1.       MA/25/2023 is filed by the Appellant seeking restoration of First Appeal No.458/2019 and recall of the order dated 18^th July, 2019, whereby the Appeal was dismissed for non-prosecution.

2.       Alongwith MA/25/2023, the Appellant has also filed IA/585/2023, an application for condonation of delay.

3.       We have heard the Learned Counsel for the Parties and carefully perused the record.

4.       The ground taken for condonation of delay is that the Appellant was under the false impression that his Advocate has been diligently attending the matter. Subsequently, the nationwide lockdown introduced due to Covid-19, which continued for a long time. Several officers of the legal team of the Appellant Company had left the office during 2019 to 2022. The Appellant Company was unable to follow up the pending cases. In the meantime, the Respondent/Complainant had taken coercive steps to realize the amount as directed by the State Commission. The delay was due to the reasons beyond their control. Learned Counsel submitted that the Appellant has a good case on merits and if the delay is not condoned, they would suffer grave prejudice and injustice. It was further submitted that delay in filing the Appeal was neither intentional nor deliberate.

5.       The application has been drafted in a casual manner and even the Appellant has not mentioned the number of days of delay sought to be condoned. Paras 3 and 4 of the application are relevant, which read as follows:-

“3.        It is submitted that the Appellant was under the false impression that his Advocate has been diligently attending the matter. The appellant was unaware of the non-appearance of his Advocate before the Hon’ble Commission on the date of the hearing and there was no communication by the said Advocate. Subsequently, the nationwide lockdown was introduced due to the Covid-19 pandamic which continued for a long time. Further, several officers of the legal team of the appellant company have left during the period from 2019 and 2022. The appellant company is unable to follow up on the pending cases. Now a new legal team has been formed which slowly has taken control of the entire affairs of the company.

4.           In the meantime, the respondent has taken coercive steps to realise the amount as directed by the Hon’ble State Commission and in the said process, the subject flat along with 8 more flats fixed for auction on 23-1-2023. Subsequently, a public notice for auction of immovable properties of the appellant was brought for auction sale and paper publication was made in the Tamil daily ‘Makkal Kural’ fixing the auction date 23-1-2023 at about 3 pm. It came to the knowledge of the appellant until very recently and thereafter the legal team of the appellant started to ascertain the status of the appeal through their newly engaged Advocate. Finally, it came to the knowledge of the appellant that the appeal was dismissed for non-prosecution on 18-1-2019. It is submitted that the case was not decided on merits and was dismissed in default of non-appearance.

6.       From the above explanation, it is seen that the Appellant was under the false impression that his Advocate had been diligently attending to the matter. The Appeal was dismissed for non-prosecution on 18^th July, 2019 and the application for restoration has been filed on 13^th January, 2023. It is very surprising that from 18^th July, 2019 till 13^th January, 2023 the Appellant did not bother to know about the status of the Appeal filed by them. Wrong impression of the Appellant, who is a Private Limited Company, cannot be said to be a ground to condone the inordinate delay of 1273 days. According to the Appellant, the delay occurred due to mistake of their Advocate. The Appellant has not mentioned in the application as to what action they have taken against the erring Advocate. Further the Appellant stated that due to circumstances beyond their control the present Appeal could not be filed within time. The Appellant has not mentioned as to what were the compelling circumstances beyond their control which prevented them to file the Appeal in time.

7.       Condonation of delay is not a matter of right and the applicant has to set out any case with sufficient reasons which prevented to approach this Commission within the time given to file the Appeal.   The Hon’ble Supreme Court in the matter of Ram Lal and Ors. Vs. Rewa Coalfields Limited, AIR 1962 Supreme Court 361 has held as under:

“It is, however, necessary to emphasise 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 condition precedent for the exercise of the discretionary jurisdiction vested in the Court by Section 5. If sufficient cause is not proved nothing further has to be done; the application for condoning delay 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.”

8.       The burden is on the applicant to show that there was sufficient cause for the delay.  The expression ‘sufficient cause’ has been discussed and defined by the Hon’ble Supreme Court in the case of Basawaraj&Anr. Vs. The Spl. Land Acquisition Officer, 2013 AIR SCW 6510, as under:

“Sufficient cause is the cause for which defendant could not be blamed for his absence.  The meaning of the word “sufficient” is “adequate” or “enough”, inasmuch as may be necessary to answer the purpose intended. Therefore, the word “sufficient” embraces no more than that which provides a platitude, which when the act done suffices to accomplish the purpose intended in the facts and circumstances existing in a case, duly examined from the view point of a reasonable standard of a cautious man.  In this context, “sufficient cause” means that the party should not have acted in a negligent manner or there was a want of bonafide on its part in view of the facts and circumstances of a case or it cannot be alleged that the party has “not acted diligently” or “remained inactive”.  However, the facts and circumstances of each case must afford sufficient ground to enable the Court concerned to exercise discretion for the reason that whenever he court exercises discretion, it has to be exercised judiciously. The applicant must satisfy the Court that he was prevented by any “sufficient cause” from prosecuting his case, and unless a satisfactory explanation is furnished, the Court should not allow the application for condonation of delay.  The court has to examine whether the mistake is bonafide or was merely a device to cover an ulterior purpose. (See: Manindra Land and Building Corporation Ltd.  V. Bhootnath Banerjee &Ors, AIR 1964 SC 1336; LalaMatadin V. A.Narayanan, AIR 1970 SC 1953; Parimal V. Veena alias Bharti AIR 2011 SC 1150 L2011 AIR SEW 1233); and ManibenDevraj Shah V. Municipal Corporation of Brihan Mumbai, AIR 2012 SC 1629: (2012 AIR SCW 2412).

