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Judgment
None appears for the appellant. Hence, it is decided to take up the case on merits in the absence of the appellant based on available records. Challenge is to the order dated 18.07.2016 of the State Commission vide which the complaint filed by the appellant herein was dismissed primarily on account of limitation having been filed with a delay of 352 days. The State Commission, not finding the reason for delay convincing, declined the application for condonation of delay and consequently the complaint was dismissed. While dismissing the complaint, the State Commission in para 22 of its order also observed as follows:
'22. In view of the afore-extracted citations, we are of the view that the principle of law laid down is fully applicable to the facts of the present case. In the instant case, once the complainants accepted the deposited amount with simple interest @12%, without any protest and encashed the same, as such, they ceased to be a 'consumer' as per the Consumer Protection Act, 1986. The privity of contract or relationship of consumer and service provider between the parties if any, came to an end the moment the complainants accepted the refund unconditionally and also got the cheque encashed. The complainants having got the refund amount of Rs.1,34,99,976/- i.e. Rs.39 lacs more as far back as in the year 2012 and filed earlier Consumer Complaint No.106 of 2014 before this Commission on 04.09.2014 i.e. approx. two years after receipt of the huge amount from the Opposite Party. Moreover, if the complainants did not want that amount of Rs.1,34,99,976/ it was the duty of the complainants to send back the said cheques to the Opposite Party or received the said amount under protest, but the complainants did not do so. Even the cause of action arose in the present case in the year 2011 when the complainants were fully aware that the said Villa, for which, they made the payment, does not exist and they also lodged a complaint against the Opposite Party with the police. Since the complainants were well aware of the fact that such Villa does not exist with the Opposite Party in the year 2011 and also received the money without any protest and encashed the same in September, 2012, so we do not find any justification for allowing the delay of 352 days in filing the complaint. After going through the application for condonation of delay, we are of the view that the cause, set up by the applicants/complainants, in the application, for condonation of delay, could not be said to be plausible. Since, no sufficient cause is constituted, from the averments, contained in the application, coupled with the facts available on record, the delay of 352 days, cannot be condoned. Therefore, the application for condonation of delay is, thus, liable to be dismissed."
Learned counsel for the respondent during the hearing categorically stated that in this case the entire principal amount was received by the appellant (original complainant before the State Commission) along with 12 percent interest even before filing the complaint before the State Commission and this fact was admitted even in their complaint and duly taken note of by the State Commission. They also drew our attention to this Commission's order dated 22.03.2023 in CC/1934/2016 where a similar issue was involved. Extract of the relevant para of the said judgment is reproduced below:
'7. From the above, it is clear that complainant has already received the principal amount deposited by him with OP with interest @12% upto a particular time. Normally the Commission allows refund of principal in cases of non-delivery of possession within contractually agreed period till the date of refund but at the interest rate lower than 12% p.a. In this case, as admitted by the complainant, the OP has paid interest till the date of PDCs, but at a rate higher than the Commission generally grants in such cases of refund. Hence, the complainant is not entitled to any further relief.
The Petitioner has challenged the orders of the State Commission on following grounds:
Appellant No. 1, Gurcharan Jit Singh Rosha, was stated to be handling the entire matter and died due to COVID-19 on 17.04.2021.
Appellant No. 2, wife of deceased Appellant No. 1, was allegedly not well aware of the case and was dependent upon her husband, who was handling the matter.
Appellant No. 2 came to know about the matter only when Appellant No. 1 was contacted on the last date of hearing, at which time she informed about his demise.
Thereafter, Appellant No. 2 was informed that an application for substitution was required for bringing the legal heirs of deceased Appellant No. 1 on record.
After the demise of her husband, Appellant No. 2 was stated to be not keeping well and therefore took some time to arrange the necessary documents.
She contacted her daughter residing in Switzerland for the required documents, which were stated to have been received by counsel in the second week of May 2023.
The daughter was not at her place of residence at that time, due to which the necessary formalities could not be completed.
Thereafter, the daughter was made a proforma respondent so that notice could be served upon her, and the application was subsequently prepared and filed.
The applicants stated that the delay of 759 days was wholly unintentional, neither deliberate nor wilful, and occurred due to circumstances beyond their control.
It was stated that refusal to condone the delay would cause irreparable loss and injury to the applicants.
The main question for consideration is whether in the facts and circumstances of the case the State Commission was justified in declining condonation of delay in filing the Appeal and dismiss it as barred by limitation. We have carefully gone through the orders of the State Commission, other relevant records and contentions of the Petitioner herein. We have also considered the reasons for delay as contained in the condonation of delay application filed by the petitioner herein before the State Commission in the light of observations of Hon'ble Supreme Court and this Commission in various cases.
