M/s Kkreation Asociates vs Manas Kumar Kar

Karuna Nand Bajpayee, Presiding Member

This revision petition has been filed under section 58(1)(b) of The Consumer Protection Act, 2019 in challenge to the Order dated 05.07.2022 passed by the State Commission in First Appeals No. 436 & No.555 of 2015 arising out of the Order dated 05.08.2015 passed by the District Commission in Complaint No. 242 of 2013.

The present revision petition has been filed in place of the second appeal which was filed earlier but was withdrawn by the petitioners with liberty to file a revision instead.

It appears that the present petition has been filed with reported delay of 517 days and admitted delay of 428 days. As the delay is neither insignificant nor small, the learned counsel for the petitioners 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 learned counsel for the petitioners and perused the entire record including inter alia the Order dated 05.08.2015 passed by the District Commission, the impugned Order dated 05.07.2022 passed by the State Commission, the application seeking condonation of delay and the memo of petition.

Learned counsel for the petitioners has reiterated the grounds as taken in the delay condonation application. For better appreciation, the relevant extracts of the same are being quoted herein below:

That however in the context of Second Appeal No.05/2024 dated 23.11.2023 Revisionist is preferring to file this Application by way of an abundant caution even though there is no delay in filing the said Second Appeal as the impugned Common Order dated 05.07.2022 was under constant legal scrutiny/challenge (1st through MC No.512/2022 dated 22.08.2022 filed within statutory time period 45 days prescribed under Section 41 and later through MC No.960/2022 dated 30.12.2022 filed pursuant to the liberty of the State Commission once again expeditiously) till date, when Revisionist filed one Affidavit dated 01.11.2023 in one pending MC No.960/2022 based on which the Hon'ble Commission was pleased to allow the Revisionist to withdraw its pending MC No.960/2022 in order to file the said Second Appeal. The said Second Appeal was filed within 4 days from the date of the receipt of the order dated 10.11.2023 on 18.11.2023 Since as per Section 14 of the Limitation Act, 1963, period spent before Ld. State Commission was a bonafide and diligent prosecution by the Revisionist which later through withdrawal thereof was allowed by the Hon'ble Commission for the sole reason to file challenges before this Hon'ble Commission, the said period shall not be computed for the purpose of computing limitation inter alia under Section 5 of the Limitation Act, 1963.

That even otherwise it is humbly submitted that the reason of bonafide and diligent prosecution before the Hon'ble Commission by the Revisionist, mostly misguided and tricked by the Respondent, was the "sufficient cause" as noted in the Consumer Protection Act, 2019 for the Revisionist's failure to file this accompanying Revision Petition earlier within the reasonable time of the receipt of the impugned Order dated 05.07.2022.

That the delay, if any, if computed from the date of the official receipt of the Order dated 05.07.2022 i.e. 19.09.2022 till the date of filing the Second Appeal No.05/2024 on 23.11.2023 is 428 days. That it is humbly submitted that this delay is neither intentional nor willful but due to the reasons as stated herein above. Interest of Justice demands that the present application may kindly be allowed and the delay in filing is condoned so that the matter can be adjudicated on merit.

It has been submitted that though the impugned Order was passed on 05.07.2022 and the present revision petition has been filed on 12.03.2024 but in the intervening period the petitioners had been pursuing the matter at the level of State Commission which consumed the time. Initially, one miscellaneous case (MC No.512 of 2022) was filed before the State Commission. Then later on, another miscellaneous application (MC No.960 of 2022) was filed and then withdrawn and subsequently the second appeal was filed in this Commission on 22/23.11.2023. Later on, the second appeal was also withdrawn to file a revision petition in its place. Liberty to file a revision petition in place of the second appeal was granted by this Commission. Submission is that as the period of delay has been mostly spent in the State Commission itself and therefore it may be said that it was spent in good faith and for bonafide reasons and therefore it should be presumed that the petitioners are entitled to get benefit while computing the period of limitation. It has also been submitted that the second appeal was filed in this Commission on 22/23.11.2023 and the revision petition has been filed in its place subsequently as liberty was granted by this Commission. Therefore, the revision petition ought to be deemed to have been filed on 22/23.11.2023 which was the date of filing of second appeal and the period which followed subsequent to it should not be counted towards delay.  Submission is that in  such circumstances, the delay that has taken place deserves to be condoned for being neither deliberate nor intentional according to the learned  counsel.

It may be observed that in the ordinary course the advisable approach to be adopted in such matters by a judicial or quasi-judicial Forum as the case may be, is to lean favourably towards the defaulting petitioner who fails to file the petition / appeal within the limitation period.  It is ordinarily preferred not to adopt a pedantic approach but to proceed with a pragmatic view and 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 Commission should not be understood to mean or to imply that the law of limitation wherever it is provided by the Act can either be blissfully ignored or be soft paddled at will.  Such kind of approach will entirety frustrate and defeat the very purpose which inspires the enactment of the 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 given Fora looking into the matter that there were actually justifiable reasons which go to explain as to why the petition /appeal was not filed within the stipulated period of time, the Forum cannot act either whimsically or capriciously. The judicial discretion which even this Commission 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 petitioner / appellant who seeks judicial indulgence in this regard. While undertaking the exercise of such evaluation the Bench also keeps in perspective the practical side of the working of institutions which are not personal entities and tries to adopt a pragmatic approach making due allowance in that regard but that must not also be misconstrued to imply that in the name of being an institution any party can claim to have such long rope which may render the law regarding the period of limitation nugatory as if it signifies nothing.

