Delhi

StateCommission

FA/13/380

DEVELOPMENT ENVIORONERGY SERVICES LTD. - Complainant(s)

Versus

MATRIX CELLULAR INTERNATIONAL SERVICE (P) LTD. - Opp.Party(s)

20 Jul 2015

ORDER

IN THE STATE COMMISSION

(Constituted under section 9 of the Consumer Protection Act, 1986)

 

Date of Decision: 20.07.2015

 

First Appeal-380/2013

(Arising out of the order dated 25.11.2011 passed by the Consumer Disputes Redressal Forum-II In Distt. South in complaint case no. 422/11)

 

Development Enviroenergy Services Pvt. Ltd.

(Formaly Dalkia Energy Pvt. Ltd.)

# 819, 8^th Floor, Antriksh Bhawan

22, Kasturba Gandhi Marg,

New Delhi-110001                                                   …..Appellant

                                     

Versus

 

Matrix Cellular International Services Pvt. Ltd.

7, Khullar Farms, Mandi Road

Mehrauli, New Delhi-110030                     

                                                                        ....Respondent

 

CORAM

Justice Veena Birbal, President

Salma Noor - Member

 

 

Salma Noor, Member

 

1.             This is an appeal filed by the complainant/appellant against impugned order dated 25.11.2011 passed by the Consumer Disputes Redressal Forum-II in Distt. South wherein the complaint of the complainant was dismissed on the ground of maintainability.

2.             Aggrieved by the order of the District Forum the appellant has filed the present appeal. Appeal is accompanied by an application for condonation of delay. According to the appellant there is a delay of 16 months i.e. about 480 days in filing the present appeal.

3.             We have heard Sh. Rajesh Pandit, Counsel for the appellant and Sh. Nitin, Counsel for the respondent on the application for condonation of delay and perused the material on record.

4.             Grounds on which condonation of delay has been sought read as under:

“i.     That the accompanying appeal is being preferred against the order dated 25.11.2011, passed by the District Forum-II, New Delhi in complaint No. 422/11.

ii.      That the complainant thereafter filed the complaint before the Government appointed Arbitrator on 03.03.2012 and the reply was also filed in the claim.

iii.     That on 22.08.2012 the arbitrator passed n order that the respondent has not clarified its position vis-à-vis Telegraph Act and adjourned the matter for same and no date was given to the appellant.

iv.     That then the counsel for appellant received the letter dated 06.10.2012 that the appointment of arbitrator has been cancelled.

v.     That on 17.10.2012 the counsel for appellant wrote to the ministry to send a detail order why the appointment has been cancelled.

vi.     That the counsel for appellant on 13.03.2013 received a letter from the Ministry containing order dated 07.11.2012 which stated that the respondent is not covered under Telegraph Act hence the claim is dismissed.

vii.    That the present appeal is being filed immediately after receiving the order dated 13.03.2013.

viii.   That there is delay of 16 months spent to forum not having the jurisdiction to adjudicate the present case”.

5.             It is not the case of the appellant that he has not received the order in time or the order was ex-parte order. The case of the complainant is that after receiving the order of the District Forum he filed complaint before the Government arbitrator on 03.03.2012 and the case was adjourned to 22.08.2012. Thereafter, he got a letter from the Government arbitrator on 06.10.2012, stating that appointment of the arbitrator has been cancelled. Further, submission of the appellant is that on 13.03.2013 he received a letter from the Ministry, along with order dated 07.11.2012 wherein it was stated that the respondent is not covered under Telegraph Act. Hence, the claim is dismissed.

6.             It is apparent from the above that the appellant first tried to get relief from the Government arbitrator and when he failed to achieve some relief from there he filed appeal before this Commission. The appellant was very well aware that if he has to file the appeal against the order of the District Forum it has to be filed it within 30 days after receiving of the order. But he not to avail that remedy and pursued his case before the Government arbitrator and when he did not succeed there he filed this appeal before this Commission after exhausting 16 months. In such circumstances, the aforesaid act of the appellant in approaching a wrong forum will not be any help him to have the delay condoned.

7.             It is well settled that “sufficient cause” with regard to condonation of delay in each case, is a question of fact.

8.             In Ram Lal and Ors. Vs. Rewa Coalfields Ltd., AIR 1962 Supreme Court 361, it has been observed that:

        “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 case is not proof 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 mater 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”.

9.             Similarly, in Oriental Insurance Co. Ltd. Vs. Kailash Devi & Ors. AIR 1994 Punjab and Haryana 45, it has been laid down that;

        “There is no denying the fact that the expression sufficient cause should normally be construed liberally so as to advance substantial justice but that would be in a case where no negligence or inaction or want of bona fides is imputable to the applicant. The discretion to condone the delay is to be exercised judicially i.e. one of which is not to be swayed by sympathy or benevolence”.

10.            In “R.B. Ramlingam Vs R.B. Bhavaneshwari, 2012(1) CCC 525 (NS) : 2009(2) Scale 108”, it has been observed;

        “We hold that each and every case the Court has to examine whether delay in filing the special appeal leave petitions stands properly explained. This is the basis 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”.

11.            Supreme Court in “Anshul Aggarwal Vs. New Okhla Industrial Development Authority, 2013(1) CCC 910(NS) : IV (2011) CPJ 63 (SC)” laid down 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 Foras”.

12.            Further, Hon’ble Supreme Court in “M/s Advance Scientific Equipment Ltd. & Anr. Vs. West Bengal Pharma & Photochemical Development Corporation Ltd. (Appeal (Civil) Nos. 17068-17069/2010, decided on 9 July 2010) wherein it observed inter alia, as under;

        “……….We are further of the view that the petitioners venture of filing petition under Article 227 of the Constitution was clearly, an abuse of the process of the Court and the High Court ought not to have entertained the petition even for a single day because an effective alternative remedy was available to the petitioner under Section 23 of the Act and the orders passed by the State Commission did not suffer from lack of jurisdiction”.

13.            In view of decision in M/s Advance Scientific Equipment Ltd. (supra) High Court not to have entertained the writ petition filed by the petitioner, since petitioner had an effective alternate remedy available under the Act. Under these circumstances, the act of petitioner in approaching a wrong forum shall not entitle him to have the delay condoned.

14.            Under the circumstances, no “sufficient cause” is made out for condoning the long delay of 16 months in filing the present appeal. Accordingly, application for condonation of delay is dismissed. Consequently, the present appeal being hopelessly barred by limitation is also dismissed.

                FDR, if any, deposited by the appellant be released in his  favour as per rules.

                A copy of this order as per statutory requirement be provided to the parties free of costs.

                File be consigned to record room.

(Justice Veena Birbal)

President

 

 

                (Salma Noor)                                                                                              Member

 

 

 

 

 

Rakeeba