PER JUSTICE K.S. CHAUDHARI, PRESIDING MEMBER

          This revision petition has been filed by the petitioner against the order dated 11.2.2013 passed by the learned State Consumer Disputes Redressal Commission, Delhi (in short, ‘the State Commission’) in Appeal No. 612 of 2012 – Allahabad Bank Vs. Shri Shrawan Kumar Poddar & Anr. by which, application for condonation of delay was dismissed and appeal was dismissed as time barred.

2.      Brief facts of the case are that complainant/Respondent No.1 filed complaint before District Forum and submitted that for allotment of land, he applied by application and deposited Rs.17,820/- with OP No. 1/petitioner, who are authorized agent for collecting applications on behalf of OP No. 2/Respondent No. 2.  It was further alleged that later on, complainant deposited amount with OP No. 2 and as scheme of allotment of plots was delayed, he requested for refund of amount to OP No. 2.  As amount was not returned, alleging deficiency on the part of OPs, complainant filed complaint before District Forum.  OP No. 1 filed written statement and prayed for dismissal of complaint. OP No. 2 did not appear and was proceeded ex-parte.  Learned District Forum allowed complaint and directed OPs to refund Rs.84,951/- along with interest. OP no. 1 filed appeal before State Commission along with application for condonation of delay which was dismissed by impugned order against which; this revision petition has been filed.

3.      None appeared for Respondent No. 2 even after service and he was proceeded ex-parte.

4.      Heard learned Counsel for the parties and perused record.

5.      Learned Counsel for the petitioner submitted that inspite of very good case of the petitioner, learned State Commission committed error in dismissing application for condonation of delay, though, petitioner got order of District Forum on 20.6.2012 and appeal was filed on 7.7.2012; hence, revision petition be allowed and application for condonation of delay be allowed and matter may be remanded back for disposal of appeal on merits.  On the other hand, learned Counsel for the respondent submitted that order passed by learned State Commission is in accordance with law; hence, revision petition be dismissed.

6.      Apparently, there was delay of 329 days in filing appeal, but petitioner submitted in the application that petitioner was under bonafide mistaken impression that filing of reply would suffice as they had no liability and no Advocate was engaged. It was further submitted that petitioner received notice dated 20.6.2012 from Dy. Commissioner directing Bank to pay decreed amount and immediately appeal was filed on 7.7.2012, so, delay may be condoned.  Learned State Commission observed that as there was no satisfactory explanation for condonation of delay, application was dismissed.

7.      No doubt, there was delay of 329 days in filing appeal, but perusal of record reveals that after filing written statement, appellant did not appear before District Forum and order was passed in his absence.  Appellant came to know about the order on receiving order dated 20.6.2012 and immediately filed appeal on 7.7.2012.

8.      Not only this, perusal of complaint itself reveals that complainant deposited Rs.17,820/- with application with the petitioner and rest of the amount was deposited with OP No. 2, but District Forum allowed complaint against both the parties for refunding whole amount.  Learned Counsel for the petitioner has also drawn my attention towards brochure of OP No. 2 in which it was clearly mentioned that Allahabad Bank is acting as collecting banker and owns no responsibility for allotment or for refund of earnest money.  Thus, it becomes clear that prima facie order directing petitioner to pay full amount may not be correct.  Learned Counsel for the petitioner has placed reliance on judgment of Hon’ble Apex Court in (2007) 14 SCC 606 – Bogidhola Tea & Trading Company Ltd. & Anr. Vs. Hira Lal Somani in which it was observed that if ex facie order suffered from non-application of mind, delay in filing appeal should be condoned. He also placed reliance on (2011) 11 SCC 480 – Union of India Vs. Giani in which application for condonation of delay was allowed as there was strong arguable case in favour of the appellant.

9.      In the light of aforesaid judgments and discussion towards liability of petitioner, learned State Commission ought to have allowed application for condonation of delay subject to cost and has committed error in dismissing application and in such circumstances; revision petition is to be allowed.

10.    Consequently, revision petition filed by the petitioner is allowed and impugned order dated 11.2.2013 passed by the learned State Consumer Disputes Redressal Commission, Delhi (in short, ‘the State Commission’) in Appeal No. 612 of 2012 – Allahabad Bank Vs. Shri Shrawan Kumar Poddar & Anr. is set aside and application for condonation of delay filed by the petitioner is allowed subject to payment of cost of Rs.5,000/- to Respondent No. 1/ Complainant and delay in filing appeal stands condoned and State Commission is directed to decide appeal on merits after giving an opportunity of being heard to both the parties         .

11.    Parties are directed to appear before the State Commission on 27.10.2014.