This appeal is directed against the order dated 17.2.2012, rendered by the District Consumer Disputes Redressal Forum-II, UT, Chandigarh (hereinafter to be called as the District Forum only), vide which, it accepted the complaint of the complainant and directed the Opposite Party(now appellant) as under ; “[a] to Refund (Rs. 18,282/-) 2/3rd of the amount of interest (Rs.27,424/-) recovered illegally by the Opposite Party; [b] Pay Rs.25,000/- towards compensation for deficiency in service, as well as unfair trade practice. [c] Rs.7,000/- as cost of litigation; The above said order shall be complied within 30 days of its receipt; thereafter, the Opposite Party shall be liable for an interest @18% per annum on Rs.43,282/- till it is paid, besides for the cost of litigation. ” 2. The facts, in brief, are that the complainant(now respondent), purchased a Bullet Royal Enfield Motor Cycle from the authorized dealer M/s Manmohan Auto Store, SCF No. 6, Sector 27-C, Chandigarh, vide Bill No. 7108, dated 9.9.2008 for a sum of Rs.73,800/-. The Complainant got a loan sanctioned for Rs.44,000/- vide Agreement No. 13788634, from the Opposite Party, and it was agreed that 36 installments of Rs.1984/- per month, were to be paid. It was stated that the remaining amount of money was paid in cash to the dealer. It was further stated that at the time of grant of loan, the Opposite Party declared that the prevailing rate of interest was between 11%-12% at reducing balance and the same was according to the RBI guidelines. It was further stated that the complainant was issued a re-payment schedule (Annexure C2) by the Opposite Party, from where it was revealed that the Opposite Party was charging interest, at the rate of 34.75% on flat rate basis instead of reducing balance basis. It was further stated that under such high rate of interest he would end up paying Rs.27,424/- as interest, against the principal amount of Rs.44,000/-, which was against the principles of natural justice and equity. It was further stated that after having run from pillar to post, the complainant, ultimately, sent a legal notice dated 6.4.2010 to the Opposite Party, but to no avail. It was further stated that the aforesaid acts of the Opposite Party, amounted to deficiency, in rendering service, as also indulgence into unfair trade practice. When the grievance of the complainant, was not redressed, left with no alternative, a complaint under Section 12 of the Consumer Protection Act, 1986 (hereinafter to be called as the Act only) was filed by him, directing the Opposite Party to revise the loan account at the rate of interest which was prevailing in the year 2008; ; compensation of Rs.25,000/- for harassment and mental agony ; Rs.15,000/- on account of punitive damages, alongwith interest @ 21% p.a. from the date of disbursement of loan. 3. The Opposite Party, in its written version, pleaded that the Complainant having availed of the said loan, and being aware of the terms of finance, was required to re-pay the loan as per the Agreement. It was further pleaded that according to re-payment schedule, placed, on record, by the complainant himself, in respect of the loan availed of, loan was repayable in 36 instalments of Rs.1984/- each. It was further pleaded that the 1st instalment was payable on 5.11.2008 and, after the expiry of 2 years, the Complainant raised the dispute that the rate of interest being charged was excessive, which was time barred. It was further pleaded that if the Complainant was not satisfied with the rate of interest, he should have closed the loan forthwith, and returned the amount to the Bank. It was stated that the interest charged was strictly as per the agreed terms and not @ 34.75% as alleged. It was denied that the Opposite Parties were deficient, in rendering service, or indulged into unfair trade practice. The remaining averments, were denied, being wrong. 4. The Parties led evidence, in support of their case. 5. After hearing the Counsel for the parties, and, on going through the evidence, and record of the case, the District Forum, accepted the complaint, in the manner, referred to, in the opening paragraph of the instant order. 6.. Feeling aggrieved, the instant appeal, has been filed by the appellant/Opposite Party. 7. Alongwith the appeal, an application for condonation of delay of 5 months and 29 days(174 days as per the office report) , in filing the same (appeal), has been moved. The grounds, set up in the application, are to the effect, that the order was passed on 17.2.2012 and the appeal could be filed by 18.3.2012, but some time was taken in taking the appropriate approvals from the concerned authorities, at Regional Office at Delhi, and the Head Office at Mumbai , which was, ultimately, given on 6.4.2012. Thereafter the Demand Draft for the statutory amount was prepared at Mumbai and was provided on 15.4.2012. The concerned appeal file alongwith Demand Draft was misplaced in the office of the Counsel. It was stated that thereafter the Counsel for the applicant/appellant fell ill, on account of severe back problem and was advised bed rest for five weeks. Thereafter, Demand Draft was got revalidated and the appeal was filed, resulting into delay of 5 months and 29 days, in filing the same. It was further stated that, due to the aforesaid reasons , the appeal could not be filed, in time. It was further stated that the delay, in filing the appeal, was neither intentional, nor deliberate. Accordingly, the prayer, referred to above, was made. 8. We have heard the Counsel for the applicant/appellant, on the application, for condonation of delay, as also, in the main appeal, and have gone through the evidence, and record of the case, carefully. 