M/s Dwarkadhis Projects Pvt. Ltd vs Shri Pratap Chand Nasa & Anr

Karuna Nand Bajpayee, Presiding Member

This First Appeal has been filed under Section 19 of The Consumer Protection Act, 1986 in challenge to the Order dated 28.04.2023 passed by the State Commission in Consumer Complaint No. 106 of 2018.

It appears that the present appeal has been fled with delay of 126 days according to the learned counsel for the appellant but inadvertently the Registry has reported the delay of 97 days. As the delay is neither insignificant nor small, the learned counsel for the Appellant has been heard  first on the application seeking condonation of delay in order to decide whether the same deserves to be condoned or not.

Heard the learned counsel for the appellant and perused the record including inter alia the impugned Order 28.04.2023 passed by the State Commission, the application seeking condonation of delay in filing the First Appeal and the Memo of Appeal.

Learned counsel for the appellant has reiterated the grounds as taken in the application seeking condonation of delay. To better facilitate appreciation of the matter, the relevant extracts from the delay condonation application may be quoted herein below:

There is a delay of 98 days in filing of the accompanying appeal. However, the delay is neither wilful nor intentional as the Appellant was not made aware of the impugned order by the counsel handing the matter before Ld. State Commission. The appellant during the routine exercise of taking update on progress in matters came to know about the impugned order on 02.08.2023. On the very same date, a certified copy of the impugned order was applied for and the same was received on the same day. There is further delay as the counsel in Delhi took time in preparing the draft appeal due to no proper paperwork. In absence of the paperwork before the Ld. State Commission, a copy of the entire file was put in transit on 26.08.2023 and supplied to the Appellant only on 29.08.2023. Thereafter, the copies were given to the counsel in Delhi on 29.08.2023. Hence, there is no intentional delay.

Learned counsel has been fair enough to submit that the actually the delay is 126 days but inadvertently it has been counted as 97 days. Be that as it may, submission is that the delay caused in filing the present Appeal was not intentional and the representing counsel did not inform the Appellant about the decision of the case and the negligent conduct of the representing counsel should be deemed as a good ground to condone the delay and the Appellant should not be made to suffer because of its lawyer fault. Submiission is that in the routine exercise of taking update on progress in the matters, the Appellant came to know about the impugned Order on 02.08.2023 and thereafter on the same day, the Appellant got the certified copy also. Further delay was caused in preparing the draft and do other paper works.

Normally, the Bench leans favourably towards the defaulting Appellant who fails to file the Appeal within the limitation period. It is ordinarily preferred to decide the case on merits rather than to thwart the cause at the very threshold on the ground of limitation. But while saying so it does not imply that the law of limitation wherever it is provided can either be blissfully ignored or soft paddled at will. Such kind of approach will entirety frustrate and defeat the very purpose which inspires the enactment on law of limitation. The statutory law regarding limitation, wherever it is provided has a salutary purpose to serve, and has to be respected and complied with. In no case can any forum judicial or quasi-judicial can ride roughshod on the solemn provisions regarding the law which provides limitation period. It goes without saying that when a particular order attains finality it simultaneously gives rise to a right to the other side and unless there is sufficient cause, which may justify the condonation of delay and satisfy the Bench that there were justifiable reasons which explain as to why the petition was not filed within the stipulated period of time, the Bench cannot act either whimsically or capriciously. The judicial discretion which this Bench exercises in the matters of condonation of delay is not an exercise of some kind of privilege or prerogative, it is a judicial discretion and has to be exercised judiciously.  The availability of sufficient cause has to be seen in perspective of the conspicuous facts and circumstances of each case and the onus of showing such factual basis from which may emanate the convincing grounds to vindicate the delayed filing has to be discharged by the Appellant who seeks judicial indulgence in this regard.

When the bench considers the grounds offered as explanation regarding the delay, it finds that they hardly qualifying to be called as good grounds which may constitute sufficient cause to condone the delay. The contentions of the alleged negligent conduct of the its representing counsel in the State Commission is seems to be only in the nature of absence the buck and make someone escaped goat at his back. At any rate when the matter was decided in the forum below and the Appellant was duly represented, it is presumed that the due diligence will be exercised and it is difficult to accept  that submission about belated acquisition knowledge just an allegation made on the representing counsel that  he did not make the Appellant aware about the impugned Order in time. While evaluating the sufficient cause, the credibility of the explanation has to be adjudged and every critenance cannot be recognized as a credible explanation constituting the sufficient cause, the  evidence of which the Bench have to be seen and  evaluated the grounds taken in the delay condonation application appears to be falling far short of surviving upto the standard of sufficient or acceptable explanation.

In the present case, the Bench feels constrained to observe that it does not see even a semblance of good explanation which may constitute a ground to condone the delay. The onus is on the appellant to show the factual basis from which may emanate such ground remains undischarged. The application for condonation of delay being without worth or substance is unworthy of acceptance. Sufficient cause to condone the delay is not at all forthcoming.

The application being sans merit must therefore meet its legal nemesis and as such the same stands dismissed.

As the application for condonation of delay has been dismissed, the Appeal too concomitantly stands dismissed.

The Registry is requested to send a copy each of this Order to the parties in the appeal, to the learned counsel for the appellant as well as to the State Commission within three days. The stenographer is requested to upload this Order on the website of this Commission within three days.