Per Mrs.Usha S. Thakare, Presiding Judicial Member
[1] The applicant/original opponent no.2, ICICI Bank Ltd. has filed revision petition bearing no.128/13 to challenge the order dated 22/04/2010 passed by the Learned District Consumer Disputes Redressal Forum, Mumbai Suburban District in Consumer Complaint No.768/2009. However, there is a delay of 1268 day in filing revision petition from the date of order. Hence, the applicant has filed application for condonation of delay.
[2] According to the applicant, loan of Rs.13 lacs was granted to the husband of the respondent no.1 on 28/11/2007 as a Home Loan. Respondent no.1 was the co-applicant to the loan. Respondent no.1 started defaulting on the payment of periodic EMIs. On 01/07/2009, account of the respondent no.1 was declared as Non Performing Asset as per SARFESI Act. Proceedings were initiated against the respondent no.1. Notice was not complied. Public Notice was also not complied. In the month of June 2013, the applicant seeking to enforce their security interest under the provisions of the SARFESI Act conducted inspection of the property which was mortgaged against the Home Loan. At that time, it was orally informed by the respondent no.1 that status-quo order was passed by the District forum on 25/05/2010 in a stay application filed in consumer complaint no.786/09. The applicant assigned the matter to its advocate who took inspection of the complaint proceedings in August 2013. At that time, it was transpired that consumer complaint no.768/09 proceeded ex-parte against the applicant vide order dated 22/04/2010. Summons-notice was not properly served on the applicant. The last notice received on 22/01/2010 does not bear signature of any authorized official from the applicant. The applicant bank has never received notice from the District Forum. Applicant has been regularly attended the matter before the District Forum. On merit, application has strong case. Hence, in the interest of justice, delay may be condoned; otherwise the applicant will suffer irreparable injury. The delay can be compensated in terms of money.
[3] Respondent no.1/original complainant opposed the application by filing detailed say. Application is proceeded ex-parte against the respondent no.2.
[4] Heard learned counsel Mrs.Aparajita Chandra for the applicant and learned counsel Mr.Bhaskar Yogi for the respondent no.1.
[5] Consumer complaint bearing no.768/09 was filed by the respondent no.1 on 14/10/2009. It was admitted on 07/11/2009 by the learned District Forum. On the same day, direction was given to issue notices to the opponents. Notices duly served to the original opponent no.1/respondent no.2 and time was granted for filing written statement. Direction was given to re-issue notice to the opponent no.2/present applicant. By order dated 22/04/2010, the original complainant has produced service proof in respect of present applicant. By order dated 22/04/2010, there was direction to proceed ex-parte against the opponent no.2/present applicant. Consumer complaint is now reached to the final stage. The complainant and original opponent no.1 have filed brief notes of written arguments. The opponent no.2/present applicant has filed revision petition in the year 2013 which was delayed by 1268 days. These facts are not seriously disputed.
[6] It is to be noted here that address of present applicant and respondent no.2 i.e. original opponent no.1 and 2 is one and the same. They have their offices in one and the same building. The respondent no.2 has filed written statement and contested the claim. The applicant took inspection of mortgaged house in the month of June 2013. According to the applicant, at that time the applicant got knowledge that the consumer complaint is proceeded ex-parte against them.
[7] It is not the case of the applicant that wrong address of the applicant was mentioned in the consumer complaint or interim application. On the contrary, it is admission on the part of the applicant that last notice was received on 21/01/2010 which was issued on the same address.
[8] Even after obtaining the certified copy of the roznama dated 22/04/2010 on 18/10/2013, the applicant has waited till 20/11/2013 for filing revision petition. The consumer complaint filed in the year 2009 is at final stage. If inordinate delay is condoned, then complainant/respondent no.1 will suffer loss. Applicant has knowledge of the proceedings as notice dated 21/01/2010 was served. It is hard to believe that unauthorized person has received notice on behalf of the applicant bank. It is urged that the respondent no.1 that the applicant and the respondent no.2 are sister concern. They are in one building.
[9] The applicant itself insisted the respondent no.1 to take insurance from the respondent no.2. It cannot be said that the applicant has no knowledge of the proceedings and ex-parte order. Particularly, when notice dated 21/01/2010 is duly served on the applicant bank.
[10] I find substance in the arguments advanced on behalf of the complainant/respondent no.1. If officers of the applicant bank were diligent, they could have received information of the proceedings and the order immediately. After receipt of notice, officials of the applicant could have made enquiry from the respondent no.2.
[11] Hon’ble Apex court in the case of Anshul Aggrawal V/s. New Okhla Industrial Development Authority, IV (2011)CPJ 63 (SC) 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 order of the Consumer Fora”.
[12] Hon’ble Apex Court in the case of Balwant Singh V/s. Jagdish Singh & ors., SLT 790 = III (2010) CLT 201 (SC), observed that -
“The party should show that besides acting bona fide, It had taken all possible steps within its power and control and had approached the Court without any unnecessary delay. The test is whether or not a cause is sufficient to see whether it could have been avoided by the party by the exercise of due care and attention.”
[13] Hon’ble Supreme Court in case of Post Master General and others v/s. Living Media India Ltd. and another - [2012] 3 Supreme Court Cases 563 has held that -
“After referring various earlier decisions, taking very lenient view in condoning the delay, particularly, on the part of the Government and Government Undertaking, this Court observed as under;
It needs no restatement at our hands that the object for fixing time-limit for litigation is based on public policy fixing a lifespan for legal remedy for the purpose of general welfare. They are meant to see that the parties do not resort to dilatory tactics but avail their legal remedies promptly. Salmond in his Jurisprudence states that the laws come to the assistance of the vigilant and not of the sleepy.”
It is also observed in this judgment that -
“In our view, it is the right time to inform all the government bodies, their agencies and instrumentalities that unless they have reasonable and acceptable explanation for the delay and there was bonafied effort, there is no need to accept the usual explanation that the file was kept pending for several months/years due to considerable degree of procedural red-tape in the process. The government departments are under a special obligation to ensure that they perform their duties with diligence and commitment. Condonation of delay is an exception and should not be used as an anticipated benefit for government departments. The law shelters everyone under the same light and should not be swirled for the benefit of a few.”
[14] Reason submitted by the applicant for the condonation of delay cannot be said to be a sufficient reason. The applicant failed to make out sufficient reason for condonation of delay. Hence, the following order.
ORDER
- Misc.Application for condonation of delay bearing no.MA/13/180 is hereby dismissed.
- Parties to bear their own costs.
- Consequently, the Revision Petition bearing no.A/13/128 is not entertained for consideration.
Pronounced
Dated 3rd February, 2015.
