Anil Kumar Gupta vs Dilbar Ali Mallick

These First Appeals have been filed by the appellant, Anil Kumar Gupta against the order dated 10.08.2016 & 04.07.2017 of the State Consumer Disputes Redressal Commission, West Bengal (in short 'the State Commission') passed in Complaint No.113/2016, wherein the appellant has been proceeded ex-parte and his written statement has not been taken on record. The appeal against order dated 10.08.2016 was presented before the Circuit Bench of this Commission at Kolkatta and notice was issued in the matter on 20.06.2017. In the meanwhile, the State Commission proceeded with the case and passed the final order ex-parte on 04.07.2017. Against this order of the State Commission, the Appeal No.1717 of 2017 has been filed by the same appellant.

As both these appeals relate to same appellant and against orders passed in same complaint case, they are being decided together.

Heard the learned counsel for both the parties and perused the record. Learned counsel for the appellant stated that notice in first appeal No.972 of 2017 was issued on 20.06.2017 by this Commission and the State Commission should not have proceeded with the case and should not have passed the final order dated 04.07.2017. He further stated that there is a delay of 50 days in filing the First Appeal No.972 of 2017. As the appellant was proceeded ex-parte, so appellant did not have any knowledge of ex-parte order and appellant came to know only when the order was received by the appellant. From the date of knowledge, there is a delay of only 50 days in filing the appeal, which may be condoned on the ground mentioned in the application for condonation of delay. Learned counsel further mentioned that it is now settled law that the Hon'ble Supreme Court has allowed the Consumer Fora to accept the delayed written statements in appropriate cases on suitable terms. Therefore, the order of the State Commission dated 10.08.2016, needs to be set aside and opportunity be granted to the appellant to file the written statement before the State Commission and to take part in the proceedings.

It was further argued by the learned counsel for the appellant that the final order dated 04.07.2016 passed by the State Commission is ex-parte order, which also needs to be set aside as the appellant has not got any opportunity to put forward his case before the trial forum. In any case, when the matter was sub judice before this Commission in respect of the order dated 10.08.2016 passed by the State Commission, the State Commission should not have passed the final order dated 04.07.2017 and the State Commission has exceeded its jurisdiction by passing this final order dated 04.07.2017. On merits, it was stated that conveyance deed was already registered in favour of the respondent and the complaint was filed alleging less area of the conveyed property though the whole property was sold and the price were charged for whole property and not on the per sq.ft. basis. Even then, the State Commission has allowed a payment of Rs.7,46,460/- for less area and compensation of Rs.5,00,000/- and litigation cost of Rs.10,000/-. It was stated that the State Commission has heard only one side of the story and has decided the complaint case. The appellant/opposite party has not got any chance to put forward his arguments on merits. It was finally prayed that both the orders of the State Commission dated 10.08.2016 and 4.7.2017 be set aside and the matter be decided on merits after giving an opportunity to the appellant to file written statement.

On the other hand, learned counsel for the respondent/complainant stated that it is not the case of the appellant that he did not receive any notice. The fact is that appellant has appeared before the State Commission and the State Commission has twice granted time for filing the written statement, however, the opposite party willingly chose not to file the written statement. There is a huge delay of about 9 months in filing the appeal No.972 of 2017 and no convincing reason has been given in the application for condonation of delay for condoning the huge delay.

Coming to the appeal No.1717 of 2017, learned counsel for the respondent stated that there was no stay order passed by this Commission in First Appeal No.972 of 2017 and therefore, the State Commission proceeded with the case and decided the case on merits. On merits, learned counsel stated that the conveyance deed clearly mentions the particular area. The report of the engineer states that the area is less by about 120 sq.ft. as compared to that appearing in the sale deed. Accordingly, the State Commission has allowed the compensation for the less area as well as for mental agony and harassment. As the order of the State Commission has been passed on merits, it cannot be set aside on technical ground.

I have given a thoughtful consideration to the arguments of learned counsel for both the parties and have considered the material on record. First Appeal No.972 of 2017 has been filed with delay of 40 days, as has been reported by the Registry. The appellant has filed application for condonation of delay and it has been stated therein that the delay has occurred due to the fact that the appellant was proceeded ex-parte and then he took time to contact the counsel who took time to prepare appeal and filed the appeal against the impugned order. By the impugned order dated 10.08.2016, the opportunity to file written statement was closed and opposite party was proceeded ex-parte. This has taken away a basic right of the party to contest a case.

Hon'ble Supreme Court in the case of Esha Bhattacharjee vs. Managing Committee of RaghunathpurNafar Academy and Others., (2013) 12 SCC 649, has laid down:-

"From the aforesaid authorities (case laws referred) the principles that can broadly be culled out are:

21.1. (i) There should be a liberal, pragmatic, justice-oriented, non- pedantic approach while dealing with an application for condonation of delay, for the courts are not supposed to legalise injustice but are obliged to remove injustice.

21.2. (ii) The terms "sufficient cause" should be understood in their proper spirit, philosophy and purpose regard being had to the fact that these terms are basically elastic and are to be applied in proper perspective to the obtaining fact- situation.

21.3. (iii) Substantial justice being paramount and pivotal the technical considerations should not be given undue and uncalled for emphasis.

21.4. (iv) No presumption can be attached to deliberate causation of delay but, gross negligence on the part of the counsel or litigant is to be taken note of.

21.5 (v) Lack of bona fides imputable to a party seeking condonation of delay is a significant and relevant fact.

21.6. (vi) It is to be kept in mind that adherence to strict proof should not affect public justice and cause public mischief because the courts are required to be vigilant so that in the ultimate eventuate there is no real failure of justice.

21.7. (vii) The concept of liberal approach has to encapsule the conception of reasonableness and it cannot be allowed a totally unfettered free play.

