Per Hon’ble Mr.Justice S.B.Mhase, President
Heard Mr.S.N.Chataule-Advocate for the appellant.
This appeal is directed as against the order passed by District Forum, Central Mumbai in consumer complaint no.165/2010. The complaint was dismissed by the District Forum by order dated 29/06/2011. Copy of the said order appears to be obtained on 18/07/2011 and, thereafter, appeal has been filed. Appeal was filed on 18/08/2011 and has been registered on 13/08/2012.
After presentation of appeal, the office has raised the objection that the page nos.31, 51, 52, 53, 92, 94, 96 & 111 are not readable. 15 days time was granted for removal of objections. Even though the Ld.counsel was present on 13/04/2012 the objections were not removed and since the objections were not removed within a period of 15 days as per Regulation no.9 of Consumer Protection Regulations, 2005, it was placed before the bench of the State Commission. The matter appeared on 03/03/2012 and Advocate Chataule was present. He requested for time to remove the objections and the time was granted upto 30/03/2012. But, the objections were not removed by that extended time. Therefore, appeal was placed before the bench of the State Commission again on 30/03/2012 and Advocate H.H.Trivedi a/w. Advocate Baliram Kamble was present and Advocate Trivedi has undertaken to remove the objections by next date and, therefore, the case was adjourned to 13/04/2012.
On 13/04/2012, since the objections were not removed it was again placed before the bench of the State Commission and one Advocate S. Chataule was present. On his oral request it was adjourned to 15/06/2012 for removing the office objections. When it was noticed that by 15/06/2012 the objections were not removed, the bench of State Commission passed a detailed order making reference to the above stated adjournments and time granted for removal of objections. What is important to be noted that Regulation no.9 contemplates removal of objections within 15 days and if not removed, the case should be placed before the bench for further orders. The bench of the State Commission was equally kind enough and has shown leniency to grant time to remove the objections from 03/03/2012 upto 15/06/2012. Time which was granted was sufficient for the purpose of removal of objections namely, to substitute the unreadable pages referred to above in the objections. For the best reasons known to the appellant/ complainant, he has not complied with those objections.
On 15/06/2012 therefore while passing a detailed order taking recourse to the provisions of Regulation no.9(5), the State Commission directed that time from the presentation of the appeal till compliance of the objections will not be excluded from the period of limitation and the appeal will be treated to be presented on the date when the office objections are complied. Therefore, in view of this order, it appears that office objections stated above were complied by 28/06/2012 but the Registrar has noted that the order dated 15/06/2012 by which the Commission has exercised its powers under Regulation no.9(5) and excluded the period from the presentation of the appeal till removal of office objections, that necessitated filing of delay condonation application and, therefore, on 28/06/2012 when the other office objections were complied with, it was obligatory for the appellant/complainant to file delay condonation application. That was very much necessary in view of the order of State Commission dated 15/06/2012. Since such a delay condonation application was not filed, therefore, Registrar has made an endorsement that all objections except delay condonation application not submitted are complied with.
The case appeared before the State Commission on 29/06/2012. At that time no one was present on behalf of the appellant/complainant, but having found that delay condonation application is not filed, the matter was adjourned with an observation that point can be considered at the time of hearing of appeal. However, by this time, wisdom has prevailed upon the appellant/complainant and his advocate and he has filed a delay condonation application on 13/08/2012 and, thus, all the office objections, namely, initial office objection and office objection which was raised in view of order dated 15/06/2012. Thus, what we find that all office objections have been complied with by 13/08/2012. Therefore, when the case appeared before the State Commission on 21/08/2012, the notice on delay condonation application was issued r/o.18/10/2012. It further appears that notices were served on opponents. However, the opponents have remained absent. What is interesting to note at this stage that when on 21/08/2012 the notice on delay condonation application was issued, the applicant and his advocate both were absent, but having found that there is delay condonation application, notice was issued by the State Commission. Now, the notices are served on opponents. Opponents in spite of service are absent. There is no reply filed opposing delay condonation application. However, that does not mean that delay condonation application should be allowed. Obligation of the appellant/complainant is to submit sufficient ground for condonation of delay and that is the legal and statutory requirement. Therefore, we perused the application filed by the Ld. Counsel. It is very interesting to note that he has stated that all the office objections were removed by 13/04/2012. Time for removal of objections was asked for and, thereafter, submitted that the office objections of legible copies was complied with. In respect of this aspect, there is no dispute. Then in para 4 he states that original claim documents were submitted to the opponent/ Insurance company and whatever documents are available, they are annexed and in para 5 he states that the matter again came up for hearing before Hon’ble Commission on 15/06/2012. Appellant appeared and explained that whatever legible copies the appellant has with him are already replaced and the original documents were with the opponent/Insurance Company. The Hon’ble Commission directed to file an application for condonation of delay for which date was asked. Appellant has therefore filed delay condonation application. In fact, by order dated 15/06/2012 the Commission has exercised its power under Regulation no.9(5) and made it clear that the date of presentation of the appeal will not be accepted and treated as 18/08/2011 but the date on which the complete compliance of office objections is made will be treated as date of presentation of appeal. All these objections were removed on 13/08/2012 and, therefore, date of presentation of appeal is 13/08/2012. If that date is taken into consideration along with certified copy which he has annexed to the appeal memo, there is delay of 312 days. More specifically, appellant was under obligation to explain that from the date of presentation of appeal till removal of objections what were sufficient causes and for which he could not comply with the office objections. This cause or ground has not been stated in the delay condonation application. What is important that the case is tried to be make out that the original documents are with the Insurance Company but certainly, it is admitted that copies of those document were with the appellant/ complainant and those documents were annexed at the time of filing the appeal. Only problem with those documents that those documents were not legible and, therefore, it was obligatory for him to get those documents typed so that Commission can read it. In fact, this is absolute lapse on the part of an advocate and not on the part of the appellant/complainant because when the documents were with the advocate, advocate should have got it typed and submitted and substituted the documents. There are no reasons which the advocate can explain in this respect because it is not digestible to anyone that for a period of 312 days those documents cannot be typed and substituted and, especially, in the background and circumstances when repeated adjournments are sought by the advocate. Some time in absence of advocate time has been granted by the State Commission. Therefore, there were no justifiable reasons and no grounds have been stated in the delay condonation application.
To address the sufficient ground to condone delay it is stated that only because of our order, delay application is invited. That does not mean simply by filing an application, we are obliged to condone the delay. Ultimately, duty of the party is to make out a sufficient ground for condonation of delay and if Commission is satisfied that the ground is sufficient then only delay will be condoned. Delay condonation application is not simplicitor formality. As a result of that valuable right is accrued to the other side to contest delay condonation application. Not only that but if the appeal is not filed within limitation in view of the provisions of section 24 of Consumer Protection Act, 1986, order of the District Forum obtains finality and that finality is required to be disturbed by considering delay condonation application. Therefore, delay condonation application is not a simplicitor formal procedure but we have to deal with substantial right of the other side and we have to consider whether that substantial right is to be taken away and chance for litigant is to be given. As a result of delay condonation the order which has attained finality under the law gets a new life for litigation and, therefore, application has to be meticulously drafted making out a case for sufficient ground as contemplated under provisions of law. Since such meticulous legal draftsmanship is not reflected from the application, there is no other alternative left out for us but to dismiss the application for condonation of delay. Hence the following order:-
ORDER
Misc. application for condonation of delay is rejected.
Consequently, appeal does not survive for consideration.
Pronounced on 18th October, 2012.
