Order No. 07 Date. 12.04.2021

            The Instant order arising out of an application dated 28.12.2020 u/s 69(2) of the Consumer Protection Act, 2019 for condonation of delay of 1835 days in filing the consumer case.

            The case of the complainant is that on 23.02.2011 he submitted an application in a Prescribed Form vide No. A/VD/05919 along with application money of Rs. 1,50,000/- and Rs. 50,000/- for allotment of a flat and car parking space in “Avidipta Housing Complex” with OP1. He was successful in the lottery and one flat was allotted in his favour. OP2 vide letter dated 22.07.2011 requested the complainant to submit requisite documents within 10 days from the date of receipt the letter, failing which no allotment of flat can be issued to the complainant in terms of clause V(b) of the terms & conditions. Complainant submitted relevant documents to the Authority on 04.08.2011. OP2 vide letter dated 11.08.2011 intimated the complainant that his gross monthly income had exceeded the limit of Rs. 40,000/- as such he is not eligible for any MIG-U flat and application money was refunded. Representation was submitted to the OP2 that he had complied with all the criteria as asked for. Despite legal notice dated 28.11.2014 the OPs rejected the claim of the complainant. Having no other alternative, complainant filed a Writ Petition being WP No. 7801 (w) of 2015 before the Ho’ble High Court against the OPs and the Hon’ble Court has been pleased to dismiss the said writ petition. Being aggrieved by the said judgment and order dated 07.01.2016 complainant preferred Mandamus Appeal being MAT No.1835 of 2016 before the Hnb’ble High Court. The Hon’ble High Court has been pleased to dismiss the FMA along with CAN 2224 of 2016. The cause of action of the present consumer complaint arose on 28.02.2011 when the OPs received legal notice ad finally on 15.01.2015 when the OPs refused to allot flat in question to the complainant. Mandamus Appeal was pending before the Hon’ble High Court for five years. On account of Covid 19 the complainant could not file the consumer complaint in due time and hence, the delay.

            The OPs opposed the delay condonation application on the ground that the consumer complaint is hopelessly barred by limitation as envisaged u/s 69(1) of the consumer protection Act, 2019 and there is also delay of 09 years in filing the complaint as cause of action arose on 11.08.2011. Complainant was successful in the lottery but on scrutiny of the documents furnished by the complainant it was found that his gross monthly family income exceeded the limit of Rs. 40,000/- and vide letter dated 11.08.2011 the OP2 rejected the prayer of the complainant for allotment of MIG Type C Flat. Complainant filed a writ petition being WP No. 7801(w) of 2015 before the Hon’ble High Court against the OPs.  Such writ petition was dismissed on 07.01.2016. Being aggrieved by the said judgment and order complainant preferred an appeal being FMA No. 1835 of 2016 along with CAN No. 2224 of 2016. The said appeal was also dismissed. Such verdict is final and the complainant has not prefer any appeal before the Hon’ble Supreme Court. The judgment and order passed in WP No. 11533 (w) of 2013 is not application in deciding the present application. Complainant fails to made out any sufficient cause for condonation of 09 years delay in filing the present consumer complaint. The OPs therefore, sought rejection of the application u/s 69(2) of the CP Act, 2019.

            We have heard the Ld. Advocate of both sides. Perused the application for condonation of delay and its written objection thereto. Also perused the cited decisions of both sides. We have given our thoughtful consideration to the contentions.

            The Ld. Advocate for the complainant relies upon the decision of the Hon’ble NCDRC in Rita Chatterjee & Anr. –Vs- Bengal Ambuja Housing Development Ltd. & (3) others, where it was held that regard being had to the nature of relief claimed in the complaint, some part of the cause of action still continued in favour of the complainants, even after taking possession of the flat in question and execution of the Deed of conveyance in respect thereof. The facts and circumstances of the present complaint are not similar in the decision cited by the Ld. Advocate for the complainant. 

            The Ld Advocate appearing for the complainant cited a unreported decision of Hon’ble High Court, Calcutta passed in WP 11533 (w) of 2013 (Bikas Sen & Anr –Vs- State of West Bengal & Others) and submitted that the Hon’ble High Court was pleased to allow the writ petition of Bikas Sen & Another and directed the respondent Bengal Peerless Housing Development Co. Ltd. to issue letter of allotment of flat to Bikas Sen & Another within a period of three weeks from the date of the communication of this order. The above cited decision is not applicable to the present case as the complainant in writ petition 7801(w) of 2015 challenging the action of the OPs in rejecting his application and refunding the amount. Such writ petition was dismissed. Being aggrieved of the said order complainant also preferred Mandamus appeal being No. FMA 1835 of 2016 before the Hon’ble High Court and the Hon’ble Court has been pleased to dismiss the FMA along with CAN 2224 of 2016. Thus, the findings of WP  No. 11533(w) of 2013 is no way help the complainant to condone the delay.

