Haryana

StateCommission

A/731/2015

MALWA AUTO SALES PVT.LTD. - Complainant(s)

Versus

PANKAJ JAIN - Opp.Party(s)

S.R.BANSAL

18 Sep 2015

ORDER

 

STATE CONSUMER DISPUTES REDRESSAL COMMISSION,

HARYANA PANCHKULA

                  

                                                First appeal No.731 of 2015

Date of the Institution: 04.09.2015

Date of Decision: 18.09.2015

 

M/s Malwa Motors Sales Pvt. Ltd. 31, K.M. Stone, NH-1, Kundli through General manager Mr.Sunil Kumar Bhatt.

…..Appellant

Versus

 

1.      Pankaj Jain S/o Sh.Balwant Rai Jain, R/o H.No.677/5, Billawali Gali, Bara Jain Mandir, Sonepat (Haryana).

2.      General Motors India Pvt. Ltd. Chandrapura Industrial Estates, Halol-389350, District Panchmehal,Gujarat.

                                                                             .….Respondents

 

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

                    Mrs. Urvashi Agnihotri, Member

 

Present:-    Mr.S.R.Bansal, Advocate counsel for the appellant.

 

O R D E R

R.K.Bishnoi, JUDICIAL MEMBER:

 

After failing before Hon’ble National Commission Opposite Party (O.P.) No.2 is knocking the door of this Commission.  Appellant filed revision No.1877 of 2015 before the Hon’ble National commission against order dated  18.02.2015 passed by this Commission, which was dismissed on 02.09.2015 with following observation:-

“We have perused the order rendered by the for a below. The case of the complainant is supported by the evidence and affidavit of Sh.Naresh Kumar, Head Denter and Painter. The said witness appears to be guileless.  No reasons were given for discarding his evidence. The State Commission rightly held that the manufacturer is not liable for the above said lapse. There is no nexus with the repainted car and the manufacturer.  For all these reasons, the revision petition is without merit and the same is, therefore, dismissed, in limine.  No order as to costs.”

2.      Alongwith the appeal appellant has filed an application for condonation of delay of 716 days.  It is alleged in the application that the case was handed over to Mr.Hooda Advocate at Sonepat to appear before the District forum Sonepat on 31.01.2013 and fee was also paid to him. He asked it not to appear on the date and he would inform about development. Certified copy of order dated 19.08.2013 passed by District Forum was received in the office at Kundli and thereafter notice of appeal No.296 of 2014 (in which order dated 18.02.2015 was passed by this Commission) was received.  Applicant came to know about the entire proceedings on 14.07.2015 when bailable warrants were received in the office of applicant for appearance on 27.07.2015. Certified copy of order dated 19.08.2013 was handed over to Sh. Rajinder Singh Malik, Advocate of Punjab and Haryana High Court, Chandigarh for filing appeal alogwith the appeal filed by General Motors i.e. opposite party No.2.  It was told by that advocate that appeal filed by it and  appeal field by General Motors were  pending for 25.07.2015, but, bailable warrants issued by District Forum were received on 27.07.2015.  Thereafter Corporate advisor Mr.S.R. Bansal, Advocate appearing in this appeal, was contacted.  Mr. Gautam Advisor of Malwa Automobiles was deputed to contact Mr. Rajinder Singh Malik On 15.07.2015 he informed that appeal was disposed of vide order dated 18.02.2015 and same was sent to their corporate Advisor-cum-Advocate S.R.Bansal on 18.07.2015. Mr. Bansal drafted the appeal and got signed on 21.07.2015 and same was filed on 22.07.2015.  The revision petition was disposed of with the observation that the applicant should have filed appeal against the order and accordingly copy of the same was obtained by counsel for the respondent. Thereafter this appeal was filed.  In this process delay of 716 days occurred which is not intentional and may kindly be condoned.

