NCDRC

NCDRC

RP/2728/2010

ORISSA CONSTRUCTION CORPORATION LTD. - Complainant(s)

Versus

POST MASTER & ANR. - Opp.Party(s)

MR. ANKUR MITTAL

18 May 2011

ORDER

NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION
NEW DELHI
 
REVISION PETITION NO. 2728 OF 2010
 
(Against the Order dated 30/06/2010 in Appeal No. 990/2009 of the State Commission Orissa)
1. ORISSA CONSTRUCTION CORPORATION LTD.
At/P.O.- Balimela, P.S.- Orkel
Malkangiri - 764051
Orissa
...........Petitioner(s)
Versus 
1. POST MASTER & ANR.
At/P.o./P.S.- Malkangiri
Malkangiri - 764045
Orissa
2. SENIOR SUPERINTENDENT OF POST OFFICES, KORAPUT DIVISION
At/Po- Jeypore
...........Respondent(s)

BEFORE: 
 HON'BLE MR. JUSTICE R. K. BATTA, PRESIDING MEMBER
 HON'BLE MR. ANUPAM DASGUPTA, MEMBER

For the Petitioner :MR. ANKUR MITTAL
For the Respondent :NEMO

Dated : 18 May 2011
ORDER

PER MR. JUSTICE R.K. BATTA, PRESIDING MEMBER The Petitioner had purchased (National Saving Certificates) NSCs for Rs.3,,34,000/- in the year 1995. When the Petitioner approached Post Master, Sub-Post Office, Malkangiri for payment of maturity value thereof, the Respondents refused to pay the interest on the said certificates on the ground that the certificates were taken by the Petitioner in contravention of notification of the Government of India and Rules framed thereunder, inasmuch as the Petitioner-Corporation is not entitled to purchase NSCs. Petitioner approached the District Forum and the District Forum by order dated 23.10.2007 held that the Petitioner is not entitled to any interest upon NSCs and as such the complaint was dismissed. However, the principal amount was ordered to be returned to the Petitioner. The order of the District Forum was challenged by the Petitioner before the State Commission by filing appeal. The appeal was filed on 2.12.2009 and the Office of the State Commission pointed out that there was delay of more than 2 years in preferring the appeal and as such the Petitioner filed Miscellaneous Case No.1672 of 2009 for condoning the delay in filing the appeal. The State Commission did not accept the explanation given for delay in filing the appeal and dismissed the appeal on the ground of inordinate delay. This order is subject matter of challenge in this revision. Learned counsel for the Petitioner submitted before us that sufficient cause was shown in Miscellaneous Case No.1672 of 2009 for condoning delay, but the State Commission erred in dismissing the application for condonation of delay as also the appeal. When the matter came up for hearing on admission on 30.8.2010, the Bench of this Commission was prima facie not satisfied with the explanation given in Miscellaneous Case No.1672 of 2009 and in this connection learned counsel for the Petitioner had drawn the attention of the Bench to a letter dated 10.10.2009 of Advocate Sri Basanta Kumar Nanda which is at page 47 of the record. In this letter it was stated that the Advocate could not obtain the copy of judgement due to oversight and illness for prolonged time. No details beyond this were mentioned in the said letter for delay in obtaining the certified copy. Counsel for the Petitioner had also stated that the Petitioner had not received the copy as required under the Consumer Protection Act, 1986 and the rules framed thereunder. Therefore, the Petitioner was asked to file affidavit as to when certified copy was applied by the Counsel and when it was received and when it was ultimately sent to the Petitioner. Pursuant to the order dated 30.8.2010 an the affidavit, which is at pages 64 to 66,was filed. In the said affidavit it has been stated that Counsel for the Petitioner who was conducting the case before the District Forum, had intimated vide letter dated 21.9.2010 that he had visited the District Forum on 14.7.2009 for obtaining the certified copy of the judgement dated 23.10.2007 passed in C.C. no.38 of 2006 and since free copy meant for communication to the Petitioner directly by the District Forum was still lying in the records of the Forum, the same copy was handed over to him and as such there was no need to apply for certified copy. After obtaining the free copy of the order, it was forwarded to the Petitioner on 10.10.2009. From the said letter dated 21.9.2010 it is clear that the Counsel for the Petitioner had not applied for certified copy at all. The judgement was pronounced by the District Forum in the open court on 23.10.2007. However, no certified copy of the said order was applied for by the Petitioner or his Counsel. The Petitioner did not produce any material to substantiate the contention in Miscellaneous Case No.1672 of 2009 that his Counsel was suffering from prolonged illness and was unable to depute any person to verify as to whether the free copy was sent by the District Forum to the Petitioner. On 5.10.2010 the Bench of this Commission called for original records of C.C. No.38 of 2006 from the District Forum and the District Forum was also asked to inform as to when the free copy of the order was sent/supplied to the Complainant as also whether the Complainant had applied for certified copy and if it is so, when certified copy was furnished to the Complainant. The District Forum has sent original records as also