Reserved
State Consumer Disputes Redressal Commission
U.P. Lucknow.
Appeal No. 2055 of 2011
Mahindra & Mahindra Finance Services Ltd.,
Mahindra Tower, Faizabad Road, Luckno. …Appellant.
Riyaz Ahmad Khan s/o Aabad Ahmad Khan,
R/o Moh. Bajdara Tola Kasba, Post. Kairabad,
Tehsil & District, Sitapur. …Respondent.
Present:-
1- Hon’ble Sri Rajendra Singh, Presiding Member.
2- Hon’ble Sri Sushil Kumar, Member.
Sri A.K. Srivastava, Advocate for appellant.
Sri Arun Tandan, Advocate for respondent.
Date 11.3.2022
JUDGMENT
Per Mr. Rajendra Singh, Member: This Appeal has been filed by the appellant Under Section 15 of The Consumer Protection Act, 1986 against the judgment and order dated 25.09.2007 passed by Learned District Forum Sitapur in Complaint Case no.19 of 2007, Riyaz Ahmad Khan Vs. Mahindra & Mahindra Financial Services Ltd.
This appeal has been filed after the limitation period and the appellant has submitted an application for condoning of delay supported by affidavit.
We have heard the learned counsel for the appellant Sri A.K. Srivastava and ld. Counsel for the respondent Sri Arun Tandan. We have perused pleadings, evidence and documents available on record.
We have seen the impugned judgment of the Learned District Forum. The Learned District Forum pronounced the judgment on 25th September 2007. The certified copy has been issued on 30.09.2011 and the present appeal has been
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filed on 25.10 2011. As per impugned judgment the notice on the opposite party was sufficient but no written statement has filed by the opposite party. The respondent’s counsel argued that there is delay in filing the appeal and it is time barred. The appellant’s counsel stated that he could not receive any notice from the learned District Forum. He came to know regarding ex-parte order dated 25th September 2007 only when he received the notice in execution case no.01 of 2008 on 3 April 2008. Thereafter, he moved an application before the learned Forum to recall the ex parte order. The counsel of the appellant did not appear but has sent his junior before the Learned District Forum but the learned Forum did not entertain the junior Counsel and the recall application was dismissed in absence of applicant on 13 January 2009. Thereafter, he moved an application to recall the order dated 13 January 2009 and 25thSeptember 2007 on 02.02.2009 which has been dismissed on 1 August 2011. It is submitted by the appellant’s counsel that the counsel of the applicant kept him in dark and thereafter the advocate was expelled from the panel list of the advocates. The impugned order has been obtained on 2 August 2011 and was sent to Bombay for legal advice which has been received on third October 2011 . After necessary steps the appeal has been filed. The merit of the case in the favour of the appellant. The prima-facie case and balance of convenience is in favour of appellant therefore it is prayed that the delay in filing the appeal may kindly be condoned in the interest of justice.
The learned counsel for the respondent objected on it and said that there was no need to move application for recalling ex-parte order but the appellant might file appeal
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against the said impugned judgment. The first application to recall the ex parte order was filed on 3 April 2008 meaning thereby that the appellant had been aware of the impugned order before that date. Now it is clear that there is delay of more than three years and their action given by the Appellant is not satisfactory at all. In Viraj Oversees Private Ltd. Vs. M/S Hindustan Motors Ltd. & Ors., II (1992) CPJ 360 (NC) it has been held that pendency of application for restoration will not operate to stop running of the period of limitation. In this case the impugned order beers the date June 18, 1991. After it came to the knowledge of the complainant instead of filing appeal before this commission, the complainant choose to move the State Commission with an application for restoration of the complainant petitioner which had been dismissed for default. The pendency of the application which was ultimately dismissed by the State Commission will not operate to stop the running of the period of limitation and the appeal which was filed here only on October 17, 1991 was clearly time barred.
So, here in this case when the appellant came to know about the impugned judgment and instead of filing appeal before the Hon’ble State Commission, he chose to file an application to recall the ex-parte judgment which was ultimately dismissed and thereafter, he again moved an application to recall the ex parte judgment, which was again dismissed. So this period will not exclude from the period of imitation.
The Hon'ble Supreme Court of India was pleased to hold in Civil Appeal No.2067 of 2002, State Bank of
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India vs. M/s B.S. Agricultural (I) dated 20.3.2009 at paras 15 and 16 that:
"On its plain averments, the complaint is barred by time and ought to have been dismissed as such but curiously this aspect was not examined by any of the consumer fora although specific plea to this effect was taken by the Bank.
Since the complaint is barred by time and liable to be dismissed on that count, it would be unnecessary to examine the other grounds of challenge."
In the instant matter, the delay is much more than the permissible limit, therefore, we have to ascertain where there was sufficient cause for not filing the appeal within the stipulated period of 30 days or not ?
In Mahindra & Mahindra Financial Services Ltd. Vs. Naresh Singh, I(2013) CPJ 407 (NC), where the delay was of 71 days only, it was held by the Hon'ble National Commission that "condonation cannot be a matter of routine and the petitioner is required to explain delay for each and every date after expiry of the period of limitation". In the instant matter, the appellants have not given any explanation of delay for each and every day.
In U.P. Avas Evam Vikas Parishad Vs. Brij Kishore Pandey, IV (2009) CPJ 217 (NC), where the delay was of only 84 days, it was held that "this is enough to demonstrate that there was no reason for this delay, much less a sufficient cause to warrant its condonation." In the instant matter, the cause shown by the appellants has been vehemently denied by the respondent on cogent reasons.
Furthermore, in Anshul Agarwal Vs. New Okhla Industrial Development Authority, IV (2011) CPJ 62
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(SC), it was observed by the Hon'ble Apex Court that "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 special period of limitation has been prescribed in the Consumer Protection Act for filing appeals and revisions in consumer matter and the objection of expeditious adjudication of consumer disputes will get defeated if this court was to entertain highly belated petition against the orders of Consumer Fora."
The Forum below considered all facts and circumstances before passing the impugned order. There is no illegality and irregularity in the order. The courts of law cannot permit frivolous appeals. The appeal is highly belated and no cogent or sufficient cause has been assigned by the appellants for condonation. The object of expeditious adjudication of consumer disputes will certainly get defeated if such highly belated and frivolous appeals are entertained. In fact, the balance of convenience rests with the respondent. The appeal is liable to be dismissed as time barred.
ORDER
The appeal is dismissed as time barred. The judgment and order dated 25.09.2007 passed by Learned District Forum, Sitapur in Complaint Case no.19 of 2007 is confirmed.
The stenographer is requested to upload this order on the Website of this Commission today itself.
Certified copy of this judgment be provided to the parties as per rules.
(Sushil Kumar) (Rajendra Singh)
Member Presiding Member
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Judgment dated/typed signed by us and pronounced in the open court.
Consign to record.
(Sushil Kumar) (Rajendra Singh)
Member Presiding Member
Jafri, PA II
Court 2