3.      Arguments heard.  File perused.

4.      Learned counsel for the appellant vehemently argued that the delay of 716 days was not intentional on the part of appellant.  Initially it appointed Mr.Hooda Advocate  to contest the complaint, but, he did not appear  and was proceeded ex parte. Mr.Rajinder Singh Malik, Advocate was engaged to file appeal alongwith General Motors and to appear in appeal No.296 of 2014 filed before this Commission.  Neither he preferred an appeal against order dated  19.08.2013 passed by District Forum, Sonepat nor he appeared before this Commission and sent proxy counsel as mentioned in order.   After obtaining copy of order dated 18.02.2015, aforesaid revision was filed, but, was dismissed on the ground that appeal should have been filed as mentioned above. Thereafter this appeal is filed. Approach should be liberal while condoning the delay.

5.      No doubt approach should have liberal, but, it is to be seen whether there was any bonafide on the part of the appellant or not. In the present case appeal is preferred against the order dated  19.08.2013 which has been upheld  by Hon’ble National commission vide order dated 02.09.2015. The averments of appellant about delay were also dealt with by Hon’ble National Commission while disposing of revision petition No.1877 of 2015 and relevant portion is as under:-

“6.     In the revision petition, it is stated that appeal in respect of M/s Malwa Motors Sales Pvt. Ltd.,-OP-1  was not filed due to carelessness of their Advocate, namely, Mr.Rajinder Singh Malik, Punjab and Haryana High court, Chandigarh.  It is further submitted that he did not appear  at the time of arguments before the State Commission, but sent his proxy, Mr.Ajay Phatak as is apparent from the certified copy of the  impugned order itself. The certified copy of the impugned order was collected by the Advocate and  he remained silent till 14.07.2015.  The petitioner came to know about the execution proceedings when the bailable warrants were issued against him, on 27.07.2015, by the District forum, sonepat.  Again, Sh.Rajinder singh Malik, Sent the copy of the order through Manager, Gautam, on 15.07.2015.

7.      Again, filing of this revision petition was delayed by 24 days. The application for condonation of delay has been moved. It is explained that no copy of notice was received from the District Forum, Sonepat, but certified copy of the order was received later on, and it remained in possession of the earlier Manager, who was dealing with the said complaint and he remained silent and did not bother regarding the order passed by the higher authorites. It is further explained that the Manager of the petitioner, immediately contacted their Corporate Adviser, mr. S.R. Bansal, Advocate, Ambala, who is taking care of all the legal matters.

8.      The case of the petitioner is at ‘sixes and sevens’. This is unfortunate that proxy counsel appeared instead of main counsel. This is a kind of betrayal with one’s client. The litigants believe that the main counsel will appear and argue the case but the main counsel will appear and argue the case but the main counsel seldom appears. However, , there lies no rub in making a complaint against the Advocate before the Bar Council of India, regarding the conduct of the main counsel.

9.      We have perused the original file received from the District Forum. The notice was served upon the petitioner. The postal receipts are available on the record. Counsel for the petitioner did not pick up a conflict with its service. He argued that the previous Manager did not inform the petitioner. This is a vague and evasive plea which leads us nowhere. The name of previous Manager, his/her address, etc., did not see the light of the day. Such like stories can be created at any time.

10.    Although, the petitioner had got order from the State Commission on 14.7.2015, yet, it waited for Bailable Warrants to be issued, till 25.7.2015. Again the filing of the revision petition was delayed by 24 days. We see no illegality or irregularity against the ex-parte order passed against the petitioner. No sufficient ground has been given for setting aside the ex-parte decree. No appeal was filed before the State  Commission for setting aside the ex-parte decree.”

From the perusal of this order it is clear that plea of the appellant about condonation of delay was not accepted by Hon’ble National Commission and the same cannot be accepted by this Commission also. Particularly when appellant was participating in the previous appeal No.296 of 2014 filed by General Motors.

