Per Justice Sham Sunder , President This appeal is directed against the order dated 22.6.2010, rendered by the District Consumer Disputes Redressal Forum-I, U.T. Chandigarh (hereinafter to be referred as the District Forum only), vide which the applicants/appellants/OPs were sentenced to undergo imprisonment for two years and to pay a fine of Rs.10,000/- each. In default of payment, each of them was directed to suffer further imprisonment for a period of six months. 2. The complainants (now respondents) had filed Consumer Complaint No.1102 of 2008 against the OPs(now applicants/appellants), stating therein, that they took admission in their institution for different diploma courses, after depositing admission fee of Rs.5000/-. The duration of the diploma course was 2 years and, accordingly, the total admission fee, monthly fee and examination fee deposited by each of them was Rs.48,000/-. That after completing the courses for full duration, the complainants came to know through a newspaper report, that the OPs, had cheated them, and played a fraud with them, as their institute was not recognized, and even a criminal complaint was also lodged against them (OPs), by a student. It was further stated that the acts of the OPs, amounted to deficiency, in rendering service, and indulgence into unfair trade practice. When the grievance of the complainants, was not redressed, a complaint U/s12 of the Consumer Protection Act (hereinafter to be called as the Act only) was filed. 3. The District Forum, passed the order dated 2.4.2009 in complaint Case No.1102 of 2008, as under ; “ In view of the facts and circumstances of the case placed before us, we are of the opinion that the complaint must succeed. The same is therefore, allowed. The OPs are directed to refund Rs.48,000/- each to complainants No.1 to 5, Rs.40,000/- to complainant No.6 and Rs.32,000/- to complainant No.7. Besides this, we also impose on the OPs a penalty in the sum of Rs.50,000/- for being paid as compensation to each of the complainants for causing them mental and physical harassment and for indulging in unfair trade practice, thereby spoiling two years of their valuable career. Complainants are also held entitled to costs, which are quantified at Rs.2500/-. The amount in question shall be paid by the OPs within 30 days from the receipt of the copy of the order, failing which they shall be liable to pay the same along with penal interest @ 12% per annum from the date of filing of the present complaint i.e. 16.09.2008, till realization.”, 4. The applicants/appellants/OPs did not comply with the order, resulting into filing of an execution application under Section 27 of the Act, to punish them, for not complying with the aforesaid order. Show cause notice was issued to the OPs/appellants, which was received with the report of refusal. Another opportunity was granted to the OPs, and a show cause notice was again issued to them, under registered cover, which was received back with the report of postal authorities ‘refused’. The refusal was treated as sufficient service by the District Forum, and, thereafter, neither the OPs, nor their duly authorized representative, turned up, either to make payment or to show cause, as to why, they should not be tried, in a summary manner, and punished for non-compliance or failure/omission to comply with the order dated 2.4.2009. Non-appearance of the OPs was treated as willful defiance of the order dated 2.4.2009, by them, and it was also presumed that they had nothing to say, against the passing of sentence. 5. Accordingly vide order dated 22.6.2010, referred to, in the opening para of the instant order, the OPs (now applicants/appellants) were sentenced to undergo imprisonment, as indicated above. 5A. Feeling aggrieved, the instant appeal, was filed under Section 27A of the Act by the appellants/OPs, on 10.10.2011. 6. As per the office report, there was a delay of 474 days, in filing the appeal. The office further reported that, no application for condonation of delay , had been field, by the appellants. 7. On 17.10.2011, an application for condonation of delay of 474 days in filing the appeal, was moved, stating therein, that the applicants/appellants engaged a Counsel, who was pursuing a criminal case pending against them in the District Courts, Chandigarh. It was stated that the applicants/appellants started making payment to the respondents/complainants. It was further stated that the Counsel for the applicants/appellants advised them that, at the time of final payment, the respondents/complainants shall withdraw the execution application. It was further stated that, as such, the applicants/appellants in good faith, remained under the impression, that the respondents/complainants, after receiving the entire payment shall withdraw the execution application, which was pending before the District Forum, Chandigarh. It was further stated that on 29.9.2011, the Counsel for the applicants/appellants, as well as the respondents alongwith their Counsel appeared before the District Forum, Chandigarh, to withdraw the application under Section 27 of the Act, but since it (District Forum) had already passed the order dated 22.6.2010, directing the applicants/appellants to undergo imprisonment, referred to above, it could not reverse its own order. It was further stated that the applicants/appellants were appearing before the Court, in a criminal case, between the same parties, and were making the payment to the respondents and, as such, the question of their evasion from appearance, in the District Forum did not arise at all. It was further stated that the personal appearance of applicants/appellants was not necessary, in the District Forum in the execution application. It was further stated that the absence of the applicants/appellants before the District Forum, in the application under Section 27 of the Act, was neither intentional nor deliberate. It was further stated that it was the Counsel for the applicants/appellants, who was supposed to appear, on their behalf, in those proceedings. It was further stated that, on account of the wrong advice of the Counsel, the applicants/appellants had to suffer. It was further stated the applicant/appellant No.1 was arrested on 19.9.2011 and since then, he has been in judicial custody. It was further stated that thereafter copies of the order were collected and the appeal was filed. It was further stated that in this manner, a delay of 474 days, occurred in filing the appeal. It was further stated that the marriage of the daughter of the applicant/appellant No.1 has been fixed and his presence is necessary for performing the customary ceremonies. It was further stated that the delay of 474 days in filing the appeal was neither intentional, nor deliberate. Accordingly, a prayer, for condonation of delay was made. 8. No reply was filed by the Counsel for the respondents, to this application. 