Challenge in these proceedings purportedly under Section 21(b) of the Consumer Protection Act, 1986 is to the order dated 23.09.2010 passed by the State Consumer Disputes Redressal Commission in the First Appeal No. 2010/70. By the impugned order, the State Commission dismissed the application for condonation of delay in filing the appeal and consequently the appeal also. The appeal before the State Commission was filed after 64 days of delay against the order dated 14.10.2009 passed by the District Consumer Forum-II (South), Qutub Institutional Area, New Delhi by which order the said forum had allowed the complaint of the complainant respondent with a direction to the BSES Rajdhani Pvt. Ltd. to refund a sum of Rs.1,22,624.44 with the stipulation that the amount shall be refunded within one month from the receipt of the order, failing which it will carry interest @ 10% p.a. That apart, the District Forum also awarded a sum of Rs.30,000/- in favour of the complainant while ordering the refund of the said amount. It would appear that the reasons given by the appellant – BSES Rajdhani Power Ltd. in their application for condonation of delay did not find favour and were not considered as sufficient cause by the State Commission and consequently, it declined to exercise its judicial discretion in favour of the appellant. 2. We have heard Mr. Harsh Vardhan, learned counsel for the petitioner and the caveator, respondent / complainant in person at sufficient length and have considered their submissions. It may be noticed that the order which was challenged in appeal by the BSES Rajdhani Power Ltd. was passed after remand of the matter by the State Commission in an earlier appeal filed before it and even there change in the consumer forum was required for certain reasons which we do not wish to dwell here. Before the remand of the matter, the only relief granted to the complainant was to give a credit balance of Rs.22,829/- in the account of the complainant but after the remand of the matter there has been a drastic upgradation of the said relief which prompted the BSES to file the appeal before the State Commission. The appeal has not received consideration of the State Commission on merits and was thrown away simply on the ground that it was barred by limitation of 64 days. 3. In our view, having regard to the entirety of the facts & circumstances and the gamout of controversy, the State Commission ought to have exercised its judicial discretion in favour of the appellant rather than against it, which could of course be subject to certain terms. The order passed by the State Commission does not appear to be in consonance with the legal position as settled by a catena of decisions of the Supreme Court and various High Courts over the period. In our view, the impugned order is legally unsustainable and is hereby set aside. The delay in filing the appeal is condoned, however, subject to payment of cost of Rs.5,000/- to the respondent / complainant. 4. In the result, the revision petition is allowed and the impugned order dated 23.09.2010 is hereby set aside and the appeal after condonation of delay is remanded back to the State Commission for deciding the same on merits. Parties are directed to appear before the State Commission on 07.03.2011 to receive further directions. No order as to costs in these proceedings. |
