JUSTICE J. M. MALIK, PRESIDING MEMBER

1.     The petitioner has got 62000 members.  Club Mahindra Holidays Membership is a holiday product which entitles its members to avail 7 days of holidays every year, in any of the resorts of Club Mahindra in India and abroad for the allotted season.  The complainant, Basant Kumar H. Khandelwal purchased a Club Mahindra Holidays Membership.  The complainant also paid certain amounts to the petitioner.  Thereafter, the complainant was not satisfied with the services and he filed a complaint against the petitioner/opposite party.

2.     The District Forum, Akola vide its order dated 31.3.2009 allowed the complaint of Basant Kumar Hira Lal ji Khandelwal and directed the petitioner-opposite party, Mahindra Holidays Resort India Ltd. not to demand enhanced annual maintenance charges of Rs.30,585/-, refund the amount of Rs.1,75,000/- towards membership fees with 9% interest from 20.5.2008 and pay Rs.10,000/- for compensation and Rs.1,000/- cost of the complaint.

3.     Aggrieved by that order, an appeal was preferred before the State Commission.  The State Commission held that the case was barred by time.  Aggrieved by that order, this revision petition has been filed. 

4.     In the application for condonation of delay submitted before the State Commission, the following averments were made.  Copy of impugned judgment and order was required to be sent to Chennai head office, where the company of the petitioner is situated, for obtaining instructions.  Secondly, the case papers were in Marathi language and officials of head office at Chennai could not understand Marathi.  Translation into English was required which consumed a considerable amount of time resulting into delay in filing the appeal in question.  The State Commission came to the conclusion that translation from Marathi to English could have been done within a week. 

5.     On behalf of the petitioner, Mumbai High Court authority reported in Ashishkant Prabookant Sen & Ors. Vs. Jagoba S/o Dashrath Jibhkate & Ors. 2010(1) ALL MR 139 was cited.  In that case, there was delay of six and a half months.  Mumbai High Court had condoned the said delay.  Again, another authority by the Hon’ble Supreme Court in the case of State of J & K vs. Mohd. Maqbool Sufi and Ors. AIR 2010 SC 1445 wherein a delay of 97 days was condoned.  In these authorities, it was held as the appellant was required to obtain approval by sending the case papers through different departments, there was just and reasonable ground to condone the delay. 

6.     However, the State Commission observed that these authorities were not applicable to this case because the petitioner had not disclosed the details as to when the case papers were sent and when the approval was obtained.

7.     We have heard learned counsel for the parties.  It was brought to our notice that another connected case was pending before another bench of this Commission where there was delay of 104 days.   That case Mahindra Holidays & Resorts India Ltd. vs. Vasantkumar H. Khandelwal and another,  in revision petition No. 1848 of 2012 was decided on 21.5.2012 and delay was not condoned. 

8.     We are of the considered view that the facts of that case were different.  Firstly, there was delay of 104 days, secondly the amount involved in the case was meager.  We are of the considered view that law cited before the State Commission reported in State of J & K. & Ors. Vs. Mohd. Maqbool Sufi and Ors. 2009 (15) SCC 177 is applicable to this case because the delay of 70 days under the circumstances is condonable subject to payment of costs.  In the case of State of J. & K. & Ors. Vs. Mohd. Maqbool Sufi and Ors. (supra), the Supreme Court held as under:-

“It is not in dispute that there has been a delay of 97 days in filing the appeal at the instance of the State of Jammu and Kashmir.  It is well settled that for the purpose of filing an appeal, the file has to be routed through different departments of the State which require some time to take a final decision whether the letters patent appeal shall be filed against the order of the learned Single Judge.

That being the position, we set aside the impugned order and restore the letters patent appeal to its original number…”

The Supreme Court in the case of N. Balakrishnan vs. M. Krishnamurthy 1998 (7) SCC 123 held:-

“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.  It would be a salutary guideline that when courts condone the delay due to laches on the party of the applicant, the court shall compensate the opposite party for his loss.”

Accordingly, we accept the revision petition, condone the delay, restore the appeal before the State Commission, subject to the petitioner depositing Rs.10,000/- in the Consumer Legal Aid Account of this Commission and will further pay a sum of Rs.5,000/- to the respondent besides Rs.10,000/- as litigation charges which he has already paid to him.  The parties are directed to appear before the learned State Commission on 22.11.2012.

The revision petition stands disposed of.