M/s Solaris Realtech Pvt Ltd vs Prakash Kumar

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 04.07.2023 passed by the State Commission in F.A. No. 173 of 2023 arising out of the Order dated 07.10.2022 passed by the District Commission in complaint no. 202 of 2022.

It appears that in the complaint that was filed before the District Commission the notice was issued which was served on the petitioner / opposite party, but despite service, none appeared on behalf of the petitioner / opposite party on the date fixed and no written statement was filed in the District Commission. As a result of this, the District Commission passed its order to proceed ex parte against the petitioner / opposite party. The Order dated 07.10.2022 passed by the District Commission may be quoted herein below:

Dated: 07.10.2022

Present:   Complainant in person

OP was served on 13.8.2022. No WS filed so far.

None OP is present.

Put up 2:15 PM.

2:15 PM

7.10.2022    Complainant in person.

None for OP since morning to 2.50 PM.

OP proceeded ex parte.

Put up for CE on 4.1.2023.

Aggrieved by the same, the appeal was filed in the State Commission but with a long delay of 181 days. As such, the State Commission considered the delay condonation application first. After hearing the petitioner / opposite party, the delay condonation application was found to have no merits and therefore, was dismissed by the State Commission vide its impugned Order dated 04.07.2023. As a consequence of the same, the appeal too was dismissed as such.

Learned counsel for the petitioner / opposite party has once again tried to reiterate the grounds as taken in its delay condonation application. It has been submitted that the petitioner / opposite party did not have the knowledge of the Order dated 07.10.2022 passed by the District Commission and the same was acquired belatedly as a result of which the appeal was filed with delay. Submission is that Receptionist of the appellant’s company had resigned during the relevant period and that is why requisite knowledge of the Order and also about the notice could not be gained in time. Submission is that some litigation was also going on in between the parties in RERA and as such the petitioner / opposite party believed that there is no other forum where the case might have been filed. Submission is that the petitioner may be allowed to file the written statement otherwise it will cause prejudice to the petitioner.

The Bench has perused the record including inter alia the Order dated 07.10.2022 passed by the District Commission and the impugned Order dated 04.07.2023 passed by the State Commission.

The perusal of the impugned Order shows that the State Commission has considered the relevant law and has also gone through the explanation offered on behalf of the petitioner for the delay. The relevant discussion regarding the same succinctly captured by the State Commission in the impugned Order may be quoted herein below:

Reverting to the material available before us, we find that the impugned order   was passed on 07.10.2022 and the period of limitation starts from the date of order which had expired on 21.11.2022. However, the appellant has failed to file the present appeal within the stipulated period and the reason for delay stated in the application are that the impugned order dated 07.10.2022 came to the knowledge of the Appellant on 20.03.2023 when the Respondent had informed one of the employees of the Appellant company who informed to the Manager of the Appellant company; thereafter, counsel for the appellant searched out the pending cases before the learned District Commission then they came to know about the pending case. It has been further submitted that the notice was never served by the learned District Commission as receptionist of the appellant’s Company had resigned during the period when the notice from the learned District Commission was served at the office of the Appellant

In the present case, Appellant/ opposite party was proceeded exparte before the learned District Commission. A perusal of record before us shows that the Appellant/ Opposite party was served with the notice on 13.08.2022 and about two months later, the Appellant/ Opposite party was proceeded exparte when neither the appellant had appeared nor written statement has been filed by the Appellant.

However, no cogent reason has been given by the Appellant to show us as to why Appellant was not aware of the impugned order before 20.03.2023, whom was informed by the Respondent about the case and by which mode was informed. Even, name of the employee, designation who was informed by the Respondent has not been mentioned.

Regarding service of the notice upon the Appellant as averred in Para No.3 of this Application under disposal, no such document has been filed by the appellant in support of its contention. Impugned order mentions that Opposite party / appellant (herein) was served on 13.08.2022. However, no specific dates were mentioned in the application for condonation of delay by the appellant. As a result, the appellant has failed to provide a satisfactory reason to condone such delay in filing the present appeal.

The Bench has also tried to find out any reasonable explanation as to why despite service the petitioner / opposite party did not appear before the District Commission. The resignation of the Receptionist or of a certain employee of the appellant’s company is not a good ground to be accepted as an explanation. If the notice was served in the office of the appellant’s company, the service has to be deemed as completed. The Order passed by the District Commission does not have any infirmity which clearly mentions that the notice had already been served on the petitioner / opposite party but despite service none appeared on its behalf. In such circumstances, the explanation of the petitioner that they did not have the knowledge of the Order passed by the District Commission does not appear to be credible explanation.

Ordinarily we tend to adopt a liberal approach on the aspect of considering the point of condonation of delay and lean to take an indulgent view towards the side who seeks such condonation. We prefer that a matter be decided on merits rather than be closed at the threshold stage i.e. on the ground of delay, but that does not imply that we may ever ride roughshod over the statutory requirement regarding the law of limitation wherever it has been provided by the legislature in its wisdom. It does not need much elaboration to state that when the period of limitation expires it simultaneously gives rise to a right which accrues to the other side and the other side cannot be divested of its accrued right for no adequate reason, that is why, whenever there is a delay, and whenever condonation on that aspect is sought by a party, it has to discharge the onus of showing such factual basis from which may emanate the convincing grounds relying upon which such delay may be condoned. It goes without saying that such explanation has to be genuine and not an explanation just for the sake of explanation. Anything and everything said to bridge up a considerable gap of delay is not to be termed as legitimate explanation, which has to be sincere, honest and persuasively adequate and worthy of credence.

The perusal of the impugned Order shows that the factual appreciation has been correctly made and the evaluation about the sufficiency of the cause has also been made properly by the State Commission. The Bench does not find any element of perversity in the impugned Order nor does it see any material irregularity which may persuade the Bench to take a different view in the matter. Certainly, there is no jurisdictional error perceptible in the impugned Order on the basis of which the same may be faulted with. This Bench while sitting in a revisional jurisdiction does not see any good reason to interfere in the impugned Order or to take a different view other than taken by the State Commission.

The instant revision petition being bereft of merits stands dismissed.

The Registry is requested to send a copy each of this Order to the parties in the petition and to their learned counsel 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.