Nitishree Infrastructure Pvt. Ltd. & Anr vs Anju Bansal

V.K. Jain, J

This appeal is directed against the order of the State Commission dated 17.11.2016, whereby a consumer complaint filed by the respondent was allowed. Since there is a delay of more than one year and five months in filing the appeal, an application seeking condonation of the said delay has also been filed.

The application seeking condonation of delay in filing the appeal, to the extent it is relevant reads as under:

"1) The appellant is filing present appeal under the Act impugning order dated 17.11.2016 with delay condonation. The certified copy whereof was received by the appellant on 14.6.2018. It is stated that said certified true copy after passing of the order was not sent to the appellant by the Ld. State Commission as per the due procedure since it is mandatory to send the certified true coy by the Ld. State Commission to the parties. It is duly recorded in impugned order that the counsel for the appellant after appearing once did not appeared in the matter despite of taking the time to file the written statement on account of such non-appearance of the counsel for the appellant the complaint was decided ex-parte against the appellant and the appellant were not aware about the proceedings of the case. That all of sudden the recovery office came to the office of the appellant on 12.6.2018 with demand for recovery from DM Office and thereafter on 14.6.2018 the bank account of the one of associate company was seized for recovery of decree amount. The appellant further inquired about the nature of order passed and case in which such order is passed thus on inquiring further the appellant got to know about present order and immediately sent the counsel from the Delhi office of the appellant to Lucknow State Commission who get in touch with other local counsel and obtained the certified true copy of order on 14.6.2018 as attached with the present appeal, the appellant kept the appeal and other documents ready for filing and immediately on receipt of certified copy filed the appeal on priority basis. It is stated that the appellant herein is filing regular appeals before Hon'ble NCDRC in other cases hence there was no reasons on the part of the appellant for not filing the present appeal as well since the order was ex facie against the interest of the appellant, thus the ground is bonafide and deserves to be accepted for delay condonation."

It would thus be seen that the case of the appellant is that it did not receive a copy of the impugned order from the concerned State Commission and it came to know of the said order only when the Recovery Officer came to its office on 12.6.2018. Thereafter, the certified copy of the impugned order was applied by the appellant on 14.6.2018 and was obtained on the same day.

The application has been strongly opposed by the learned counsel for the respondent / complainant who submit that the appellant has not come to this Commission with clean hand and has concealed the material fact that the copy of the impugned order was obtained from the concerned State Commission by its counsel Mr. T.H. Naqvi on 23.11.2016.

In order to verify as to whether a copy of the impugned order had been provided to the appellant or not, the record of the State Commission was called and has been received. A perusal of the said record would show that a Vakalatnama in favour of Mr. T.H. Naqvi, Advocate was filed on 23.11.2016. The record also shows that a copy of the impugned order was obtained by Mr. Naqvi, Advocate from the concerned State Commission on the same day. He also signed the dispatch register maintained by the State Commission, while receiving the copy of the impugned order. It is therefore, evident that copy of the impugned order had been obtained by the learned counsel for the appellant on 23.11.2016. It would be pertinent to note here that Mr. Naqvi was engaged as the counsel for the appellant much after the impugned order had been passed. There is no averment in the application that Mr. Naqvi after receiving the copy of the impugned order retained the same with him and did not send the same to the appellant. In fact, the application does not even refer to the engagement of Mr. Naqvi and his obtaining the copy of the impugned order from the State Commission. I therefore, find substance in the contention of the respondent / complainant that the appellant has not approached this Commission with clean hands as it has concealed the material fact that Mr. Naqvi had been engaged as a counsel after the impugned order had been passed and he had obtained a copy of the said order from the State Commission on 23.11.2016. It is a settled legal proposition that a person approaching a Court/Tribunal for grant of a relief must come to the Court / Tribunal, as the case may be, with clean hands and disclose all facts, irrespective of whether those facts are favourable or they are un-favourable to him. If a person approaches a Court / Tribunal concealing material facts, that by itself would be a good ground to non-suit him and would disentitle him from obtaining any relief from the Court / Tribunal, as the case may be. For this reason alone, the application seeking condonation of delay in filing the appeal is required to be dismissed.

On merits also, there is no explanation for abnormal delay between 23.11.2016 when the copy of the impugned order was obtained by Mr. Naqvi and 18.6.2018, when this appeal came to be filed. One of the objectives behind enactment of the Consumer Protection Act is to provide an expeditious remedy to a consumer, who is aggrieved on account of a defect in the goods purchased or the services hired or availed by him. The said objective is bound to be defeated if the appeals filed after such a long delay are entertained without there being a satisfactory explanation for such an abnormal delay.

The learned counsel for the appellant relies upon the decision of the Hon'ble Supreme Court in the State of Maharashtra & Ors. Vs. Ark Builders Pvt. Ltd.(2011) 4 SCC 616 decided on 28.2.2011. This decision in my opinion is of no help since it relates to the requirement of Section 31(5) of the Arbitration & Conciliation Act whereby a signed copy of the Award is required to be provided to each party to the Award. Moreover, this was not a case of providing a signed copy of the Award to the counsel for the appellant before the Hon'ble Supreme Court. Therefore, the judgment, in my view is of no help to the appellant in the facts and circumstances of this case.

For the reasons stated hereinabove, the application seeking condonation of delay of more than one year and five months in filing this appeal is dismissed. Consequently, the appeal is dismissed as barred by limitation.