It is a settle legal proposition that law of limitation may harshly affect a particular party but it has to be applied with all its rigour when the statute so prescribes.  The Court has no power to extend the period of limitation on equitable grounds.  “A result flowing from a statutory provision is never an evil.  A Court has no power to ignore that provision to relieve what it considers a distress resulting from its operation.”  The statutory provision may cause hardship or inconvenience to a particular party but the Court has no choice but to enforce it giving full effect to the same.  The legal maxim “dura lexsedlex” which means “the law is hard but it is the law”, stands attracted in such a situation.  It has consistently been held that, “inconvenience is not” a decisive factor to be considered while interpreting a statute.

………..

The law on the issue can be summarized to the effect that where a case has been presented in the court beyond limitation, the applicant has to explain the court as to what was the “sufficient cause” which means an adequate and enough reason which prevented him to approach the court within limitation. In case a party is found to be negligent, or for want of bona fide on his part in the facts and circumstances of the case, or found to have not acted diligently or remained inactive, there cannot be a justified ground to condone the delay.  No court could be justified in condoning such an inordinate delay by imposing any condition whatsoever.  The application is to be decided only within the parameters laid down by this court in regard to the condonation of delay.  In case there was no sufficient cause to prevent a litigant to approach the court on time condoning the delay without any justification, putting any condition whatsoever, amounts to passing an order in violation of the statutory provisions and it tantamounts to showing utter disregard to the legislature”. 

9.       Also in the case of “Anshul Aggarwal Vs. New Okhla Industrial Development Authority (2011) 14 SCC 578, the Hon’ble Supreme Court has warned the Commissions to keep in mind while dealing with such applications the special nature of the Consumer Protection Act.  The Hon’ble Supreme Court has held as under:

“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."

10.       In a recent judgment the Hon’ble Supreme court observed that condonation of delay would depend on the background of each and every case; and routine explanation would not be enough. The Hon’ble Supreme Court in University of Delhi vs. Union of India & Ors. in Civil Appeal Nos.9488­9489 of  2019 (Arising out of SLP (Civil) Nos.5581­5582 of 2019) decided on 17.12.2019  has held as under: -

“The consideration for condonation of delay would not depend on the status of the party namely the Government or the public bodies so as to apply a different yardstick but the ultimate consideration should be to render even­ handed justice to the parties. Even in such case the condonation of long delay should not be automatic since the accrued right or the adverse consequence to the opposite party is also to be kept in perspective. In that background while considering condonation of delay, the routine explanation Page 24 of 34would not be enough but it should be in the nature of indicating “sufficient cause” to justify the delay which will depend on the backdrop of each case and will have to be weighed carefully by the Courts based on the fact situation

                 …….

That apart when there is such a long delay and there is no proper explanation, laches would also come into play while noticing as to the manner in which a party has proceeded before filing an appeal.”

(emphasis supplied)

11.     Hon’ble Supreme Court in Post Master General and others vs. Living Media India Ltd. and another (2012) 3 Supreme Court Cases 563 held  that  the  departments are not absolved from observing the period of limitation prescribed by the statute. Hon’ble Supreme Court has held as under: -

“27. It is not in dispute that the person(s) concerned were well aware or conversant with the issues involved including the prescribed period of limitation for taking up the matter by way of filing a special leave petition in this Court. They cannot claim that they have a separate period of limitation when the Department was possessed with competent persons familiar with court proceedings. In the absence of plausible and acceptable explanation, we are posing a question why the delay is to be condoned mechanically merely because the Government or a wing of the Government is a party before us.

28. Though we are conscious of the fact that in a matter of condonation of delay when there was no gross negligence or deliberate inaction or lack of bonafide, a liberal concession has to be adopted to advance substantial justice, we are of the view that in the facts and circumstances, the Department cannot take advantage of various earlier decisions. The claim on account of impersonal machinery and inherited bureaucratic methodology of making several notes cannot be accepted in view of the modern technologies being used and available. The law of limitation undoubtedly binds everybody including the Government.

29.  In our view, it is the right time to inform all the government bodies, their agencies and instrumentalities that unless they have reasonable and acceptable explanation for the delay and there was bonafide effort, there is no need to accept the usual explanation that the file was kept pending for several months/years due to considerable degree ofprocedural red-tape in the process. The government departments are under a special obligation to ensure that they perform their duties with diligence and commitment. Condonation of delay is an exception and should not be used as an anticipated benefit for government departments. The law shelters everyone under the same light and should not be swirled for the benefit of a few.

 30. Considering the fact that there was no proper explanation offered by the Department for the delay except mentioning of various dates, according to us, the Department has miserably failed to give any acceptable and cogent reasons sufficient to condone such a huge delay.”

12.     In view of the above, we find no sufficient ground to condone the inordinate delay of 1273 days. The application for condonation of delay IA/585/2023 is accordingly dismissed. As a consequence, the restoration application MA/25/2023 is also dismissed being barred by limitation.