Delhi

StateCommission

A/317/2016

BSES RAJDHANI POWER LTD. - Complainant(s)

Versus

N.K. SHARMA - Opp.Party(s)

30 Mar 2017

ORDER

IN THE STATE COMMISSION : DELHI

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

                                                     Date of Arguments: 30.03.2017

     Date of Decision:     11.04.2017

First Appeal No. 317/2016

In the matter of:

                                               

BSES RAJDHANI POWER LTD.

Having its registered office at BSES

Bhawan, Nehru Place, New Delhi-110019 and

Having its branch offices at different places in

Delhi including at corporate, Legal and Enforcement

Cell near Andrews Ganj.                                                                     …….Appellant

.        

                                                Versus

 

 

          N.K.Sharma

          R/o C-43, Shalimar Apartment,

          Masjid Moth, New Delhi- 110 049.                                …..Respondent            

CORAM

 

Hon’ble Sh. O.P.Gupta, Member(Judicial)

Hon’ble Sh. Anil Srivastava, Member

1.     Whether reporters of local newspaper be allowed to see the judgment?  Yes

2.      To be referred to the reporter or not? Yes

SHRI O.P.GUPTA

JUDGEMENT

            The present appeal impugnes order dated 29.02.16 passed by district forum in CC No. 330/2009 by which the appellant was directed to refund Rs. 36,859/- with interest @ 9% per annum from Feb., 2001 and to pay Rs. 5000/- towards compensation appeal is impugned order dated 29.02.16 passed by district forum in CC No. 330/2009 by which the appellant was directed to refund Rs. 36,859/- with interest @ 9% per annum from Feb., 2001 and to pay Rs. 5000/- towards compensation Rs. 3,000/- towards litigation expenses.

2.        Before entering into the merits of the case it may be mentioned that appeal was filed on 10.08.16 and is barred by limitation.  The appellant has moved an application for condonation of delay on the ground that the appellant received certified copy of the order on 05.03.16, it was seeking advice from its in house legal department so as to challenge the order before State Commission.  The appeal but was wrongly advised with the defense taken before the District Forum was not at par with the available records.  Respondent had concealed some vital facts from the district forum and so the appellant has moved an application for additional documents in appeal.  The case was as old as of 2001, so it took considerable  time which resulted in delay.  According to the appellant delay is of  42 days.  It had relied upon decision of Hon’ble Apex Court  in State of Karnataka vs. Y.Maideen Kunhi 2009 (IV) Scale 677 where it has been held that expression sufficient in section 5 Limitation Act must receive a liberal consideration so as to advance substantial justice and generally delays in filing appeal are required to be condoned in the interest of justice where no gross negligence or deliberate inaction or lack of bonafide is imputable to the party seeking condonation of delay.

3.        The application has been contested tooth and nail by the respondent by filing reply. According to him each day’s delay must be explained.

4.        We have gone through the material on record and heard the arguments on application for condonation of delay.  Recently Hon’ble Supreme Court in Civil Appeal No. 10289of 2014b titled as ATS Govinda Rajane vs. Chief Manager State Bank of India decided on 14.11.14 held that delay should be condoned liberally. Applying the said law the delay in filing the appeal in the present case is condoned.

5.        On merits the facts are peculiar.  The respondent deposited Rs. 21,199/- vide receipt No. 205309 dated 23.01.2001 with appellant for permanent connection.  In April 2002 respondent was directed to resubmit the application with affidavit and he did needful.

6.        The appellant contested the case by taking the plea that complaint as barred by limitation.  The area was not electrified and hence appellant could not provide electricity connection. The district forum did not agree with plea of limitation because documents for refund of the amount were deposited on 06.09.08 and 18.02.09 as desired by appellant.

7.        Now during the pendency of the appeal it revealed that appellant has refunded Rs. 20,926/- after deducting development charges.            So the controversy remains regarding Rs. 15933/- deducted on account of development charges.  The counsel for the respondent submitted that development charges can be recovered only when the appellant provides electricity connection. 

8.        On the other hand the counsel for the appellant submitted that appellant is prepared to provide permanent electricity connection.  The respondent is not interested in taking the same.  Even if the same is accepted, appellant cannot compel anyone to obtain the permanent electricity connection.  It can recover the development charges only when respondent applies for permanent electricity connection.

9.        As regards interest and litigation cost it may be observed that point is quite ticklish and capable of two interpretation, so appellant cannot be dubbed with malafide or intentional delay in refunding the amount.  Accordingly the amount of interest and litigation expenses are liable to be setaside.

10.      To sum up the appeal is accepted in part, impugned order is modified to the effect that appellant will refund Rs. 15,933/- in all to the respondent within 45 days.

            Copy of the order be sent to both the parties free of cost.

            One copy of the order be sent to district forum for information.

 

(ANIL SRIVASTAVA)                                                    (O.P.GUPTA)

MEMBER                                                                      MEMBER(JUDICIAL)