9. We have heard the Counsel for the parties, on the application for condonation of delay of 474 days in filing the appeal, and have gone through the record, carefully. 10. The Counsel for the applicants/appellants, advanced arguments, in line with averments, contained in the application, for condonation of delay. 11. The Counsel for the respondents, however, submitted that the entire amount as per the order dated 2.4.2009 has been received. He did not say anything else. 12. The first question, that arises for consideration, is, as to whether, there is sufficient cause for condonation of delay of 474 days, in filing the appeal, under Section 27A of the Act, or not. It was held in Smt.Tara Wanti Vs State of Haryana through the Collector, Kurukshetra AIR1995 Punjab & Haryana 32, a case decided by a Full Bench of the Punjab & Haryana High Court, that sufficient cause, within the meaning of Section 5 of the Limitation Act, must be a cause, which is beyond the control of the party, invoking the aid of the Section, and the test to be applied, would be to see, as to whether, it was a bona-fide cause, in as much as, nothing could be considered to be bonafide, which is not done, with due care and attention. In New Bank of India Vs. M/s Marvels (India): 93 (2001) DLT 558, Delhi High Court held as under ; “No doubt the words “sufficient cause” should receive liberal construction so as to advance substantial justice. However, when it is found that the applicants were most negligent in defending the case and their non-action and want of bonafide are clearly imputable, the Court would not help such a party. After all “sufficient cause” is an elastic expression for which no hard and fast guide-lines can be given and Court has to decide on the facts of each case as to whether the defendant who has suffered ex-parte decree has been able to satisfactorily show sufficient cause for non appearance and in examining this aspect cumulative effect of all the relevant factors is to be seen.” 13. In Oriental Insurance Co. Ltd. vs. Kailash Devi & Ors. AIR 1994 Punjab and Haryana 45, it was held as under; “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 fide is imputable to the applicant. The discretion to condone the delay is to be exercised judicially i.e. one of is not to be swayed by sympathy or benevolence.” 14. Keeping in view the principle of law, laid down, in the aforesaid cases, now let us see, as to whether the applicants/appellants have been able to establish that it was, on account of the circumstances, beyond their control, that they could not file the appeal, in time. The appeal could be filed within 30 days, from the date of receipt of a copy of the order. No doubt, a proviso is engrafted to Section 27A of the Act, that if sufficient cause is shown by the applicant/appellant, for delay in filing the appeal, then the Commission, can condone the same. In the entire application, filed by the applicants/appellants, for condonation of delay, the thrust is, on the ground, that they were advised by their Counsel that after the payment was made, the execution application shall be withdrawn by the respondents/complainants. In our opinion, no Counsel shall tender such an advice, knowing fully well that if no sufficient cause, was shown for non-compliance of the order passed in the consumer complaint, than sentence upto three years could be awarded. The mere fact, that as per the averments, made by the applicants/appellants in the application, they were appearing in the criminal case, relating to the same subject matter, pending against them in a Criminal Court at Chandigarh, did not absolve them of complying with the order, which was passed in the original consumer complaint. The applicants/appellants did not bother about the order dated 2.4.2009, which was passed by the District Forum in Consumer Complaint No.1102/2008. They even, refused to accept the show cause notice, which was sent to them twice, in Criminal Complaint No.27of 2010, as a result whereof, the impugned order was passed by the District Forum. It was not that the applicants/appellants could not appear before the District Forum in Criminal Complaint No.27 of 2010, in which, the impugned order was passed, on account of the circumstances, beyond their control. They intentionally and deliberately failed to appear before the District Forum, in the said criminal Complaint No.27 of 2010. Their absence from the proceedings, was contumacious, intentional and deliberate. The delay of 474 days, which is beyond 15 times more than the normal period of filing an appeal U/s 27 A of the Act, was on account of the complete inaction and lack of bonafides, attributable to the applicants/appellants The cause set up by the applicants/appellants, in the application, for condonation of delay, could not be said to be such as was beyond their control, which prevented them from filing the appeal in time. The delay in filing the appeal was, thus, intentional and deliberate. The applicants/appellants, therefore, failed to prove any sufficient cause, for filing the appeal, after such a long delay of 474 days. Since, no sufficient cause is constituted, from the averments , made in the application, the delay of 474 days cannot be condoned. The application is, thus, liable to be dismissed. 