Per Justice Sham Sunder , President This appeal is directed against the order dated 11.03.2011, rendered by the District Consumer Disputes Redressal Forum-II, U.T. Chandigarh (hereinafter to be referred as the District Forum only), vide which it accepted the complaint of the complainant and directed OP No.1(appellant) as under ; i)Refund the entire amount deposited by the complainant i.e. Rs.3,41,028/-. No deduction of the statutory charges for cancellation have to be borne by him either. ii) Pay Rs.40,000/- as damages to the complainant for the harassment caused to him ii)Pay Rs.7,000/- to the complainant as costs of litigation. This order be complied with by OP No.1 within 30 days from the date of receipt of copy of the order, failing which, it would be liable to pay the entire amount of Rs.3,81,028/- (Rs.3,41,028/- + Rs.40,000/-) with interest @ 18% per annum from the date of the order till actual payment, besides costs of litigation. 2. The complainant(now respondent No.1) was working as Assistant General Manager in NABARD, Jalandhar. He booked one LTC tour through OP NO.1, for Chandigarh-Delhi-Chennai-Port Blair-Chennai-Delhi from 28.01.2010 to 01.02.2010, for himself, and his family. The complainant gave two cheques dated 29.12.2009 and 31.12.2009 for Rs.2,41,028/- and Rs.1,00,000/- respectively. The total amount of cheques comes to Rs..3,41,028/-, which were duly encashed by OP No.1. In lieu of the aforesaid amount of Rs.3,41,028/-, OP No.1 issued him printout of tickets of Kingfisher Airlines MSMUBE. It was stated that, to the utter surprise of the complainant, OP No.1, later on, cancelled the tickets, without his consent. When the complainant contacted OP No.1, he was assured that he would get an equivalent package, from the Indian Airlines, in lieu of the cancelled tickets, for which, he gave his consent. It was further stated that the complainant was issued printout of Indian Airlines Tickets for 28.01.2010, bearing Airline Confirmation No.Nacil Indian Airlines RBZMAS, but some seats were in the waiting list. It was further stated that, on the request of the complainant, new tickets were issued for 22.01.2010, bearing Airlines Confirmation number as Nacil Indian Airlines RBZMAS. It was further stated that the complainant himself obtained the booking slips, from the Indian Airlines office, at Chandigarh. He came to know that the booked tickets had cost Rs.1,95,100/-. When the complainant enquired about the excess balance amount of Rs.1,45,928/- from OP NO.1, it neither gave any satisfactory reply, nor refunded the amount. Thereafter, the complainant sent letter dated 18.1.2010 to OP No.1 and requested for cancellation of the tickets and sought refund of Rs.3,41,028/-, by deducting the cancellation charges, as per the Rules, but OP No.1, did not pay any heed, despite of service of legal notice dated 4.2.2010. It was further stated that the aforesaid acts of OP NO.1, amounted to deficiency, in rendering service, and 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. 3. OP No.1, was duly served, but no legally authorized representative on its behalf, put in appearance, hence, it was proceeded against ex parte vide order dated 7.5.2010. 4. Initially, OP NO.2 appeared through Sh.R.K.Sharma, Advocate, but, subsequently, it remained absent, and hence, it was proceeded against ex parte vide order dated 26.8.2010. 5. OP No.3, in its reply, denied that it received any payment from the complainant. It was stated that on 22.12.2009, OP No.1, the agent of the complainant created the PNRs on their reservation system for travel from 28.1.2010 & 01.02.2010, but the process of booking confirmed tickets, was only completed when the passenger/his travel agent makes the payment and a confirmed ticket is issued by the concerned Airlines. It was further stated that the mere creation of PNR by the agent, on the system, does not entitle the passenger, to avail of the services of the said Airlines. It was denied that there was any cancellation of the tickets as the same were never booked. It was further stated that OP No.3 was neither deficient, in rendering service, nor indulged into unfair trade practice. The remaining averments, were denied, being wrong. 6. OP NO.4, in its reply, stated that the complainant could not avail of LTC fare, because he himself cancelled his bookings, vide communication dated 18.1.2010. It was further stated that there was no deficiency, in rendering service, on the part of OP NO.4, nor it indulged into unfair trade practice. 7. The parties led evidence, in support of their case. 8. After hearing the Counsel for the parties, and, on going through the evidence and record of the case, the District Forum passed the order, in the manner, referred to, in the opening para of the instant order. 9. Feeling aggrieved, the instant appeal, was filed by the appellant/ OP NO.1. 