            Ld. Advocate for the complainant submitted that the Hon’ble SCDRC in complaint case No. CC/851 of 2018 (Soumitra Basu –Vs- Managing Director, Bengal Ambuja Housing Development Ltd. & Others) condoned the delay in filing the complaint subject to deposit of cost and admitted the complaint. In support of his submission Ld. Advocate for the complainant filed photocopy of order No. 8 dated 02.03.2020. We are in dark about the days of delay in the cited complaint case. Thus, we are not considered the above cited case without going through its findings.

            Per-contra, the Ld. Advocate for the OPs referred two cited decisions reported in II (2019) CPJ 545 (NC) (Eclectic Developers Pvt. Ltd. & Anr –Vs- Smita Datta Makhija & Anr) and I (2019) CPJ 347 (NC) (Samruddhi Co-operative Housing Society Ltd. –Vs- Mumbai Mahalaxmi construction Pvt. Ltd.). Ld. Advocate for the OPs submitted that the cause of action arose on 11.08.2011 and the complaint is filed only on 09.11.2020 with a delay of more than 3285 days. The ground made out in the Miscellaneous Application is not sufficient ground for condoning delay occurred.

There is no doubt that in plethora of judgments, the Hon’ble Supreme Court has held that while dealing with the Appeals and the Revisions, the approach of the Courts should be liberal. However, the Courts have put the burden on the party seeking condonation of delay in filing Appeals or Revisions to explain delay of each and every date showing sufficient cause. Hon’ble Supreme Court has explained the meaning of ‘sufficient cause’ in Basavraj & Anr. v. The Spl. Land Acquisition Officer, 2013 AIR SCW 6510. The Apex Court has held that meaning of ‘sufficient cause’ is that delay was due to bona fide on the part of the party and that party has not acted in a negligent manner or remained inactive. Hon’ble Supreme Court has, however, held that ‘sufficient cause’ means adequate and enough reasons which prevented the applicant to approach the Court within the limitation and held as under:
        “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 bona fide 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 bona fide 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 @ Bharti AIR 2011 SC 1150 L2011 AIR SCW 1233); and Maniben Devraj Shah v. Municipal Corporation of Brihan Mumbai, AIR 2012 SC

1629: (2012 AIR SCW 2412).
            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.
        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.”
       In another matter i.e. Ram Lal and Ors. v. Rewa Coalfields Limited, 1961 (SLT SOFT) 168=AIR 1962 Supreme Court 361, the Apex Court has held that condonation of delay is not a matter of right. The Courts cannot be said to have been acting non-judicially when it dismisses the application for condonation of delay where no sufficient reasons are shown. 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 Section 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.”
    The guide to determine as to what is ‘sufficient cause’, the Hon’ble Supreme Court in the case of R.B. Ramlingam v. R.B. Bhavaneshwari, I (2009) SLT 701=I (2009) CLT 188 (SC), has held 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.”
The test, as is clear, is that party who has come for condonation of delay, has to show that they have acted with reasonable diligence  but due to some inunaviodable reasons or reasons which were not in their control, the delay had occurred.Bottom of Form

            The Ld. Advocate for the OPs further submitted that once cause of action arose on 11.08.2011 when the OP2 communicated the complainant with regard to rejection of his application for allotment of MIG Type C flat and complainant received such letter bearing No. AVD-C-N 022/1822 dated 11.08.2011 on 18.08.2011. According to him, period of limitation shall start from 11.08.2011 and it cannot get extended on basis of exchange of communication between the parties.

            True is that writ petition being No. 7801 (w) of 2015 filed by the complainant before the Hon’ble High Court at Calcutta challenging the decision taken by the OP2 by its letter dated 11.08.2011 was dismissed on the ground of delay. It is also true that being aggrieved by the said judgment and order dated 07.01.2016 in
WP No. 7801(w) of 2015, the complainant preferred an appeal being No. FMA 1835 of 2016 coupled with an application for stay of the operation of the said judgment and order dated 07.01.2016. No order of stay was granted by the Hon’ble Appeal Court. Ultimately, the Hon’ble Appeal Court vide order dated 15.01.2020 confirmed the judgment and order passed in WP No. 7801 (w)  of 2015 and also rejected the stay application.

            No doubt the complainant has accepted the final verdict of the High Court, Calcutta by not filing any SLP before the Hon’ble Supreme Court against the said judgment dated 15.01.2016. It is pertinent to mention here that the Hon’ble High Court never granted any leave to the complainant to file the present consumer complaint. That the judgment and order dated 07.08.2013 passed by the Hon’ble Justice Harish Tandon in WP No. 11533(w)  of 2013 as stated by the complainant has no manner of application in deciding the instant application both on facts and merits.

In the instant case there is delay of 3285 days i.e. 09 years in filing the consumer complaint. Complainant  has failed to make out sufficient cause for not filing the complaint within two years from the date on which the cause of action has arisen.

Based on the above discussion, we find no ground to condone the delay of 3285 days. The application for condonation of delay is accordingly dismissed on contest with no orders as to costs.

Thus, MA being No. 336 of 2020 is disposed of.

As a consequence, complaint case is also dismissed as barred by limitation.