9. First coming to the application, for condonation of delay, it may be stated here, that the same is liable to be dismissed, for the reasons, to be recorded hereinafter. The first question, that arises for consideration, is, as to whether, there is sufficient cause for condonation of delay of 5 months & 29 days, in filing the appeal, under Section 15 of the Act. It was held in Smt.Tara Wanti Vs State of Haryana through the Collector, Kurukshetra AIR 1995 Punjab & Haryana 32, a case decided by a Full Bench of the Punjab & Haryana High Court, that sufficient cause, within the meaning of Section 5 of the Limitation Act, must be a cause, which is beyond the control of the party, invoking the aid of the Section, and the test to be applied, would be to see, as to whether, it was a bona-fide cause, in as much as, nothing could be considered to be bonafide, which is not done, with due care and attention. In New Bank of India Vs. M/s Marvels (India): 93 (2001) DLT 558, Delhi High Court held as under:- “No doubt the words “sufficient cause” should receive liberal construction so as to advance substantial justice. However, when it is found that the applicants were most negligent in defending the case and their non-action and want of bonafides are clearly imputable, the Court would not help such a party. After all “sufficient cause” is an elastic expression for which no hard and fast guide-lines can be given and Court has to decide on the facts of each case as to whether the defendant who has suffered ex-parte decree has been able to satisfactorily show sufficient cause for non- appearance and in examining this aspect, cumulative effect of all the relevant factors is to be seen.” 10. In Oriental Insurance Co. Ltd. vs. Kailash Devi & Ors. AIR 1994 Punjab and Haryana 45, it was held as under:- “There is no denying the fact that the expression sufficient cause should normally be construed liberally so as to advance substantial justice, but that would be in a case where no negligence or inaction or want of bonafides is imputable to the applicant. The discretion to condone the delay is to be exercised judicially i.e. one of is not to be swayed by sympathy or benevolence.” 11. In R.B. Ramalingam Vs. R.B. Bhuvaneswari, 2009 (2) Scale 108, the Supreme Court observed as under:- “We hold that in each and every case the Court has to examine whether delay in filing the Special 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”. 12. Recently, Supreme Court in Ansul Aggarwal Vs. New Okhla Industrial Development Authority, 2012 (2) CPC 3 (SC) has laid down 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 the special period of limitation has been prescribed under the Consumer Protection Act, 1986, for filing appeals and revisions in Consumer matters and the object of expeditious adjudication of the Consumer disputes will get defeated, if this Court was to entertain highly belated petitions filed against the orders of the Consumer Foras” 13. Keeping in view the principle of law, laid down, in the aforesaid cases, it is to be seen, as to whether, the applicant/appellant, has been able to establish that it was, on account of the circumstances, beyond its control, that it could not file the appeal, in time. The appeal could be filed within 30 days, from the date of receipt of a copy of the order. The ground set up, by the applicant/appellant, in the application, for condonation of delay, is that the delay aforesaid, in filing the appeal, occurred on account of getting approval from its Regional office at Delhi and then from Head Office at Mumbai and thereafter the illness of his Counsel, who was advised bed rest for five weeks due to backache. Affidavit of the Clerk of the Counsel has been placed on record that the certified copy of the Order was inadvertently lost in the office of the Counsel. No affidavit of the Counsel for the complainant was filed, to the effect, that he was immobile and remained in the hospital/house for the aforesaid period, or thereafter. Certified copy of the impugned order dated 17.2.2012 was received by the applicant/appellant on 28.2.2012, whereas, the appeal was filed on 19.9.2012. Even if, the version of the applicant/appellant is believed to be true for the sake of arguments, the appeal could be filed within time. The applicant/appellant apparently acted, leisurely and did not take action for filing the appeal within 30 days, from the date of receipt of a copy of the order. The process of getting approval could be started immediately on receiving the certified copy of the order, through e.mails or fax etc. Thus, the delay of 5 months & 29 days(174 days as per the office report), in filing the appeal which is about 5½ times more than the normal period of limitation, within which the same(appeal) could be filed, was on account of the complete inaction and lack of bonafides, attributable to the applicant/appellant. The cause, set up by the applicant/appellant, regarding the loss of appeal file and Demand Draft and thereafter alleged illness of its Counsel, in the application, for condonation of delay, is not wholly correct. The delay, in filing the appeal was, thus, intentional and deliberate. The applicant/appellant, therefore, failed to prove any sufficient cause, in filing the appeal, after such a long delay of 174 days. Since, no sufficient cause is constituted, from the averments, contained in the application, the delay of 5months and 29 days (174 days as per the office report) , cannot be condoned. The application is, thus, liable to be dismissed. 