Haryana

StateCommission

A/555/2016

HARYANA OFFICERS COOPERATIV G.H.SOCIETY - Complainant(s)

Versus

N H CONSTRUCTION PVT.LTD. - Opp.Party(s)

RAJNEESH MALHOTRA

25 May 2017

ORDER

gSTATE CONSUMER DISPUTES REDRESSAL COMMISSION, HARYANA, PANCHKULA.

 

                                                First Appeal No.555 of 2016

                                                          Date of Institution: 17.06.2016                         Date of Decision: 25.05.2017

 

Haryana Officers Cooperative Group Housing Soceity Ltd., GH-2, Shikhar Apartments, Mansa Devi Complex, Sector-5, Panchkula through its Secretary Col. S.P.Puri (Retd.)

…..Appellant

                                      VERSUS

1.      M/s N.H. Constructions Pvt. Ltd. Through its Proprietor Mr.Nitin, H.No.1704, Sector-21, Panchkula.

2.      Sunny In charge M/s N.H. Constructions Pvt. Ltd. Through its Proprietor Mr.Nitin, H.No.1704, Sector-21, Panchkula.

          …..Respondents

 

CORAM:             Mr. R.K.Bishnoi, Judicial Member.

                   Mrs. Urvashi Agnihotri, Member.                                   

For the parties:  Mr.Rajneesh Malhotra, Advocate counsel for the appellant.

Mr.Ashutosh Gupta. Advocate  for the respondent.

 

O R D E R

 

R.K.BISHNOI, JUDICIAL MEMBER :-

Initially appellant-complainant filed complaint against respondents-O.Ps. for completion of work otherwise to refund amount as mentioned therein, which was dismissed as withdrawn on 30.01.2012 with liberty to file fresh complaint. Thereafter  complainant filed this complaint on 29.04.2016 alongwith application for condonation of delay as provided under section 24 A of the Act.

2.      It was alleged in the application that after withdrawal of that complaint he handed over documents and complaint to Sh.Randeep Singh Dhull Advocate for the purpose of re-filing. When he contacted Mr. R.S.Dhull Advocate it was told by him that he had shifted to District courts, Kaithal and would enquire whether complaint had been filed or not. When it was checked by them it was found that complaint was not filed by Sh.R.S.Dhull Advocate. In the month of February 2016 when said advocate checked his office, file pertaining to this complaint came to his notice and thereafter this complaint was filed. The delay  of 1008 days was not intentional and the same be condoned.

3.      After hearing learned counsel for complainant, learned District Consumer Disputes Redressal Forum, Panchkula (In short “District Forum”) dismissed application and complaint was also dismissed as time barred vide impugned order dated 04.05.2016.       

4.      Feeling aggrieved therefrom, complainant has preferred this appeal.

5.      Arguments heard. File perused.

6.      Learned counsel for respondents vehemently argued that there is delay of 1008 days in filing this appeal.  There is no proper explanation about delay. So learned District forum rightly declined his request about condonation of delay. Appeal has no merits and the same be also dismissed.

7.      On the face of it, it appears that such inordinate delay it should not be condoned, but, if we go through the facts of the case and the law laid down on this point by Hon’ble Supreme Court and Hon’ble National Commission, it is a good case wherein delay can be condoned. As per complainant after withdrawal of previous complaint he handedover re-drafted complaint to an advocate for the purpose of re-filing before District Forum, Panchkula.  Before filing complaint said counsel shifted to District Kaithal and in that process he could not file complaint. File of this complaint mixed up with other cases. When he checked his office in the month of February, file came to his notice and thereafter this complaint was filed.  Averments raised by complainant to this effect are supported by an affidavit of that counsel.  Had he not filed an affidavit in support of these averments then it could  have been a different matter. Hon’ble Supreme Court has opined in Chhabi Kulavi Vs.Ganesh Chandra Mondal 2001 (1) R.C.R. (Civil) 498 and Bhawani Travels Vs.Sarabjit Kaur and others 2012 (3) R.C.R. (Civil) 130, Hon’ble Punjab and Haryana High Court in Bharat Sanchar Nigam ltd. Vs.  ICICI  Bank  Ltd.  2014  (2)  PLR 440 that party should not be penalized for the fault of counsel. Hon’ble National Commission has condoned delay of 2167 days in revision petition No.1674  and 1675 of 2012 Meena Vs. Union of India and keshav Bansal vs union of India decided on  04.02.2014.  It is clearly laid down that if delay is on the part of the counsel and is properly explained then the same should be condoned.

8.      More so, in Collector Land Acquisition, Anantnag  and another Vs.MST Katiji and others, AIR 1987 SC 1353 it is laid down by Hon’ble Supreme Court that power to condone had been conferred in order to enable court to do substantial justice to parties by disposing of matters on merits.  It is observed that expression “sufficient cause” employed by legislature is adequately elastic to enable courts to apply the law in a meaningful manner which subserves the end of justice, which is the life-purpose for the existence of institution of courts. Hon’ble Supreme court laid down following principles while deciding such question:-

“(1)    Ordinarily a litigant does not stand to benefit by lodging an appeal late.

(2)     Refusing to condone delay can result in a meritorious matter being thrown out at the very threshold and cause of justice being defeated.  As against this when delay is condoned, the highest that can happen is that a cause would be decided on merits after hearing the parties.

(3)     ‘Every day’s delay must be explained’ does not mean that a pedantic approach should be made.  Why not every hour’s delay, every second’s delay?  The doctrine must be applied in a rational, common sense pragmatic manner.

(4)     When substantial justice and technical considerations are pitted against each other, cause of substantial justice deserves to be referred for the other (sic) to cannot claim to have vested right in injustice being done because of a non-delberate delay.

(5)     There is no presumption that delay is occasioned deliberately, or on account of culpable negligence, or on account of mala fides.  A litigant does not stand to benefit by resorting to delay.  In fact he runs a serious risk.

(6)     It must be grasped that judiciary is respected not on account of its power to legalize injustice on technical grounds because it is capable of removing injustice and is expected to do so.”

 

9.      Keeping in view all the facts and circumstances of the case, it is clear that it is a fit case for condonation of delay.  Hence impugned order dated 04.05.2016 is set aside and delay in filing complaint is condoned subject to payment of Rs.10,000/- as of costs.  Parties are directed to appear before learned District Forum, Panchkula  on   04.07.2017 for further proceedings.

 

May 25th, 2017

Mrs.Urvashi Agnihotri, Member, Addl.Bench

R.K.Bishnoi, Judicial Member Addl.Bench

S.K.