Haryana

StateCommission

A/283/2017

ELDECO INFRARUTURE - Complainant(s)

Versus

RAM KUMAR KADIYAN - Opp.Party(s)

DALJIT SINGH

18 Jan 2023

ORDER

STATE CONSUMER DISPUTES REDRESSAL COMMISSION HARYANA, PANCHKULA

 

                                                      First Appeal No.283 of 2017

                                                 Date of Institution: 01.03.2017

                                                          Date of final hearing: 18.01.2023

Date of pronouncement: 01.03.2023

 

1.      Eldeco Infrastructure & Properties Ltd. 201-212, 2^nd Floor, Plot No.3, Splendor Forum, Jasola, District Centre, New Delhi through its Director/Authorised Signatory.

2.      Eldeco Infrastructure & Properties Ltd. NH-1, Sector 19, Nagal Khurd, GT road, Sonepat through its Director/Authorised Signatory.

…..Appellants

Versus

Sh. Ram Kanwar Kadiyan aged 65 years, r/o H.No. 1160, Sector-1, Rohtak Haryana at present H.No.3524, Sector-15, Sonepat.

…..Respondent

CORAM:    Mr. S.P.Sood, Judicial  Member

                    Mr. Suresh Chander Kaushik, Member

                   

Present:-    Mr. Sagar Ratusaria proxy counsel for Mr. Sunish Bindlish, Advocate for the appellants.

                   Mr. Sandeep Malik, Advocate for the respondent.

 

                                                 ORDER

S P SOOD, JUDICIAL MEMBER:

          The present appeal No. 283 of 2017 has been filed against the order dated 11.12.2015 of the District Consumer Disputes Redressal Forum, Sonepat (In short Now “District Commission”) in complaint case No.152 of 2014, which was allowed.

2       Perusal of the record reveals that there is a delay of 410 days in filing the present appeal. Appellant has filed an application under section 5 of the Limitation Act (in short “Act”)  for condonation of delay of  410 days wherein,  it is alleged that  copy of order dated 11.12.2015 passed by District Commission, Sonepat was received by the appellant on 16.12.2015. The appellant accordingly contacted his lawyer at Chandigarh for filing of the appeal.  After lapse of a few days when appellant asked the counsel about the status of case, counsel informed him that he never received back the papers  which he had sent to it for affixation of the signatures of the appellant. The lapse in following up with the counsel of the appellant occurred because the legal consultant of the appellant company was not available in the office for a few days because of some unavoidable circumstances. The delay in filing of appeal was purely un-intentional and was due to reasons mentioned above. Thus, delay of 410 days in filing of the present appeal be condoned.

3.      Learned counsel for the appellants vehemently argued that as per facts mentioned above, it is clear that delay in filing appeal was not intentional.    Learned counsel for the appellants further argued that though   copy of order dated 11.12.2015 passed by District Commission, Sonepat was received on 16.12.2015 following which the appellant contacted their lawyer for filing appeal.  Then after lapse of a few days when appellant asked the counsel about the status of case, counsel informed that he never received back the papers which he had sent to it for affixation of the signatures of the appellant. The lapse in following up with the counsel of the appellant occurred because the legal consultant of the appellant company was not available in his office for a few days because of some unavoidable circumstances.  Thus there was some delay in filing the present appeal  and the same if any may be condoned. 

4.      On the contrary, the learned counsel for the respondent vehemently argued that in the application for condonation of delay, the appellant have not given any precise date when he had sent the papers to the counsel and thereafter when the counsel  had sent papers to the company for signatures and on which date the appellant had sent all the papers back to the counsel.   All these details have deliberately been concealed  by the appellants before this Commission.  Therefore, the delay cannot be condoned.

5.      Arguments Heard. File perused.

6.      This argument of appellant is not to be considered because in the application for condonation of delay the appellants have not given any date on which date  he  sent papers to the counsel and further when the counsel  had sent papers to the company for signatures and on which date the appellant sent back all the papers to the counsel.   All the details were deliberately concealed  by the appellants before this Commission. There is no justification in waiting for 410 days in filing the present appeal.  A period of 45 days as per the old Act has been provided for filing an appeal against the order of the District Commission. The proviso therein permits the State Commission to entertain an appeal after the expiry of the period of 45 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.           The inordinate delay of 410 days cannot be condoned in the light of the following judgments passed by the Hon’ble Apex Court.

The Hon’ble Supreme Court in case Chief Post Master General & Ors Versus Living Media India Ltd. & Anr. 2021 (3) SCC 563 it has been held by the Hon’ble Supreme court:-

“12. It is not in dispute that the person (s) concerned were well aware or conversant with the issues involved including the prescribed period of limitation for taking up the matter by way of filing a special leave petition in this court.  They cannot claim that they have a separate period of limitation when the department was possessed with competent persons familiar with court proceedings.  In the absence of plausible and acceptable explanation, we are posing a question why the delay is to be condoned mechanically merely because the Government or a wing of the Government is a party before us.  Though we are conscious of the fact that in a matter of condonation of delay when there was no gross negligence or deliberate inaction or lack of bonafide, a liberal concession has to be adopted to advance substantial justice, we are of the view that in the facts and circumstances, the Department cannot take advantage of various earlier decisions.  The claim on account of impersonal machinery and inherited bureaucratic methodology of making several notes cannot be accepted in view of the modern technologies being used and available. The law of limitation undoubtedly binds everybody including the Government.

13.    In our view, it is the right time to inform all the Government bodies, their agencies and instrumentalities and unless they have reasonable and acceptable explanation for the delay and there was bona fide effort, there is no need to accept the usual explanation that the file was kept pending for several months/ years due to considerable degree of procedural red tape in the process.  The Government departments are under a special obligation to ensure that they perform their duties with diligence and commitment.  Condonation of delay is an exception and should not be used as an anticipated benefit for Government departments.  The law shelters everyone under the same light and should not be swirled for the benefit of a few.  Considering the fact that there was no proper explanation offered by the Department for the delay except mentioning of various dates, according to us, the department has miserably failed to give any acceptable and cogent reasons sufficient to condone such a huge delay.  Accordingly, the appeals are liable to be dismissed on the ground of delay.

14. In view of our conclusion on issue (a), there is no need to go into the merits of the issues (b) and (c ).  The question of law raised is left open to be decided in an appropriate case. In the light of the above discussion, the appeals fail and are dismissed on the ground of delay. No order as to costs.

Appeal dismissed.”

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.”

         

7.      Taking into consideration the pleas raised by appellant in the application for condonation of delay and settled principle of law, this Commission does not find it a fit case to condone delay of 410 days in filing of the appeal. There is no need to go into the merits of the case. The department-appellants have miserably failed to give any acceptable and cogent reasons sufficient to condone such a huge delay.  Hence, the appeal is dismissed on the ground of delay.

8.      Application(s) pending, if any, stand disposed of in terms of the aforesaid Order.

9.      A copy of this order be provided to all the parties free of cost as mandated by the Consumer Protection Act, 1986/2019. The Order be uploaded forthwith on the website of the commission for the perusal of the parties.

10.    File be consigned to record room.                  

 

1st  March, 2023Suresh Chander Kaushik                  S. P. Sood                                                    Member                                                            Judicial Member    

S.K(Pvt. Secy.