House of Fitness Pvt. Ltd., through 203-204, IInd Floor, Building No.5, Local Shopping Complex, Derawal Nagar, Delhi-110009

……Appellant

V e r s u s

1.     Sandeep Kumar, S/o Sh. Harbans Lal, House No.1168, Sector 42-B, , Chandigarh.

…..Respondent no.1

2.     Anytime India Fitness Pvt. Ltd., Floor Eastern Wing, Tricity Centre, Plot No.28,Service dispensed with, vide order dated 11.10.2013).

…..Respondent no.2

3.     Anytime Fitness India, 6^th infact Vikhroli)Service dispensed with, vide order dated 11.10.2013).

…..Respondent no.3

Appeal under Section 15 of the Consumer Protection Act, 1986.

BEFORE:  

Argued by:

PER JUSTICE SHAM SUNDER (RETD.), PRESIDENT

    This appeal is directed against the

“In view of the foregoings, we are of the opinion that the complainant has proved his case. Therefore, the complaint stands allowed. The OPs are directed to refund Rs.8491/- to the complainant. The OPs are also directed to pay a sum of Rs.5,000/- towards compensation and litigation costs. The liability of the OPs shall be joint and several.

This order be complied with by the OPs, within a period of 30 days from the date of receipt of copy of this order, failing which they shall be liable to pay the above total awarded amount along with penal interest @12% per annum from the date of filing of this complaint i.e. 13.03.2013 till its actual payment”.

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“This is to inform to our privileged Anytime India Fitness members that we are Re-opening all our centers from 7^th

12.        -Opposite Party No.2. Deficiency, in rendering service, if any, was on the part of Opposite Party No.1, and not on the part of Opposite Party No.2, with which, the complainant had no privity of contract. Neither the enrollment and membership fees, was paid to Opposite Party No.2, nor any service was rendered by Opposite Party No.2, nor any promise was held out by Opposite Party No.2, for rendering any service, to the complainant. Under these circumstances, the District Forum was wrong, in coming to the conclusion, that Opposite Party No.2, was also deficient, in rendering service, to the complainant. Since there was no privity of contract, between the complainant, and Opposite Party No.2, no liability could be fastened upon it. The order of the District Forum qua Opposite Party No.2/appellant, therefore, being illegal is liable to be set aside.

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Pronounced.

November 26, 2013

Sd/-

 [JUSTICE SHAM SUNDER (RETD.)]

PRESIDENT

Sd/-

 (DEV RAJ)

MEMBER

Rg

STATE COMMISSION

(First Appeal No.436 of 2013)

Argued by: 

Dated the 

ORDER

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                  (i).    The Courts generally adopt a liberal approach in considering the application for condonation of delay on the ground of sufficient cause under Section 5 of the Limitation Act.

                (ii).    Rules of limitation are not meant to destroy the rights of parties. They are meant to see that the parties do not resort to dilatory tactics, but seek their remedy promptly.

               (iii).    Once a valuable right has accrued in favour of one party as a result of the failure of the other party to explain the delay by showing sufficient cause and its own conduct, it will be unreasonable to take away that.

                (iv).        Whilst considering applications for condonation of delay under Section 5 of the Limitation Act, the Courts do not enjoy unlimited and unbridled discretionary powers. All discretionary powers, especially judicial powers, have to be exercised within reasonable bounds, known to the law”.

4.           N.Balakrishnan v. M.Krishnamurthy, there was a delay of 883 days, in filing application, for setting aside exparte decree, for which application for condonation of delay was filed, the Apex Court held as under:-

“It is axiomatic that condonation of delay is a matter of discretion of the court. Section 5 of the Limitation Act does not say that such discretion can be exercised only if the delay is within a certain limit. Length of delay is no matter, acceptability of the explanation is the only criterion. Sometimes delay of the shortest range may be uncondonable due to a want of acceptable explanation whereas in certain other cases, delay of a very long range can be condoned as the explanation thereof is satisfactory. Once the court accepts the explanation as sufficient, it is the result of positive exercise of discretion and normally the superior court should not disturb such finding, much less in revisional jurisdiction, unless the exercise of discretion was on wholly untenable grounds or arbitrary or perverse. But it is a different matter when the first court refuses to condone the delay. In such cases, the superior court would be free to consider the cause shown for the delay afresh and it is open to such superior court to come to its own finding even untrammeled by the conclusion of the lower court.