21.8 (viii) There is a distinction between inordinate delay and a delay of short duration or few days, for to the former doctrine of prejudice is attracted whereas to the latter it may not be attracted. That apart, the first one warrants strict approach whereas the second calls for a liberal delineation.

21.9 (ix) The conduct, behaviour and attitude of a party relating to its inaction or negligence are relevant factors to be taken into consideration. It is so as the fundamental principle is that the courts are required to weigh the scale of balance of justice in respect of both parties and the said principle cannot be given a total go by in the name of liberal approach.

21.10 (x) If the explanation offered is concocted or the grounds urged in the application are fanciful, the courts should be vigilant not to expose the other side unnecessarily to face such a litigation.

21.11. (xi) It is to be borne in mind that no one gets away with fraud, misrepresentation or interpolation by taking recourse to the technicalities of law of limitation.

21.12. (xii) The entire gamut of facts are to be carefully scrutinized and the approach should be based on the paradigm of judicial discretion which is founded on objective reasoning and not on individual perception.

21.13. (xiii) The State or a public body or an entity representing a collective cause should be given some acceptable latitude.

To the aforesaid principles we may add some more guidelines taking note of the present day scenario. They are:

22.1. (a) An application for condonation of delay should be drafted with careful concern and not in a half hazard manner harbouring the notion that the courts are required to condone delay on the bedrock of the principle that adjudication of a lis on merits is seminal to justice dispensation system.

22.2. (b) An application for condonation of delay should not be dealt with in a routine manner on the base of individual philosophy which is basically subjective.

22.3. (c) Though no precise formula can be laid down regard being had to the concept of judicial discretion, yet a conscious effort for achieving consistency and collegiality of the adjudicatory system should be made as that is the ultimate institutional motto.

22.4. (d) The increasing tendency to perceive delay as a non- serious matter and, hence, lackadaisical propensity can be exhibited in a non-challant manner requires to be curbed, of course, within legal parameters."

The Hon'ble Supreme Court in another case N. Balakrishnan Vs. M.Krishnamurthy, (1998) Supp. 1 SCR 403, has laid down the following:-

"11. Rules of limitation are not meant to destroy the right of parties. They are meant to see that parties do not resort to dilatory tactics, but seek their remedy promptly. The object of providing a legal remedy is to repair the damage caused by reason of legal injury. Law of limitation fixes a life-span for such legal remedy for the redress of the legal injury so suffered. Time is precious and the wasted time would never revisit. During efflux of time newer causes would sprout up necessitating newer persons to seek legal remedy by approaching the courts. So a life span must be fixed for each remedy. Unending period for launching the remedy may lead to unending uncertainty and consequential anarchy. Law of limitation is thus founded on public policy. It is enshrined in the maxim Interest reipublicae up sit finis Mum (it is for the general welfare that a period be put to litigation). Rules of limitation are not meant to destroy the right of the parties. They are meant to see that parties do not resort to dilatory tactics but seek their remedy promptly. The idea is that every legal remedy must be kept alive for a legislatively fixed period of time.

A court knows that refusal to condone delay would result in foreclosing a suitor from putting forth his cause. There is no presumption that delay in approaching the court is always deliberate. This Court has held that the words "sufficient cause" Under Section 5 of the Limitation Act should receive a liberal construction so as to advance substantial justice vide Shakuntala Devi Jain V. KuntalKumari, MANU/SC/0335/1968: [AIR 1969 SCR1006 and State of West Bengal Vs. The Administrator, Howrah Municipality, MANU/SC/0534/1971: [1972]2SCR874a.

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 delay the Court should not forget the opposite party altogether. It must be borne in mind that he is a looser and he too would have incurred quiet a large litigation expenses. It would be a salutary guideline that when courts condone the delay due to laches on the part of the applicant the court shall compensate the opposite party for his loss."

Relying on the above authoritative judgments of the Hon'ble Supreme Court, I am inclined to condone the delay on the ground mentioned in the application for condonation of delay at a cost of Rs.40,000/- (rupees forty thousand only) to be paid to the complainant by the appellant.

The pleadings are the foundation of any case and the decision is largely based on the pleadings. From this point of view, the written statement to be filed by the opposite party is also an important document, which facilitates the decision of the complaint on merits. Moreover, Hon'ble Supreme Court in Reliance General Insurance Company Ltd. And another vs. M/s. Mampee Timbers and Hardwares Pvt. Ltd. And another [Civil Appeal No.....of 2017 (D. No.2365 of 2017) decided on 10.2.2017 has allowed the Consumer Fora to accept the delayed written statements in appropriate cases on suitable terms. The relevant portion of the order reads as follows:

"We consider it appropriate to direct that pending decision of the larger bench, it will be open to the concerned Fora to accept the written statement filed beyond the stipulated time of 45 days in an appropriate case, on suitable terms, including the payment of costs, and to proceed with the matter".

Relying on the above judgments of the Hon'ble Supreme Court and in the interest of justice, I deem it appropriate to set aside the order dated 10.8.2016 passed by the State Commission and to allow appellant/opposite party to file written statement within a period of 30 days from the date of this order at a cost of Rs.40,000/- (rupees forty thousand only) to be paid by the appellant to the respondent/complainant. If the written statement is filed within the time given the State Commission shall accept the written statement.

As a consequence of the above order, final order dated 04.07.2017 of the State Commission is also set aside. The State Commission after accepting the written statement of the petitioner shall proceed to decide the complaint afresh as per law.

Based on the above discussion both the appeals are accepted. Both the costs of Rs.40,000/- (rupees forty thousand only) each shall be paid before the State Commission. State Commission would proceed with the case only after the costs have been paid and the State Commission shall have the power to decide the time for payment of costs. Parties to appear before the State Commission on 17.07.2018.