11.       A period of 30 days has been provided for filing an appeal against the order of the District Forum. The proviso therein permits the State Commission to entertain an appeal after the expiry of the period of 30 days if it is satisfied that there is “Sufficient cause” for not filing the appeal within the prescribed period. The expression of sufficient cause has not been defined in the Act rightly so, because it would vary from facts and circumstances of each case.

12.       The Hon’ble Supreme Court in case Bikram Dass Vs. Financial Commissioner and others, AIR, 1977 Supreme Court 1221 has held that;

“Section 5 of the Limitation Act is a hard task-master and judicial interpretation has encased it within a narrow compass. A large measure of case-law has grown around S.5, its highlights being that one ought not easily to take away a right which has accrued to a party by lapse of time and that therefore a litigant who is not vigilant about his rights must explain every days delay.”

The Hon’ble National Commission in case Government of U.T. Electricity Department & Others versus Ram Lubhai, II(2006) CPJ 104 has held that:-

“Consumer Protection Act, 1986 – Section 15 –Appeal –Maintainability – Limitation –Condonation of delay– Resjudicata –Appeal filed after a delay of 44 days –Plea of procedural delay in getting approval for filing appeal – Appeal filed by complainant against order of District Forum decided and copy of order dispatched to parties prior to filing of appeal by opposite party –Appeal and application for condonation of delay dismissed –Matter once finally concluded by any Court cannot be reopened by same Court.”

 

          In R.B. Ramlingam Vs. R.B. Bhavaneshwari 2009 (2) Scale 108, it has   been observed:

         “We hold that in each and every case the Court has to examine whether delay in filing the special appeal leave petitions stands properly explained. This is the basic test which needs to be applied. The true guide is whether the petitioner has acted with reasonable diligence in the prosecution of his appeal/petition.”

      In Ram Lal and Ors.  Vs.  Rewa Coalfields  Ltd., AIR  1962 Supreme Court 361, it has been observed;

“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.”

    

    Hon’ble Supreme Court in  Oriental Aroma Chemical Industries Ltd. Vs. Gujarat Industrial Development Corporation reported in (2010) 5 SCC 459 held as under;

“We have considered   the respective    submissions.  The law of limitation is founded on public policy. The   legislature does not prescribe limitation with the object of destroying the rights of the parties but to ensure that   they    do not resort to dilatory tactics and seek remedy without delay. The idea is that every legal remedy must be kept alive for a period fixed by the legislature. To put it differently, the law of limitation prescribes a period within which legal remedy can be availed for redress of the legal injury. At the same   time, the courts are bestowed with the power to condone the delay, if sufficient cause is shown for not availing the remedy within the stipulated time.”       

    In (2012) 3 SCC 563 Post Master General & Ors. Vs. Living Media India Ltd. and Anr. Hon’ble Apex Court has not condoned delay in filing appeal even by Government department and observed that condonation of delay is an exception and should not be used as an anticipated benefit for the Government departments.

    In 2012 (2) CPC 3 (SC) – Anshul Aggarwal Vs. New Okhla Industrial Development Authority, Hon’ble Apex Court observed as under:-

“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 orders of the Consumer Foras”.

13.    Taking into consideration all the facts, the pleas raised by appellant in the application for condonation of delay and the settled principle of law,  it is not a fit case to condone the delay of 716 days in filing appeal. Hence, the application filed for condonation of delay is dismissed.

14     Resultantly, this appeal is hereby dismissed as time barred. Hon’ble Supreme Court expressed in SBI Vs. M/s B.S.Agriculture Industries (1) reported in 2009 (2) CPJ  I, that  when the matter is time barred there is no necessity to go into the merits of the case.

15     The statutory amount of Rs.25,000  deposited at the time of filing the appeal be refunded to the appellant against proper receipt and identification in accordance with rules, after the expiry of period of appeal/revision if any.

 

September 18th, 2015

Mrs.Urvashi Agnihotri, Member, Addl.Bench

R.K.Bishnoi, Judicial Member Addl.Bench

 

S.K.