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Judgment
THIS appeal takes exception to the impugned order dated 19.12.2013 passed by the Maharashtra State Consumer Disputes Redressal Commission, Mumbai in complaint case No. CC/12/85 whereby the State Commission held the appellant/opposite party deficient in service and passed the following order in the consumer complaint filed by the respondents/complainants: - - "(i) Complaint is partly allowed.
(ii) The Opponents are directed to pay an amount of 5,00,000/ - as per Clause 2 of the agreement to the Complainant.
i. The Opponents are directed to handover the office for the Complainant Society as per clause 14(a) of the agreement or alternatively pay an amount of 19,20,000/ - (@ 12,000/ - per sq.ft.) as per market value.
(iv) The Opponents are directed to pay costs of Rs. 30,000/ - to the Complainant Society.
(v) The Opponents are directed to comply this order within a period of two months, failing which the amount will carry interest @9% per annum till its realization."
Aggrieved of the aforesaid order, the OPs/appellants have now challenged the same by filing the present appeal. Along with the appeal, the appellants have also filed an application seeking condonation of delay of 389 days in preferring this appeal beyond the period prescribed under the Consumer Protection Act, 1986.
WE have perused the application and heard Shri Ashutosh Marathe, Advocate appearing for the appellants in respect of the request for condonation of delay in filing the appeal.
IT is submitted by the appellants that the impugned order dated 19.12.2013 was dispatched on 27.12.2013 and was received by the appellants on 1.1.2014. Since the appeal came to be filed on 23.1.2015, there is a delay of 389 days which according to the appellants has been caused due to inadvertence and is unintentional. Reasons for the delay in question are submitted by the appellants in paras 5, 6 and 7 of their application which we consider it fair and just to reproduce, thus: - - "5. That the appellant/Ops did not challenge the Order since they wanted to comply with the financial part of the Order and since they had already complied with the other part of the Order directing them to hand over society office to the Respondent/Complainant. Instead of accepting the contention of the Appellants/Ops, the Respondent/Complainant have proceeded with filing of execution applications; and aggrieved by the said devious act on the part of the Respondent/Complainant, the present appeal has been filed.
That, after receipt of the order, the Appellant/Ops tried to reason out with the Respondent/Complainant that the Society Office had already been given to them and that it was in possession of the Respondent/Complainant for the past 8 years and the Appellants/Ops kept hoping that the Respondent/Complainant society shall accept the argument of the Appellant/Ops since the Appellant/Ops and the Respondent/Complainant - both have copies of the Plan duly approved by the Municipal Authorities which clearly shows demarcated area for the Society office whereat the Society office is actually existing.
However, the Respondent/Complainant did not accept the argument of the Appellant/Ops and proceeded with filing of execution application. Since the respondent/complainant has filed execution applications including an application filed under Section 27 of the Consumer Protection Act, 1986 demanding imprisonment of the Appellant/Ops, the appellant/Ops are left with no choice but to challenge the impugned order dated 19.12.20213."
Elaborating the reasons for the delay in filing their appeal, the appellants have stated that they were quite positive since they are in possession of compelling the evidence of having given possession of the society office to the respondent/complainant, they will be able prevail upon the respondent/complainant to put an end to this litigation and hence decided to take up the issue with the respondent/complainant instead of preferring an appeal before the National Commission. It is further stated by the appellants that they were in two minds because of different opinions given by the Advocate whom they had consulted regarding filing of an appeal to challenge the impugned order. It is further stated by the appellants that because of the divergent views in this regard, they decided to seek opinion of Barrister J.M. Baphna whom the appellants trusted very much but the aid Barrister Baphna was not available in Mumbai because of relocation to Satara and having got affected by various ailments on account of which he was unable to travel to Mumbai without being accompanied by some other family member. In view of this, the appellants had decided to continue their talks with the respondent/complaint so that they were spared the trouble of getting into another round of litigation by filing an appeal. However, eventually when the respondent/complainant was not willing to concede the point put forth by the appellants, the appellants eventually decided to file the appeal in question after meeting with Barrister Baphna which could be possible only in the 2nd week of January, 2015 and the appeal was filed soon thereafter on 23.1.2015 and thus there was delay of 359 days beyond the prescribed period in filing an appeal which was beyond the control of the appellants and for reasons stated in their application, this "unintentional and inadvertent" delay has been sought to be condoned.
LEARNED counsel for the appellants has submitted that the appellants have a good case on merits and as such the delay in question deserves to be condoned since it took place in the circumstances beyond the control of the appellants and in any case, the delay was neither intentional nor deliberate.
IT is well -settled that "sufficient cause" for condoning the delay in each case is a question of fact. In " Ram Lal and Ors. v. Rewa Coalfields Ltd., : AIR 1962 Supreme Court 361", the Hon''ble Supreme Court has observed: - - "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."
In the case of " R.B. Ramlingam v. R.B. Bhavaneshwari, : 2009 (2) Scale 108 ", it has been observed: - -
"We hold that in each and every case the Court has to examine whether delay in filing the special appeal leave petitions stands properly explained. This is the basic test which needs to be applied. The true guide is whether the petitioner has acted with reasonable diligence in the prosecution of his appeal/petition."
