020, the demand draft had expired. It was further stated that on account of non-available of certified copy of impugned order, the appeal could not be filed earlier. It was further stated that in the meantime on account of change in the Act, the demand draft of 50% amount was required to be prepared and the same was got prepared and filed alongwith the appeal. It was stated that that the delay was bona fide and not intentional and on account of circumstances beyond the control of the appellants. Accordingly, the prayer was made to condone the delay aforesaid. The application is accompanied by an affidavit of Mr. Charudatta Bodhankar, Executive Director and Authorized Signatory of appellant No.1.

3.             We have heard Counsel for the applicants/appellants and have gone through the entire record of the case very carefully.

4.             In the application aforesaid, it has been pressed to convince this Commission, that it was on account of various reasons beyond the control of the appellants i.e. non-receipt of certified copy of the impugned order, lock-down in the country on account of spread of Covid-19 Pandemic, misplacement of demand draft in the office of the Counsel etc., the appeal could not be filed by the appellants within the statutory period of 30 days.        In this regard, it may be stated here that from their own pleading in the application that the appellants had already prepared the statutory draft dated 17.10.2019 based on the copy available on the net, it is established that the appellants were very well in the knowledge of passing of the impugned order by this Commission. It means that the order impugned was very much available on the official website of this Commission in the month of October, 2019. Once the appellants had come to know about the final order passed in the month of October, 2019, it cannot be assumed that the same was not in the knowledge of the Counsel. Bare perusal of record of District Commission transpires that order was passed on 10.09.2019 and its copy was prepared on 13.09.2019 and the same was sent to both the parties i.e. the complainant (respondent herein) and the opposite parties (appellants herein) through registered post on 18.09.2020 and according to the report of the concerned official of District Commission, no report/envelop was received back till 05.11.2020. We are unable to understand that when already in the month of October 2019, passing of the impugned order was in the knowledge of the appellants as well as their Chandigarh based Counsel, what stopped them to contact the office of this Commission for the certified copy of the order. Their plea that they did not receive the certified copy of the order passed by the District Commission is bereft of any substance. It was for the first time on 24^th March 2020, the nationwide lockdown for 21 days as a preventive measure against Covid-19 pandemic was imposed by the Government. Till 24.03.2020, the appellants were having sufficient time of six month’s period for filing the appeal. Even the alleged demand draft was prepared by the appellants in October 2019 itself. Moreover, the Counsel for the appellants could have contacted the office of the District Commission in the month of October 2019 itself for issuing duplicate copy of the impugned order, which they finally obtained on 10.02.2020 on payment of the requisite fee of Rs.20/-. Though the factum of passing of impugned order by the District Commission was there in the knowledge of the appellants and their Counsel in the month of October, 2019, yet they deliberately to defeat the very purpose of the decree, were whiling away the time.

5.             Not only above, it is also important to mention here that Lockdown was lifted in a phased manner by Chandigarh Administration vide Order No.13180-HIII(5)/2020/5087 dated 18.05.2020, wherein it was stated that all UT Administration offices will function w.e.f. 19.05.2020 with 50% staff strength. The filing in this Commission had started. The appellants could have also filed the appeal in May 2020 with delay of less days/months but they also failed to do so and filed the present appeal on 20.10.2020 i.e. after delay of 367 days.

6.             Thus, the averments made in the application and also in the affidavit are vague. The affidavit filed by the applicants/appellants in support of the application for condonation of delay is also a short affidavit and not a detailed one. The grounds taken in the application for condonation of delay, which led to the delay in filing the appeal, are not sufficient to condone such a huge delay. Under these circumstances, the pleas taken by the applicants/appellants, to the effect that the delay in filing the appeal was on account of numerous reasons beyond the control of the appellants i.e. non-receipt of certified copy of the impugned order, lock-down in the country on account of spread of Covid-19 Pandemic, misplacement of demand draft in the office of the Counsel etc., are totally vague and does not carry any weight. It may be stated here that the Hon’ble National Consumer Disputes Redressal Commission, New Delhi 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.”

7.             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.  

8.             Under above circumstances, we are of the considered opinion that the applicants/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 applicants/appellants did not act with due diligence resulting into huge delay of 367 days in filing the appeal which is beyond the prescribed period of limitation. The cause set up by the applicants/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 case, is fully applicable to the facts of the instant case. The application is, thus, liable to be dismissed.

9.             Even on merits of the case, undoubtedly, the respondent/complainant successfully completed 3 months course in Lotus Business School, Pune, however, his application for Visa to France was declined by Embassy of France, as a result whereof, he could not report in Bordeaux, Paris, France for second module study course to accomplish the Post Graduate Diploma in Wine & Spirit Business Management (PGDWSBM). In our considered opinion, as rightly observed by the District Commission, though denial of Visa by Embassy of France depends on the fate of individual, but in the case in hand, the role and veracity of institute in Bordeaux, Paris, France, played a substantial role in denial of visa to the respondent/complainant, who was not at all, in any way, at fault. The District Commission further rightly held that the denial of Visa might be due to poor accreditation of the Institute i.e. Bordeaux, Paris (France), which might affected the wisdom of Embassy in opting to deny the Visa to complainant. Thus, the District Commission rightly observed that the complainant could not be made to suffer by way of forfeiture of his substantial amount of Rs.8,97,845/-, which he had paid to the OPs by way of arranging loan from Bank and by coercive family efforts. In our considered opinion, the appellants/opposite parties are deficient in rendering service and also indulged into unfair trade practice by not refunding the amount to the respondent/complainant. In our considered opinion, the District Commission rightly allowed the complaint by  directing the opposite parties to refund the amount of Rs.8,97,845/- to the complainant with interest @12% p.a. from the date of filing of this complaint i.e. 29.1.2018 till realization, along with litigation cost of Rs.10,000/-. Thus, the order passed by the Forum being devoid of any merit deserves to be upheld and the appeal is liable to dismissed on merits too.

11.           For the reasons recorded above, appeal is dismissed both on the grounds of limitation as well as on merits with no order as to costs. The application for condonation of delay bearing MA No.748 of 2020 stands dismissed. Miscellaneous Application No.749 of 2020 seeking stay of the impugned order also stands dismissed having become infructuous.

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

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

Pronounced.

08.12.2020.

 [JUSTICE RAJ SHEKHAR ATTRI]

PRESIDENT

 

 

(PADMA PANDEY)

MEMBER

 

 

(RAJESH  K.  ARYA)

MEMBER

 

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