10. The primary function of a court is to adjudicate the dispute between the parties and to advance substantial justice. The time- limit fixed for approaching the court in different situations is not because on the expiry of such time a bad cause would transform into a good cause."

The Court further observed in paragraphs 11, 12 and 13 which run thus:-

"11. Rules of limitation are not meant to destroy the rights of parties. They are meant to see that parties do not resort to dilatory tactics, but seek their remedy promptly. The object of providing a legal remedy is to repair the damage caused by reason of legal injury. The law of limitation fixes a lifespan for such legal remedy for the redress of the legal injury so suffered. Time is precious and wasted time would never revisit. During the efflux of time, newer causes would sprout up necessitating newer persons to seek legal remedy by approaching the courts. So a lifespan must be fixed for each remedy. Unending period for launching the remedy may lead to unending uncertainty and consequential anarchy. The law of limitation is thus founded on public policy. It is enshrined in the maxim interest reipublicae up sit finis litium (it is for the general welfare that a period be put to litigation). Rules of limitation are not meant to destroy the rights of the parties. They are meant to see that parties do not resort to dilatory tactics but seek their remedy promptly. The idea is that every legal remedy must be kept alive for a legislatively fixed period of time.

12. A Court knows that refusal to condone delay would result in foreclosing a suitor from putting forth his cause. There is no presumption that delay in approaching the court is always deliberate. This Court has held that the words "sufficient cause" under Section 5 of the Limitation Act should receive a liberal construction so as to advance substantial justice videShakuntala Devi Jain v. Kuntal KumariState of W.B. v. Administrator, Howrah Municipality

13. It must be remembered that in every case of delay, there can be some lapse on the part of the litigant concerned. That alone is not enough to turn down his plea and to shut the door against him. If the explanation does not smack of mala fides or it is not put forth as part of a dilatory strategy, the court must show utmost consideration to the suitor. But when there is reasonable ground to think that the delay was occasioned by the party deliberately to gain time, then the court should lean against acceptance of the explanation. While condoning the delay, the court should not forget the opposite party altogether. It must be borne in mind that he is a loser and he too would have incurred quite large litigation expenses. "

5.           Delhi High Court, while condoning 52 days delay, in filing the appeal, observed as under:-

“No doubt, originally the Apex Court in Ram Lal Vs. Rewa Coalfield AIR 1962 SC 351 had held that while seeking condonation of delay under Section 5 of the Limitation Act the application must not only show as to why he did not file the appeal on the last day of limitation but he must explain each day`s delay in filing the appeal. The later judgments of theApex CourtApex Court

6.                   The principle of law, laid down, in the aforesaid cases, is fully applicable, to the facts of the instant case. It is evident, from the record that delay, in this case, occurred due to the cumbersome procedure, which was required to be followed, to obtain approval for filing the appeal. Certified copy of the order impugned, after having been received, by the Counsel, and the necessary documents, were, in the first instance, sent to the Office of the applicant/appellant, at Delhi, for seeking approval of the Competent Authority, as to whether, it was a fit case, for filing an appeal or not. For taking decision by the Company, as to whether, an appeal against the order was to be filed or not, the file had to pass through many channels. No single person, could take the decision, at his own level independently, for filing an appeal. Under these circumstances, it could be held that delay in filing the appeal, was neither intentional nor willful, but, on account of the reasons, explained in the application. Even otherwise, it is settled principle of law that normally every lis should be decided on merits. When the substantial justice and the procedural wrangles are pitted against each other, then the former shall prevail over the latter. There is, thus, sufficient cause, for condoning the delay. The application thus, deserves to be accepted.

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12.       Certified copies of this order, be sent to the parties, free of cost.

Rg