IN another case of " Oriental Aroma Chemical Industries Ltd. v. Gujarat Industrial Development Corporation reported in : (2010) 5 SCC 459" the Hon''ble Supreme Court after exhaustively considering the case law on the aspect of condonation of delay has observed as under: - - "We have considered the respective submissions. The law of limitation is founded on public policy. The legislature does not prescribe limitation with the object of destroying the rights of the parties but to ensure that they do not resort to dilatory tactics and seek remedy without delay. The idea is that every legal remedy must be kept alive for a period fixed by the legislature. To put it differently, the law of limitation prescribes a period within which legal remedy can be availed for redress of the legal injury. At the same time, the courts are bestowed with the power to condone the delay, if sufficient cause is shown for not availing the remedy within the stipulated time.
The expression "sufficient cause" employed in Section 5 of the Indian Limitation Act, 1963 and similar other statutes is elastic enough to enable the courts to apply the law in a meaningful manner which sub serves the ends of justice. Although, no hard and fast rule can be laid down in dealing with the applications for condonation of delay, this Court has justifiably advocated adoption of a liberal approach in condoning the delay of short duration and a stricter approach where the delay is inordinate - Collector, Land Acquisition, Anantnag v. Mst. Katiji : (1987)2 SCC 107, N. Balakrishnan v. M. Krishnamurthy : (1998) 7 SCC 123 and 10 Vedabai v. Shantaram Baburao Patil : (2001) 9 SCC 106 ".
IN the present case, the only reason or explanation given by the appellants regarding the inordinate delay of 389 days is that they were in two minds regarding the filing of the appeal and could not take a decision in this regard thereby leading to the delay in question. This indecisiveness, in our considered opinion, cannot be regarded as "sufficient cause" which could justify the inordinate delay of 389 days. We may note that the appellants became aware of the adverse order in question right from 1.1.2014 according to their own admission. Even if they were not clear as to which advice from their Advocates should be accepted in regard to filing of the appeal, they should have taken the legal advice from whomsoever they wanted to but without losing so much time. We may also note that the appellants remained absent before the State Commission and hence the State Commission was constrained to proceed ex parte against them and decided the complaint of the respondent after considering the evidence adduced by the complainant along with the notes of arguments filed by the respondent in the matter. The observations of the State Commission, while proceeding ex parte against the appellants, are significant and may be reproduced thus: - - "(3) The complaint was registered as Complaint No. 85/2012 on 17/04/2012 and the Opponents were issued notice before admission. Said notice was returned back with an endorsement "unclaimed". Complaint was admitted on 26.11.2012. After the admission again the notice was issued to the Opponents. However, the notice returned back with an endorsement "not claimed". The Complainant had filed a service affidavit under section 28 -A of the Consumer Protection Act, 1986.
(4) As the Opponents remained absent though duly served, they were proceeded ex -parte and the Complainant was directed to file affidavit in evidence as per the provisions of Section 13(2)(b)(ii) r/w 13(4) of the Consumer Protection Act, 1986. They were directed to serve the copy of the same to the Opponents well in advance. The Complainant Society filed their evidence on affidavit of one Mr. Khushi N. Ganwani along with pursis closing their side of evidence. Complainants were directed to file brief notes of arguments under Regulation 13(2) of the Consumer Protection Regulations 2005 and accordingly they have filed brief notes of argument."
Thus we have no manner of doubt in our mind that rather than dealing with their case diligently and on priority, the appellants continued to be casual and careless in their approach while challenging the impugned order against them. The explanation now offered by them is just an eye wash and nothing but a sham in the name of an explanation which could justify the delay on their part. We are quite conscious of the fact that while considering an application for condonation of delay, we need to adopt a liberal approach and the period of delay should not come in the way if there is sufficient ground made out by the applicants to justify the delay. Unfortunately, for the appellants such is not the case with them. We are, therefore, not satisfied with the cause shown. Day -to -day delay has not been explained by them. The Apex Court in a recent judgment in the case of " Anshul Aggarwal v. New Okhla Industrial Development Authority - : IV (2011) CPJ 63 (SC)" has held that while deciding the application filed for condonation of delay, the Court has to keep in mind that the special period of limitation has been prescribed under the Consumer Protection act, 1986 for filing appeals and revisions in consumer matters and the object of expeditious adjudication of the consumer disputes will get defeated if the appeals and revisions which are highly belated are entertained. Relevant observations may be reproduced thus: - -
"It is also apposite to observe that while deciding an application filed in such cases for condonation of delay, the Court has to keep in mind that the special period of limitation has been prescribed under the Consumer Protection Act, 1986 for filing appeals and revisions in consumer matters and the object of expeditious adjudication of the consumer disputes will get defeated if this Court was to entertain highly belated petitions filed against the orders of the consumer foras".
THE delay of 359 days in the present case cannot be condoned without sufficient cause being shown. Application for condonation of delay filed by the appellants is, therefore, dismissed. Consequently, the appeal also stands dismissed as barred by limitation.