10. Alongwith the appeal, an application for condonation of delay of 213 days as per the applicant/appellant (195 days as per the office report), was filed. It was stated, in the application, that the applicant/appellant had no knowledge of the pendency of the complaint, or passing of the final order therein, by the District Forum concerned. It was further stated that the proprietor of OP NO.1, had not received the notice/summons sent by the District Forum, nor received copy of the final order dated 11.3.2011. It was further stated that the reports of refusal and service, made by the Process Serving Agency, were procured one. It was further stated that the applicant/appellant came to know of the order dated 11.3.2011, when she received summons for disposal of the complaint, for appearance in the District Forum on 30.9.2011. It was further stated that , as such, there was sufficient cause for condonation of delay of 213 days. 11. We have heard the Counsel for the applicant/appellant, and have gone through the record, carefully. 12. The first question, that arises for consideration, is, as to whether, there is sufficient cause for condonation of delay of 213 days, as per the applicant/appellant(195 days as per the office report), in filing the appeal under Section 15 of the Act. It was held inSmt.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.” 13. 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.” 14. Keeping in view the principle of law, laid down, in the aforesaid cases, now let us see, 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 grounds taken up by the applicant/appellant, in the application, for condonation of delay are that, it never came to know of the pendency of the proceedings, before the District Forum, nor was it served with any notice/summons, nor it was aware of passing of the final order therein, nor copy of the order dated 11.3.2011 was received by it and the reports of service and refusal were procured one. It is evident from record of the District Forum that OP No.1 was duly served for 7.5.2010, but neither the Manager of the same, nor any authorized representative on its behalf, put in appearance. Accordingly OP NO.1 was proceeded against exparte by the District Forum. Under these circumstances, it could not be said that OP NO.1 was not aware of the pendency of the complaint, before the District Forum. Once it was duly served, it was its duty, to authorize a person, to appear on its behalf, or engage an advocate, to put in appearance, on its behalf, before the District Forum. The absence of OP NO.1 on 7.5.2010, before the District Forum, after due service, was, therefore, intentional and deliberate. When the final order dated 11.3.2011, was passed by the District Forum, in the complaint, certified copy of the same was sent to the Manager/proprietor of OP No.1. There is report of the Process Server dated 29.3.2011, that he went to SCO No.103-104 Sector 34A, Chandigarh, address of OP NO.1, mentioned in the array of the OPs, but its authorized representative, refused to accept the certified copy of the order dated 11.3.2011. This report was made by the Process Server, in the due discharge of his official duties. Nothing could be brought, on record by OP No.1, to rebut this fact. Since, the authorized representative of OP No.1 refused to accept the certified copy of the final order dated 11.3.2011, it could be said that it was duly served. After coming to know of passing of the order dated 11.3.2011, on 29.3.2011, the proprietor of OP No.1, took the things very lightly. The delay of 213 days, which is beyond 7 times, more than the normal period of filing an appeal U/s 15 of the Act, was on account of the complete inaction and lack of bonafides, attributable to the applicant/appellant. The cause, set up by the applicant/appellant, in the application, for condonation of delay, could not be said to be such, as was beyond its control, which prevented it from filing the appeal in time. 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 213 days (as per the office report 195 days). Since, no sufficient cause is constituted, from the averments , contained in the application, the delay of 213(as per the office report 195 days) cannot be condoned. The application is, thus, liable to be dismissed. 15. 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.” 16. 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 or its bona-fides, may fall for consideration. In the instant case, even after due service in the complaint for 7.5.2010, OP No.1 did not bother about the pendency of complaint. Its intention, was, thus, right from the very beginning was to evade the proceedings in the complaint. Even when the Process Server went to supply certified copy of the final order dated 11.3.2011, passed in the complaint, its duly authorized representative refused to receive the same. The attitude of the Manager/authorized representative, right from the very threshold, was highly defiant. It was, thus, a case of complete lack of bonafides and inaction, on the part of OP No.1. OP No.1 did not conduct itself with due care and diligence. 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. 17. 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 213 days ( as per the office report 195 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.” 18. 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). 19. For the reasons, recorded above, the application for condonation of delay of 213 days(as per the office report 195 days), 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. 20. Certified Copies of this order be sent to the parties, free of charge. 21. The file be consigned to the Record Room.
| | HON'BLE MRS. NEENA SANDHU, MEMBER | HON'BLE MR. JUSTICE SHAM SUNDER, PRESIDENT | HON'BLE MR. JAGROOP SINGH MAHAL, MEMBER | |
