NCDRC

NCDRC

RP/4375/2012

M/S NARNE CONSTRUCTION PVT. LTD. - Complainant(s)

Versus

WG. CDR. V.R. RAJU - Opp.Party(s)

BHAGABATI PRASAD PADHY

17 May 2013

ORDER

NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION
NEW DELHI
 
REVISION PETITION NO. 4375 OF 2012
 
(Against the Order dated 17/12/2009 in Appeal No. 1960/2009 & 1001/2009 of the State Commission Andhra Pradesh)
1. M/S NARNE CONSTRUCTION PVT. LTD.
Represented By its Managing Director, 1,Gunrock Enclave Karakhana,
SECUNDERABAD - 500009
A.P
...........Petitioner(s)
Versus 
1. WG. CDR. V.R. RAJU
S/o Late Sri V.V M. Raju, Sriramnagar Coloney, R/at 6-3-596/15, V.R Coloney, Mehindipatnam,
HYDERABAD
A.P
...........Respondent(s)

BEFORE: 
 HON'BLE MR. JUSTICE J.M. MALIK, PRESIDING MEMBER
 HON'BLE MR. DR. S.M. KANTIKAR, MEMBER

For the Petitioner :BHAGABATI PRASAD PADHY
For the Respondent :D.BHARAT KUMAR & SAYOOJ MOHANDASS M.

Dated : 17 May 2013
ORDER

There is a delay of 977 days in filing the Revision Petition. The Petitioner has moved an application for condonation of delay. The delay has been explained in paras 4, 5 & 6 which are reproduced herein:- . The Honle High Court vide judgment dated 19.4.2012 has dismissed the writ petition on the ground that the petitioner has got the alternative remedy under the Consumer Protection Act, 1986 and granted the petitioner liberty to seek such remedy. The certified copy of the Honle High Court has been received on 20.7.2012. 5. The Petitioner has been in bona fide belief and diligently pursuing the remedy before the Honle High Court and had filed the writ petition immediately on 21.12.2012. Therefore, the petitioner seeks exclusion of time i.e. 22.12.2009 to 20.7.2012 bonafidely spent in pursuing the litigation inadvertently before the Honle High Court. 6. Therefore, the excluding the time of 2 years 7 months and 9 days spent in pursuing the litigation in the Honle High Court, the limitation to file the revision petition expires as on 26.10.2012. The Director of the Petitioner who was to come to sign and verify the petition in the last week of October, fell sick and the petition was sent to Hyderabad for signature and verification. The petition was signed and verified in Hyderabd on 6.11.2012 and was sent to the counsel on the same day which reached 11.11.2012. However, due to renovation of the office of the counsel and Diwali vacation the present petition is being filed on 19.11.2012 and, therefore, there is a short delay of 24 days occurred in filing the present revision petition. 2. The State Commission decided the case on 17.12.2009. The Writ Petition was filed on 21.12.2009. The High Court stayed the order and kept the matter pending till 19.04.2012. We are not satisfied with the explanation given by the Ld. Counsel for the Petitioner. There is no provision in the Consumer Protection Act which provides remedy through a Writ. The Supreme Court in a recent authority reported in M/s Advance Scientific Equipment Ltd. & Anr. Vs. West Bengal Pharma & Photochemical Development Corporation Ltd. (Appeal Civil Nos. 17068-17069/2010 decided on 09.07.2010) has held as under:- We are further of the view that the petitionersventure of filing petition under Article 227 of the Constitution was clearly an abuse of the process of the court and the High Court ought not to have entertained the petition even for a single day because an effective alternative remedy was available to the petitioner under section 23 of the Act and the orders passed by the State Commission did not suffer from lack of jurisdiction. 4. This authority was followed by this Commission in M/s Agari Enterprises Vs. Sesappa Saphaliga & Ors. (RP 3851/2012 decided on 10.12.2013) as well as in Thai Airways International Public Company Ltd. Vs. Gargi Basak 2008 (1) C.P.J. 134 NC. 5. Furthermore, the apex court in a very recent authority reported in Cicily Kallarackal Vs. Vehicle Factory IV (2012) CPJ 1 (SC) 1, was pleased to hold:- espite this, we cannot help but to state in absolute terms that it is not appropriate for the High Courts to entertain writ petitions under Article 226 of the Constitution of India against the orders passed by the Commission, as a statutory appeal is provided and lies to this Court under the provisions of the Consumer Protection Act, 1986. Once the Legislature has provided for a statutory appeal to a higher Court, it cannot be proper exercise of jurisdiction to permit the parties to bypass the statutory appeal to such higher Court and entertain petitions in exercise of its powers under Article 226 of the Constitution of India. Even in the present case, the High Court has not exercised its jurisdiction in accordance with law. The case is one of the improper exercise of jurisdiction. It is no expected of us to deal with this issue at any greater length as we are dismissing this petition on other grounds. 6. Counsel for the Petitioner submits that by virtue of Section 14 of the Limitation Act, delay should be condoned. He has also referred to an authority reported in Lakshmi Engineering Works Vs. PSG Industrial Institute (1995) (3, SCC, 583). He submits that High Court had given him liberty to file the Revision Petition and he just followed the order of the High Court. We are afraid that the order of the High Court is not applicable in these proceedings. Moreover, it cannot be said to be a bona fide dispute. The act has a crystalline clarity. It clearly, specifically and unequivocally provides remedy against the orders passed by the State Commission. It is well settled by the Honle Supreme Court in Ram Lal and Others V. Rewa Coafields Ltd., AIR 1962 Supreme Court 361 that: 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 Section 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 bonafides may fall for consideration; but the scope of the inquiry 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. 7. Similar view was taken in Anshul Aggarwal v. New Okhla Industrial Development Authority, IV (2011) CPJ 63 (SC), Balwant Singh v. Jagidsh Singh & Ors. V (2010) SLT 790 = (2010) CLT 201 (SC) = (Civil Appeal No. 11676 of 2006) decided by the Apex Court on 8.7.2010, Bikram Dass v. Financial Commissioner and Others, AIR 1977 Supreme Court 1221. 8. Petitioner is barred by time and, therefore, we dismiss the same.

 
......................J
J.M. MALIK
PRESIDING MEMBER
......................
DR. S.M. KANTIKAR
MEMBER

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