15. The next question, that arises, for consideration, is, as to whether, even if, sufficient cause is shown, it is obligatory on the Commission to condone the delay. The answer to this question, is in the negative. In Ram Lal and Ors. Vs. Rewa Coalfields Ltd., AIR 1962 Supreme Court 361, it was held as under ; “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 cause is not proved 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 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.” 16. It is evident, from the principle of law, laid down, in Ram Lal & Ors.’s case (supra), that even 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, requires the Commission to take into consideration all the relevant factors, and it is at this stage, that diligence of the party or its bona-fides, may fall for consideration. In the instant case, original Consumer Complaint No.1102 of 2008 was decided on 2.4.2009. The compliance of the order dated 2.4.2009, passed by the District Forum, was to be made within 30 days. However, the applicants/appellants/OPs, deliberately evaded the compliance of the order. Left with no other alternative, the complainants/respondents had to file Criminal Complaint NO.27 of 2010 under Section 27 of the Act, in which, the proper procedure was adopted by the District Forum, and ultimately, the impugned order dated 22.6.2010, was passed. Even the applicants/appellants did not bother about this order, and failed to file appeal against the same, within a period of 30 days, from the receipt of a copy of the same. From the record, it is evident that non-bailable warrants were issued many times, and only after great efforts, that Mr.Des Raj Rana, applicant/appellant NO.1 was arrested on 19.9.2011. Ajay Rana, applicant/appellant NO.2 who is none else, than the son of applicant/appellant No.1, has not yet been arrested, nor he has surrendered before the District Forum. This speaks volumes of the contumacious conduct of the applicants/appellants, in disobeying the order of the District Forum with impunity. Therefore, it is abundantly proved that the conduct of the applicants/appellants right from the very beginning was not at all bonafide. The principle of law, laid down in Ram Lal & Others’ case(supra) is fully applicable to the instant case. This ground is also sufficient, not to exercise the discretion, in favour of the applicants/appellants in condoning the delay. 17. The next question, that arises for consideration, is, as to whether, the Commission can decide the appeal, on merits, especially, when it has come to the conclusion, that there is no sufficient cause for condonation of delay of 474 days in filing the same( appeal). The answer to this question, is in the negative, as provided by the Apex Court in State Bank of India Vs B.S.Agricultural Industries (I) II(2009)CPJ 29(SC), while considering the provisions of Section 24A of the Act. Although, the question before the Apex Court, was only with regard to the condonation of delay, in filing the complaint, in the first instance, beyond the period of two years, as envisaged by Section 24A of the Act, yet it (Apex Court) was pleased to observe as under ; “Section 24A of the Act, 1986 prescribes limitation period for admission of a complaint by the Consumer Fora thus: “24A. Limitation period—(1) The District Forum, the State Commission or the National Commission shall not admit a complaint unless it is filed within two years from the date on which the cause of action has arisen. (2) Notwithstanding anything contained in Sub-section (1), a complaint may be entertained after the period specified in Sub-section (1), if the complainant satisfies the District Forum, the State Commission or the National Commission, as the case may be, that he had sufficient cause for not filing the complaint within such period: Provided that no such complaint shall be entertained unless the National Commission, the State Commission or the District Forum, as the case may be, records its reasons for condoning such delay.” It would be seen from the aforesaid provision that it is peremptory in nature and requires Consumer Forum to see before it admits the complaint that it has been filed within two years from the date of accrual of cause of action. The Consumer Forum, however, for the reasons to be recorded in writing may condone the delay in filing the complaint if sufficient cause is shown. The expression, ‘shall not admit a complaint’ occurring in Section 24A is sort of a legislative command to the Consumer Forum to examine on its own whether the complaint has been filed within limitation period prescribed thereunder. As a matter of law, the Consumer Forum must deal with the complaint on merits only if the complaint has been filed within two years from the date of accrual of cause of action and if beyond the said period, the sufficient cause has been shown and delay condoned for the reasons recorded in writing. In other words, it is the duty of the Consumer Forum to take notice of Section 24A and give effect to it. If the complaint is barred by time and yet, the Consumer Forum decides the complaint on merits, the Forum would be committing an illegality and, therefore, the aggrieved party would be entitled to have such order set aside.” 18. The principle of law, laid down, by the Apex Court in State Bank of India’s case(supra), is equally applicable to the filing of an appeal U/s 27A of the Act. In case, this Commission, decides the appeal, on merits, after coming to the conclusion, that it is barred by time, it would amount to committing an illegality, in view of the principle of law, laid down in State Bank of India’s case(supra). 19. For the reasons, recorded above, the application for condonation of delay of 474 days, being devoid of merit, must fail, and the same is dismissed. Consequently, the appeal under Section 27A of the Act, is also dismissed, being barred by time, with no order as to costs. 20. Certified Copies of this order be sent to the parties, free of charge. 21. The file be consigned to the Record Room.
| | HON'BLE MRS. NEENA SANDHU, MEMBER | HON'BLE MR. JUSTICE SHAM SUNDER, PRESIDENT | , | |
