Per Justice Sham Sunder , President This appeal is directed against the order dated 4.03.2011, rendered by the District Consumer Disputes Redressal Forum-I, U.T. Chandigarh (hereinafter to be referred as the District Forum only), vide which it accepted the complaint of the complainant (now respondent) and directed the opposite party ( now appellant) as under ; “to refund to the complainant Rs.5,65,445/- with interest @12% p.a. since the respective dates of its deposit with the Opposite Party alongwith compensation of Rs.10,000/- and litigation costs of Rs.5,000/-. The order shall be fully complied with by the Opposite Party within 30 days from the date of receipt of copy of this order, failing which, the Opposite Party shall be liable to pay the interest @18% p.a. instead of 12% p.a. on the above said amount Rs.5,65,445/- from the respective dates of its deposit, till the payment is actually made to the complainant, besides payment of compensation and litigation costs.” 2. An application was submitted by the complainant for allotment of a unit in the project of the Opposite Party in Sector 108, in ‘The Terraces’ in Mohali, alongwith a cheque in the sum of Rs.2 lacs, which was duly accepted. The payment plan, was time related. However, the project got delayed due to undue delay, in obtaining the requisite sanctions, and approvals. The Opposite Party issued provisional letter of allotment dated 13.4.2009 . The complainant was asked to deposit Rs.3,65,445/-, being 15% of the sale price of the flat, which was duly paid. Thereafter, the Opposite Party vide letter dated 22.6.2009 made further demand of Rs.3,01,570/-. The Opposite Party also unilaterally changed the payment plan to construction linked and informed the complainant vide letter dated 10.7.2009. It was stated that the Opposite Party vide letter dated 24.7.2009 demanded a sum of Rs.3,01,570/-. It was further stated that the application for loan, submitted by the complainant to the bank, was rejected, on the ground, that he had only been issued provisional allotment letter, and there was no sign of construction at the spot. It was further stated that feeling cheated, the complainant wrote letter dated 8.10.2009 cancelling the booking, and sought refund of the amount deposited. It was further stated that the Opposite Party delayed the matter, on one pretext or the other, despite service of legal notice dated 25.2.2010. It was further stated that the acts of the Opposite Party, in not refunding the amount, aforesaid, deposited by the complainant, amounted to deficiency, in rendering service, and indulgence into unfair trade practice. When the grievance of the complainant, was not redressed, left with no alternative, a complaint under Section 12 of the Consumer Protection Act, 1986(hereinafter to be called as the Act only) was filed by him. 3. In reply, the opposite party, admitted that the complainant applied for a residential floor, in the project of the Opposite Party. It was denied that the project got delayed. It was stated that the payment plan was changed from time linked to construction linked, to facilitate the complainant to make payment. It was further stated that it was for the complainant to opt for the plan. It was further stated that the complainant wrote letter dated 8.10.2009 for cancelling the booking and sought refund. It was also admitted that a provisional allotment letter was issued to the complainant. It was further stated that ‘Independent Floor Buyer’s Agreement’ dated 9.7.2009 was executed between the parties, according to which, possession of the independent floor, was to be delivered within 36 months, from the date of signing of the same. It was further stated that, as per the terms and conditions of the advance registration application form for allotment, submitted by the complainant, once the refund of initial deposit was sought, after acceptance of the application/registration, the amount was to be refunded after forfeiting 20% of the registration amount. It was further stated that the complainant was only entitled to the refund of amount, after deduction of 20% of the registration amount. It was denied that the Opposite Party was deficient, in rendering service, or indulged into unfair trade practice. The remaining averments, were denied, being wrong. 4. The parties led evidence, in support of their case. 5. After hearing the Counsel for the parties, and, on going through the evidence and record of the case, the District Forum passed the order, in the manner, referred to, in the opening para of the instant order. 6. Feeling aggrieved, the instant appeal, was filed by the appellant/ opposite party. 7. Alongwith the appeal, an application for condonation of delay of 229 days, in filing the same (appeal), was filed. It was stated, in the application, that a certified copy of the order was despatched on 14.3.2011. The applicant/appellant could only file appeal on or before 16.4.2011, but the same could not be filed, as the employee, who received copy of the order, did not inform the concerned officer/official. It was further stated that it was only after receiving notice of the execution application, that the applicant/appellant, came to know, about the same. Thereafter, copy of the order, as well as the complete file, was traced and sent to the Head Office for getting approval, for filing the appeal. It was further stated that, in the process of decision making, delay of 229 days occurred. It was further stated that the delay was neither willful, nor intentional. It was further stated that , as such, there was sufficient cause for condonation of delay of 229 days. 8. We have heard the Counsel for the applicant/appellant, and have gone through the record, carefully. 9. The first question, that arises for consideration, is, as to whether, there is sufficient cause for condonation of delay of 229 days, in filing the appeal under Section 15 of the Act. It was held inSmt.Tara Wanti Vs State of Haryana through the Collector, Kurukshetra AIR 1995 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 bonafides 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.” 10. 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 bonafides 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.” 11. Keeping in view the principle of law, laid down, in the aforesaid cases, it is to be seen, as to whether, the applicant/appellant has been able to establish that it was, on account of the circumstances, beyond its control, that it 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. The grounds taken up by the applicant/appellant, in the application, for condonation of delay are that, the employee who had received certified copy of the order did not inform the concerned officer/official, and it only came to know of the order after receiving notice of the execution application. Thereafter, the papers were sent to its Head Office for approval and, in that process, delay of 229 days occurred. The delay of 229 days, which is beyond 7 times, more than the normal period of filing an appeal U/s 15 of the Act, was on account of the complete inaction and lack of bonafides, attributable to the applicant/appellant. The cause, set up by the applicant/appellant, in the application, for condonation of delay, could not be said to be such, as was beyond its control, which prevented it, from filing the appeal in time. The delay, in filing the appeal was, thus, intentional and deliberate. The applicant/appellant, therefore, failed to prove any sufficient cause, in filing the appeal, after such a long delay of 229 days . Since, no sufficient cause is constituted, from the averments , contained in the application, the delay of 229 days cannot be condoned. The application is, thus, liable to be dismissed. 12. 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.” 13. 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, the opposite party was represented by their duly authorized Counsel, in the proceedings, before the District Forum. Even he had argued the case, on behalf of the opposite party. It was obligatory on the part of the opposite party to enquire about the final outcome of the complaint. It was, thus, a case of complete lack of bonafides and inaction, on the part of OP. The principle of law, laid down in Ram Lal & Others’ case(supra) is fully applicable to the instant case. This is, therefore, not a fit case, in which this Commission, should exercise its discretion, in favour of the applicant/appellant, in condoning the delay. 14. 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 229 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.” 15. 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 15 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). 16. For the reasons, recorded above, the application for condonation of delay of 229 days , being devoid of merit, must fail, and the same is dismissed. Consequently, the appeal under Section 15 of the Act, is also dismissed, being barred by time, with no order as to costs. 17. Certified Copies of this order be sent to the parties, free of charge. 18. The file be consigned to the Record Room.
| | HON'BLE MRS. NEENA SANDHU, MEMBER | HON'BLE MR. JUSTICE SHAM SUNDER, PRESIDENT | , | |