When the Bench proceeds to make an evaluation of the grounds pleaded in the condonation application in order to see whether they may qualify of being called valid reasons and be found capable to furnish sufficient cause on the basis of which the delay may be condoned, the Bench feels constrained to observe that they scarcely deserve to be called good grounds worthy of acceptance.

From the perusal of the record it transpires that the impugned Order was passed on 05.07.2022. The free certified copy of the impugned Order was also given by hand on 14.07.2022, as is apparent from the stamp affixed on the certified copy containing the details of relevant dates and data in this regard. It appears that thereafter a miscellaneous application (MC No. 512 of 2022) was filed in the State Commission. It further transpires from the perusal of the record that this MC No. 512 of 2022 was got dismissed on 06.09.2022 as not pressed. The Order dated 06.09.2022 passed by the State Commission reads as follows:

Learned counsel for the petitioner submits that he has no instruction in the matter. Therefore, misc. case for review is disposed of as not pressed.

Further perusal of the record evinces out that another miscellaneous application (MC No. 960 of 2022) was again moved before the State Commission. Again, this M.C. No. 960 of 2022 was withdrawn by the petitioners and vide Order dated 10.11.2023 was got dismissed as withdrawn. It appears that thereafter the second appeal was filed before this Commission on 22/23.11.2023.

It is certainly not a case where it may be said that the two miscellaneous cases said to have been filed before the State Commission were dismissed by that Commission for the reason of defect of jurisdiction. Such a plea has not been even raised in the application seeking condonation of delay, the relevant extract of the same has already been quoted hereinbefore. One miscellaneous case was filed which was got dismissed as not pressed. Another miscellaneous case was again filed and was then withdrawn. If the petitioners not pressed the earlier miscellaneous case under the impression that the State Commission lacked jurisdiction to pass any order once it had already decided the appeal, it is wholly inexplicable as to why another miscellaneous case would be filed. In fact, if we cast a fleeting glance on the prayer made in the miscellaneous application (MC No. 960 of 2022), it gives the impression that the petitioners were at that stage inclined to comply with the Order passed by the State Commission in the appeal which has now been challenged before this Commission. It may be apt to quote the prayer of miscellaneous application (MC No. 960 of 2022) which reads as follows:

PRAYER

In view of the above facts and circumstances, the present Petitioners therefore pray this learned commission to be graciously pleased to direct the O.P. to receive the total awarded amount of Rs. 18,40,00,000/- (Rupees Eighteen Lakhs forty thousand only) from the petitioners towards full and final compliance of Final order dtd. 05.07.2022 passed by this Hon’ble Commission in F.A. No. 436 / 2015 which was disposed of analogously with F.A. No. 555/2022 by an common order, in the interest of justice.

And for this act of your kindness, as in duty bound, the present petitioners shall ever pray.

The afore-said aspect has been briefly reflected upon to some extent in order to make it clear that this is not a matter where any such plea may be raised that while challenging the correctness of the order the time got consumed inadvertently in some superior court or forum which was eventually discovered to have no jurisdiction to deal with such matter and as such that period may be discounted towards prescribed period of limitation.

Whatever be the reasons which nudged or spurred the petitioners to file the two miscellaneous applications one after another in the State Commission earlier and then not pressing both of them and whatever be the reasons which finally prompted the petitioners to challenge the impugned Order before this Commission, they do not constitute justifiable grounds for not filing the petition  before this Commission within the prescribed time and thereby challenge the Order dated 05.07.2022 passed by the State Commission if at all they felt aggrieved by the same. So far as the period which followed subsequently after filing the second appeal here in this Commission is concerned that is not so much a  problem to take care of. All the period subsequent to filing of the second appeal may be exempted if a considerate liberal view is adopted but that is not going to rescue or save the petitioners from the challenge of explaining the enormous delay which preceded the date of filing of the second appeal and which goes back to the date of passing of the impugned Order.  Even on that reckoning, according to the delay condonation application, the admitted delay is of 428 days. The long hiatus which separates the date of impugned Order i.e. 05.07.2022 and the date of filing of the second appeal which is 22/23.11.2023 is a long drawn yawning gap which cannot be bridged up just because the petitioners thought it fit to move two miscellaneous applications before the State Commission and then got both of them dismissed as not pressed or withdrawn.

It may be observed that even though the Bench may try to adopt a liberal approach and grant judicial indulgence towards the defaulting petitioners but in the process of doing so, this Commission cannot act in a manner which may reduce the statutory law prescribing the period of limitation into complete insignificance as if it has no purpose to serve and no object to achieve.

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 sufficient cause to condone the delay. The onus is on the petitioners to show the factual basis from which may emanate such ground but the same 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 second appeal too concomitantly stands dismissed.

The Registry is requested to send a copy each of this Order to the parties in the petition and to learned counsel for the petitioners as well as to the fora below within three days. The stenographer is requested to upload this Order on the website of this Commission within three days.