In Sheo Raj Singh (deceased) through Legal Representative and Ors. Vs. Union of India and Anr. (2023) 10 SCC 531, Hon'ble Supreme Court observed that condonation of delay being a discretionary power available to courts, exercise of discretion must necessarily depend upon the sufficiency of the cause shown and the degree of acceptability of the explanation, the lengths of delay being immaterial, each case for condonation of delay based on the existence or absence of sufficient cause has to be decided on its own facts and that a court of appeal should not ordinarily interfere with the discretion exercised by the courts below. In Basawaraj and Another. Vs. Special Land Acquisition Officer (2013) 14 SCC 81, the Hon'ble Supreme Court observed that when a case is filed beyond the limitation period, the applicant must demonstrate "sufficient cause," meaning an adequate and enough reason for not approaching the court within the prescribed time. If the party is found to be negligent, lacking bona fides, or not acting diligently, there is no justified ground for condoning the delay. Courts are not justified in condoning such delays by imposing any conditions and must adhere to the established parameters for condonation of delay. Condoning delay without sufficient cause and proper justification would violate statutory provisions and show disregard for legislative intent. In Esha Bhattcharjee v. Raghunathpur Nafar Academy [(2013) 12 SCC 649], the Hon'ble Supreme Court expressed concern over the growing tendency to perceive delay as a trivial matter and to exhibit a lackadaisical attitude towards it, which needs to be addressed within the confines of legal parameters. In Popat Bahiru Govardhane v. Land Acquisition Officer, (2013) 10 SCC 765, the Supreme Court affirmed the principle that the law of limitation must be applied rigorously as prescribed by statute, even if it causes hardship to a particular party. The court cannot extend the limitation period on equitable grounds. In H. Dohil Constructions Co. (P) Ltd. v. Nahar Exports Ltd., (2015) 1 SCC 680 , the Hon'ble Supreme Court emphasized that the law of limitation is based on sound public policy, and therefore, applications for condonation of delay should be strictly construed in the absence of genuine reasons. Hon'ble Supreme Court in Pathapati Subba Reddy v. LAO, 2024 SCC OnLine SC 513 observed that the law of limitation is rooted in the public policy of concluding litigation by forfeiting the remedy rather than the right itself, emphasizing that rights or remedies not exercised within a specified time should cease to exist. In State of M.P. v. Bherulal, (2020) 10 SCC 654, the Supreme Court observed that the notion that merit in a case justifies disregarding a period of delay is preposterous. Regardless of a case's merit, the limitation period can bar its consideration, potentially excluding even strong cases. However, this does not negate the court's jurisdiction to condone delay in appropriate circumstances. In Bappanand Narshimman Annu Vs. Hirmanidevi G.S. Gupta & Ors., 2016 SCC OnLine NCDRC 2605, the National Commission observed that in accordance with the broad principles established by numerous decisions of the Hon'ble Supreme Court, the term 'sufficient cause' cannot be interpreted liberally when negligence, inaction, or lack of bonafides are attributable to the party seeking such discretion. Emphasizing the importance of applying the statutory period of limitation rigorously, the Commission observed that unlimited leniency in time limits fosters uncertainty.
Hon'ble Supreme Court, in Manjunath Anandappa (Supra), stated that appellate courts generally should not intervene with the discretion exercised by lower courts. This principle is affirmed in U.P. Coop. Federation Ltd. v. Sunder Bros (AIR 1967 SC 249), where it is emphasized that appellate courts should be hesitant to interfere with the exercise of discretion by trial courts. The appellate court should not replace its own discretion for that of the trial judge unless the trial court has acted unreasonably, capriciously, or ignored relevant facts. Additionally, in Gujarat Steel Tubes Ltd. v. Gujarat Steel Tubes Mazdoor Sabha (1980) 2 SCC 593, it is highlighted that appellate courts should intervene only when the lower court's order is clearly wrong, not just when it is not right.
Primarily, it is the satisfaction of the fora considering the application for condonation of delay about the sufficiency of cause and we cannot substitute our satisfaction unless it is shown that the fora below improperly exercised its discretion to consider the application for delay based on untenable, arbitrary, or perverse grounds and/or its order suffers from any illegality or material irregularity.
We have carefully considered the orders of the State Commission, and other records and the issue of the State Commission not condoning the delay of 352 days in filing the complaint in the light of various judgments of the Hon'ble Supreme Court and this Commission, in particular those which are given in the preceding paras. In view of the foregoing, we are of the considered view that the State Commission was justified in dismissing the complaint on limitation. We find no reason to interfere with its finding. No injustice is being caused to the appellant herein as the entire principal amount has already been refunded by the OP with 12% interest and this fact is not in dispute.
Accordingly, FA/1007/2016 is dismissed and the order of the State Commission is upheld.
Pending IA's, if any, stand disposed off.