APPEARED AT THE TIME OF ARGUMENTS

ORDER

C.VISWANATH

1. The present Revision Petition is filed by the Petitioner under Section 21(b) of the Consumer Protection Act, 1986 against Order passed by the State Consumer Disputes Redressal Commission, Delhi (hereinafter referred to as the “State Commission”) in Appeal No. 540/2017 dated 07.05.2018.

2. In the Complaint, the Respondent/Complainant stated that on 24.06.2015, he purchased food items from the Petitioner against the card issued by My Square, Versatile Food Courts Pvt. Ltd. The Complainant further stated that he was surprised to see that the Petitioner charged Rs.50/- for one Pepsi Can, whereas MRP on the can was Rs.27/-. He informed about the same to the officials of My Square, Versatile Food Courts Pvt. Ltd. and the Petitioner and requested to refund the excess amount received, but they flatly refused saying that they have charged the amount as per the policy of their company. Further, the Respondent requested the officials to provide the Complaint book.They refused to provide the same saying that they do not have any such book. Legal notice dated 20.07.2015 was issued by the Respondent which was replied by the Opposite Parties on the basis of false averments. Hence, the present Complaint was filed.

    

3. The Complaint was contested by all the Opposite Parties mentioned in the Complaint case. M/s. Select Infrastructure Pvt. Ltd. contended that he allotted the licenced space to My Square, Versatile Food Courts Pvt. Ltd. and permitted it to operate and manage a food court . They were neither involved nor had any control on the business of the Petitioner. The basic allegations were against the Petitioner and no role has been assigned to them in the Complaint.

    

4. My Square Versatile Food Courts contended that they only issued prepaid cards to the customers for purchase of food items in the food court. It did not have any control over the prices charged by various occupiers of the food court in respect of the food items sold by them. The prices were determined by the said occupiers and My Square, Versatile Food Courts Pvt. Ltd. did not have any role to play in the same.

    

5. In the written statement, the Petitioner stated that the Respondent had wrongly alleged that the MRP of the Pepsi can bought by him on 24.06.2015 at the Quick Service Restaurant of the Petitioner was Rs.27/-. Pepsi cans in general were available at either Rs.25/- or at Rs.60/- MRP (Inclusive of taxes) and at this cost only the Pepsi can was sold to the Respondent also. It was further stated that the invoice dated 08.05.2015 issued by M/s S.K. Trading Company, Delhi showed the Pepsi cans were purchased at Rs.60/- MRP since April 2015. Even their menu card showed that the cost of a Pepsi can of 250 ml. as Rs.60/- MRP. The Respondent being an advocate had taken undue advantage by presenting a claim for a sum of Rs.50/- alongwith interest @24% p.a. for a Pepsi Can of Rs.50/-. This claim was absolutely exaggerated and disproportionate to the alleged loss suffered by the Respondent.

    

6. The District Forum, vide order dated 07.05.2017, held that the Respondent failed to substantiate the allegations in the Complaint. There was no deficiency on the part of Petitioner. Hence, the Complaint was dismissed. There was no order as to cost.

    

7. Aggrieved by the order of the District Forum, the Respondent filed an Appeal before the State Commission. The State Commission, vide order dated 07.05.2018, stated that notice issued to Petitioner was received unserved with the report “refused”. It was presumed that the Petitioner was duly served. Despite service none had appeared on behalf of Petitioner, hence, he was proceeded ex-parte.

    

8. Aggrieved by the order passed by the State Commission, the Petitioner filed the present Revision Petition before this Commission.

    

9. We have heard the Learned Counsel for the Petitioner and also carefully perused the record.

    

10. As per the registry, there is a delay of 158 days in filing the present Petition.The petitioner filed I.A. NO. 617 OF 2019 for condoning the delay of 153 days on the ground that Petitioner was not aware of the order passed by the State Commission till 04.12.2018. In fact, the Petitioner was not even aware about the pendency of any such Appeal No. 540/2017 until November, 2018. Petitioner appeared before the State Commission on 04.12.2018, whereby he was informed that he was proceeded ex-parte due to refusal of court notice. Thereafter, unfortunately, mother of the Director of M/s Eatbud Food Private Limited expired, because of which necessary instructions could not be provided to the counsel on behalf of the Petitioner, thus causing further delay. On 24.12.2018, an attempt was made by the counsel for the Petitioner to inspect the court file so as to ascertain the name of the employee who, allegedly refused service of summons on behalf of the Petitioner, for the purpose of filing of the present Revision Petition.However, inspection could not be completed due to paucity of staff due to approaching winter break. Inspection was done finally on 02.01.2019. It was found that the envelope containing the court notice, which was bearing the endorsement “refused” did not bear any name or signature as to who had refused the said service.

     

11. In F.A. No. A/540/2017, vide order dated 07.05.2018, Notice issued to the Petitioner was returned unserved with the report “refused”.In view of refusal of notice it was presumed that Petitioner was duly served. Despite service none appeared on behalf of Petitioner, Hence, the Petitioner was proceeded ex-parte.

     

12. It is settled proposition of law that condonation of delay is not a matter of right and the applicant has to set out the case showing sufficient reasons for not being able to come to the Court / Commissions within the stipulated period of limitation.   The Hon’ble Supreme Court in the matter of Ram Lal and Ors. Vs. Rewa Coalfields Limited, AIR 1962 Supreme Court 361 has held as  under:

    “It is, however, necessary to emphasise 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 condition precedent for the exercise of the discretionary jurisdiction vested in the Court by Section 5. If sufficient cause is not proved nothing further has to be done; the application for condoning delay 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.”

     

13. The burden is put upon the applicant to show sufficient causes for the delay.  The expression ‘sufficient cause’ has been discussed and defined by the Hon’ble Supreme Court in the case of Basawaraj & Anr. Vs. The Spl. Land Acquisition Officer, 2013 AIR SCW 6510, 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 no 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 for the reason that whenever he court exercises 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 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).

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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 flowing 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.

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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 cause” 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”. 

1. The Hon’ble Supreme Court has clearly held that party who has not acted diligently or remain inactive is not entitled for condonation of delay. The Hon’ble Supreme Court in the case of “R. B. Ramlingam vs. R. B. Bhavaneshwari, I (2009) CLT 188 (SC)”

"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.”

1. Also in the case of “Anshul Aggarwal Vs. New Okhla Industrial Development Authority (2011) 14 SCC 578,  the Hon’ble Supreme Court has warned the Commissions to keep in mind while dealing with such applications the special nature of the Consumer Protection Act.  The Hon’ble Supreme Court 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 foras."

1. In the condonation application, the Petitioner has himself admitted there is a delay of 153 days in filing the Present Revision Petition. The contentions in the application seeking condonation of delay are not sufficient as it is nowhere stated that this delay had occurred due to the reasons which were beyond the control of the petitioner or that the petitioner had acted with due diligence.  The main reason submitted by the Petitioner for such delay was that the mother of Director of M/s Eatbud Food Private limited expired, because of which necessary instructions could not be provided to the counsel on behalf of the Petitioner thus causing further delay. The aforesaid contention was vaguely submitted as no date of the incident was mentioned nor any document was placed on record to prove the said contention.

    

2. We, therefore, find no ground to condone the delay.  The application for condonation of delay is accordingly dismissed. As a consequence, Revision Petition is also dismissed in limine being barred by limitation.