Chandigarh

StateCommission

A/296/2017

Parsvnath Developers Ltd. - Complainant(s)

Versus

Vikas Nijhawan - Opp.Party(s)

Ashwani Talwar, Adv.

16 Apr 2018

ORDER

STATE CONSUMER DISPUTES REDRESSAL COMMISSION,

U.T., CHANDIGARH

 

First Appeal No.	:	296 of 2017
Date of Institution	:	30.11.2017
Date of Decision	:	16.04.2018

 

Parsvnath Developers Limited, A Company incorporated under the provisions of the Companies Act, 1956, having its Registered Office at Parsvnath Metro Towers, Near Shahdara Metro Station, Shahdara, Delhi-110032, through its Authorized Signatory.

……Appellant/Opposite Party

V e r s u s

1. Mr.Vikas Nijhawan s/o Sh.R.K.Nijhawan r/o H.No.2068, Sector 71, SAS Nagar, Mohali-160071.

2. Mrs.Madhulika w/o Sh.Vikas Nijhawan r/o H.No.2068, Sector 71, SAS Nagar, Mohali-160071.

Through GPA holder Mr.Ravinder Kumar Bajaj s/o Sh.Jiwan Ram Bajaj, r/o Flat No.304, Himalaya GHS, GH-03, Sector 23, Panchkula Haryana.

              .... Respondents/Complainants

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

BEFORE:         JUSTICE JASBIR SINGH (RETD.), PRESIDENT.

                        MR. DEV RAJ, MEMBER.

                        MRS. PADMA PANDEY, MEMBER

 

Argued by:       Sh.Aftab Singh Khera, Advocate for the applicant/ appellant.

                        Sh.Ravinder Pal Singh, Advocate for the respondents.

 

PER JUSTICE JASBIR SINGH (RETD.), PRESIDENT

                When filing this appeal against the order dated 06.06.2017 passed by the District Forum-II, U.T., Chandigarh (in short the Forum), in consumer complaint bearing no.975 of 2016, the applicant/appellant has also filed an application to condone delay of 123 days i.e. more than four months, in filing the same (appeal). In the application, it is stated that impugned order was passed by the Forum, on 06.06.2017. Order was passed in the presence of Counsel for both the parties. As per averments made in this application, certified copy of the order impugned was received by the applicant on 30.06.2017. Statutory period to file appeal against the said order came to an end on 30.07.2017. It is further stated that copy of the order impugned, was, thereafter, sent to the Legal Department of the applicant, located at Delhi, so that necessary steps could be initiated for filing appeal, before this Commission. The said Legal Department, directed the Counsel, who conducted proceedings before the Forum, to send all papers to the said Office. Those papers were handed over by the Counsel concerned, to the Office of the applicant, at Chandigarh, on 05.08.2017. After discussion on 10.09.2017, decision was taken to file an appeal. Even thereafter, it was not filed. Further time was taken to engage Counsel.  The Counsel who conducted the proceedings on behalf of the applicant, was contacted by the applicant on 05.10.2017. The said Counsel sent the necessary papers alongwith copy of the order impugned to Delhi Office of the applicant on 15.10.2017. Thereafter, the present appeal was filed on 30.11.2017. Application is accompanied by an affidavit of General Manager-CRM of the Company.

                The averments made in the application and also in the affidavit does not inspire any confidence. Rather those are vague. No explanation, whatsoever, has been given, as to why, huge delay was taken to send papers from Chandigarh to Delhi Office of the applicant; why further time was unnecessarily consumed by the Legal Team of the applicant at Delhi; and why further time was spent for sending papers from Delhi Office to Chandigarh. These days, all communications are addressed by the Companies through electronic mode. Promptness should have been shown to complete the entire process within short span of time. However, it was not so done. It was also not brought to the notice of this Commission, as to at whose end, such a huge delay was caused, in filing the appeal and that any action was taken against the erring officials or not. Nothing is explained in the application/affidavit. The applicant/appellant did not act, with due diligence, resulting into delay of 123 days, in filing the appeal, which is about more than four months, beyond the prescribed period of limitation. The cause set up by the applicant/appellant, in the application, for condonation of delay, could not be said to be plausible.  The delay, in filing the appeal was, thus, intentional, willful and deliberate. The Hon’ble Supreme Court in Sanjay Sidgonda Patil Vs. Branch Manager, National Insurance Co. Ltd. & Anr., Special Leave to Appeal (Civil) No. 37183 of 2013, decided on 17.12.2013, under similar circumstances, had refused to condone the delay of even 13 days, finding no sufficient cause to do so. In the present case also, since, no sufficient cause is constituted, from the averments, contained in the application, the delay of 123 days, cannot be condoned. The application is, thus, liable to be dismissed.

2.   Now the question, that arises for consideration, is, as to whether, this 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 123 days, in filing the same (appeal).  The answer to this question, is in the negative, in view of principle of law laid down by the Apex Court in State Bank of India Vs B.S. Agricultural Industries (I) II (2009) CPJ 29 (SC). The question before the Apex Court, was 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. The 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 complainants 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.”

                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, under Section 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).

3.         For the reasons recorded above the application for condonation of delay, 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.
4.         Certified copies of this order, be sent to the parties, free of charge.
5.         The file be consigned to Record Room, after completion

 

Pronounced.

16.04.2018

Sd/-

 [JUSTICE JASBIR SINGH (RETD.)]

PRESIDENT

 

 

Sd/-

 (DEV RAJ)

MEMBER

 

 

Sd/-

 (PADMA PANDEY)

        MEMBER

 

 

Rg.