a letter furnishing the required information. The President of the District Forum has informed as under:- i) The free copy of the judgement was sent to the Complainant on 25.7.2007 through postal service. ii) The Complainant has not applied to the Forum for any certified copy. We had also checked the farad order dated 23.10.2007 of the District Forum in C.c. No.38 of 2006 which shows that the District Forum had dismissed the complaint. In the said farad order dated 23.10.2007 it has been specifically ordered : et the free copies of the Judgement be supplied to the parties at an early date. Thereafter in farad order dated 25.10.2007 it has been specifically stated:- s both the parties failed to appear on the date of final order, the copies of the final order could not be supplied to the parties on the date of judgement. As such the free copies of the judgement sent to the parties through the postal service. From the above , it is crystal clear that free copy of the judgement was sent to the Complainant on 25.10.2007 through postal service. Therefore, the statement of the Petitioner in affidavit dated 30.9.2010 which is at pages 64 to 66 of the record of the revision to the effect that: ince the free copy meant for communication to the Petitioner directly by the District Forum was still lying there in records of the Forum (as t he same had not yet been forwarded to the Petitioner) , the same copy was handed over to the Petitioner Counsel is apparently false since free copy as per the records of the District Forum had been sent to the Petitioner on 25.10.2007. Therefore, we are not inclined to accept the explanation furnished by Advocate Sri Basanta Kumar Nanda vide letter dated 21.9.2010 which is at page 68 of the record. Learned counsel for the Petitioner had placed before us true copies of the judgement of the District Forum which is at pages 70 to 75 and at pages 78 and 83 of the record of the revision. The said copies do not show that they are the free copies. Therefore, what is stated in letter dated 21.9.2010 by Advocate Sri Basanta Kumar Nanda to the effect that no free copy of the judgement dated 23.10.2007 was ever issued to Orissa Construction Corporation Ltd. by the Forum as required under Rule 4(10) and 8(3) of Orissa Consumer Protection Rules is not correct. In view of the above, we find that not only no sufficient explanation has been given for condoning the delay in filing the appeal, but on the contrary false representation has been made in the application for condonation of delay (Miscellaneous Case No.1672 of 2009). Besides the affidavit dated 30.9.2010 of Amulya Kumar Das, no material has been placed on record that Counsel for the Complainant could not obtain copy of the judgement since he was suffering from prolonged illness and was unable to depute any person for obtaining the certified copy. Learned Counsel for the Petitioner has placed reliance on judgement of the Apex Court in Secretary, Ministry of Works & Housing Govt. of India and others V/s. Mohinder Singh Jagdev and others (1996) 6 Supreme Court Cases 229 on the issue of condonation of delay and Housing Board, Haryana V/s. Housing Board Colony Welfare Association and others (1995) 5 Supreme Court Cases 672. It is now well settled that there is no straight jacket formula for deciding the issue of condonation of delay and every case depends upon the facts and circumstances of its own. Inordinate delay is one of the consideration, but what is important is sufficiency and acceptability of the explanation. In the case before us, we not only find that there has been inordinate delay in filing the appeal, but the explanation given is not acceptable and is, in fact, contrary to the record. The record of the District Forum is clear that the free copy of the order dated 23.10.2007 was sent to the Complainant on 25.10.2007 through postal service. Accordingly, the judgement of the Apex Court in Housing Board, Haryana V/s. Housing Board Colony Welfare Association and others (supra) does not in any manner help the case of the Complainant. In that case the order was pronounced by the District Forum in open court on 22.10.1992 which was not signed and dated as the President had proceeded on leave and soon after the return of the President on leave, copy of the order duly signed and dated was made available to the Appellant on 30.10.1992 and the appeals were filed on 30.11.1992. It is in these circumstances that it was held that appeals were not barred by limitation. It is in this connection the Apex Court has examined the relevant provisions of the Consumer Protection Act as also rules framed thereunder. In view of the above, the revision filed against the order of the State Commission dismissing the condonation application as also appeal is hereby dismissed with costs of Rs.10,000/- as we do not find any merit in this revision. The amount deposited by the Petitioner in terms of order dated 30.8.2010 shall stand adjusted against the costs imposed in this order and the same shall be deposited in the Consumer Legal Aid Account of this Commission.

 
......................J
R. K. BATTA
PRESIDING MEMBER
......................
ANUPAM DASGUPTA
MEMBER

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