14. The next question, that arises, for consideration, is, as to whether, even if, sufficient cause is shown, it is obligatory on the Commission, to condone the delay. The answer to this question, is in the negative. In Ram Lal and Ors. Vs. Rewa Coalfields Ltd., AIR 1962 Supreme Court 361, it was held as under:- “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.” 15. It is evident, from the principle of law, laid down, in Ram Lal & Ors.’s case (supra), that even 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, requires the Commission, to take into consideration, all the relevant factors, and it is at this stage, that diligence of the party(s) or its/their bonafides, may fall for consideration. In the instant case, as stated above, it was obligatory upon the applicant/appellant, to take immediate steps, to ensure that the appeal was filed within the stipulated period, as envisaged under Section 15 of the Act. However, the applicant/appellant, just slept over the matter and did not take steps to file the appeal in time. It was, thus, a case of complete lack of bonafides and inaction, on the part of applicant/appellant. The principle of law, laid down in Ram Lal & Others’ case(supra) is fully applicable to the instant case. This is, therefore, not a fit case, in which this Commission should exercise its discretion, in favour of the applicant/appellant, in condoning the delay. 16. The next question, that arises for consideration, is, as to whether, the Commission can decide the appeal, on merits, especially, when it has come to the conclusion, that there is no sufficient cause, for condonation of delay of 5 months & 29 days ( as per the office report 174 days)in filing the same (appeal). The answer to this question, is in the negative, as provided by the Apex Court in State Bank of India Vs B.S.Agricultural Industries (I) II(2009)CPJ 29(SC), while considering the provisions of Section 24A of the Act. Although, the question before the Apex Court, was only with regard to the condonation of delay, in filing the complaint, in the first instance, beyond the period of two years, as envisaged by Section 24A of the Act, yet it (Apex Court) was pleased to observe as under ; “Section 24A of the Act, 1986 prescribes limitation period for admission of a complaint by the Consumer Fora thus: “24A. Limitation period—(1) The District Forum, the State Commission or the National Commission shall not admit a complaint unless it is filed within two years from the date on which the cause of action has arisen. (2) Notwithstanding anything contained in Sub-section (1), a complaint may be entertained after the period specified in Sub-section (1), if the complainant satisfies the District Forum, the State Commission or the National Commission, as the case may be, that he had sufficient cause for not filing the complaint within such period: Provided that no such complaint shall be entertained unless the National Commission, the State Commission or the District Forum, as the case may be, records its reasons for condoning such delay.” It would be seen from the aforesaid provision that it is peremptory in nature and requires Consumer Forum to see before it admits the complaint that it has been filed within two years from the date of accrual of cause of action. The Consumer Forum, however, for the reasons to be recorded in writing may condone the delay in filing the complaint if sufficient cause is shown. The expression, ‘shall not admit a complaint’ occurring in Section 24A is sort of a legislative command to the Consumer Forum to examine on its own whether the complaint has been filed within limitation period prescribed thereunder. As a matter of law, the Consumer Forum must deal with the complaint on merits only if the complaint has been filed within two years from the date of accrual of cause of action and if beyond the said period, the sufficient cause has been shown and delay condoned for the reasons recorded in writing. In other words, it is the duty of the Consumer Forum to take notice of Section 24A and give effect to it. If the complaint is barred by time and yet, the Consumer Forum decides the complaint on merits, the Forum would be committing an illegality and, therefore, the aggrieved party would be entitled to have such order set aside.” 17. The principle of law, laid down, by the Apex Court in State Bank of India’s case(supra), is equally applicable to the filing of an appeal U/s 15 of the Act. In case, this Commission, decides the appeal, on merits, after coming to the conclusion, that it is barred by time, it would amount to committing an illegality, in view of the principle of law, laid down in State Bank of India’s case(supra). 18. For the reasons, recorded above, the application for condonation of delay of 5 months & 29 days (174 days as per the office report), being devoid of merit, must fail, and the same is dismissed. Consequently, the appeal under Section 15 of the Act, is also dismissed, being barred by time, with no order as to costs. 19. Certified Copies of this order be sent to the parties, free of charge. 20. The file be consigned to the Record Room.
| | HON'BLE MRS. NEENA SANDHU, MEMBER | HON'BLE MR. JUSTICE SHAM SUNDER, PRESIDENT | , | |
