Noritsu India Private Limited vs Hasina Kareem

Karuna Nand Bajpayee, Presiding Member

This appeal under section 19 of The Consumer Protection Act, 1986 is in challenge to the Order dated 11.01.2019 of the State Commission in complaint no. 33 of 2015.

Appeal has been filed with delay much after the expiry of limitation period provided under the provisions of the Act 1986. The delay as has been reported is of 226 days. In view of the inordinate delay in filing the appeal, the matter has been heard on the same aspect in order to first decide whether the same deserves to be condoned or not.

Heard the learned counsel for the appellant and the learned counsel for the respondent / complainant on the point of limitation.

Perused the record including inter alia the State Commission’s impugned Order dated 11.01.2019, grounds contained in the application seeking condonation of delay and also reply to the application filed in rebuttal by the respondent / complainant.

Learned counsel for the appellant / opposite parties has tried to explain the reasons which caused the delay in filing the present appeal and sought the condonation on certain grounds.

First of all, it has been submitted that at some stage of the proceedings that were going on in the State Commission, it was made to appear by the respondent / complainant that she was not interested in pursuing her complaint and wanted to seek remedy in a civil court. The memorandum filed by the complainant in this regard was also responded to by the appellant with certain objections.

Though the matter continued in the State Commission and was adjourned to a subsequent date but the appellant’s counsel who was representing him in the State Commission did not make any effective communication with the appellant. In this backdrop, the appellant assumed that the complaint must have been withdrawn. Later on, the presumption of the appellant turned out to be wrong and the appellant came to now that the proceedings of the complaint case had continued as before.

The submission is that all the proceedings which continued in the State Commission remained unknown to the appellant while his counsel kept conducting the complaint case as per his wisdom. The appellant’s counsel took adjournments on a number of occasions in the State Commission to file the evidence by way of affidavit on its behalf but he actually did not communicate any of these proceedings to the appellant nor sought any instructions from him with regard to filing of evidence by way of affidavit. Later on, directions to file written arguments were given by the State Commission but the appellant was kept in dark by his counsel. It has also been pleaded by the appellant that later on his counsel even did not appear in the State Commission and eventually the impugned Order dated 11.01.2019 was passed by the State Commission allowing the complaint.

The submission is that the event of the adverse Order having been passed by the State Commission was not informed by his counsel to the appellant. Another limb of the submission is that the appellant had faced severe financial constraints and losses resulting in the closing down of some of his offices, which also resulted in the change of its address. The submission is also that as the free certified copy of the impugned Order sent by the State Commission was addressed on the last known address of the appellant at Delhi, Chennai and Bangalore, it could not be received by the appellant.

The appellant’s counsel has further argued that the appellant lost all contacts with his counsel who was representing him before the State Commission. The execution proceedings were then initiated and the notices were issued to the appellant but because of change of the address, he could not receive it.

Learned counsel while making his submissions has been fair enough to admit that the respondent had also given a private notice to the appellant which it did receive in the due course whereby the execution proceedings with regard to the impugned Order dated 11.01.2019 were communicated and the appellant was called upon to appear before the State Commission.

The submission is that the appellant came to know about the adverse impugned Order passed by the State Commission only through this notice. Thereafter the appellant contacted his counsel who was representing him and thereafter the counsel appeared before the State Commission on 22.07.2019. The matter was then adjourned to several further dates and his counsel kept appearing before the State Commission in execution proceedings but never gave the correct advice to the appellant about filing of the appeal against the impugned Order at appropriate stage in an appropriate forum. The submission made by the counsel in this regard is more elaborately pleaded in the application for condonation of delay and all the blame for delay that has taken place in filing the instant first appeal has been foisted squarely upon the earlier counsel who allegedly kept the appellant in dark. According to the plea taken in this regard, the appellant’s counsel in the State Commission was more interested in demanding the additional fees for handing the case rather than apprising the appellant with the correct status of the case. According to the plea taken in the application for condonation of delay, it was only on 04.10.2019, when the copy of the impugned Order dated 11.01.2019 was received through email sent by the counsel that the appellant could realise the gravity of the situation and engaged another advocate. The allegations have been made against the representing counsel that he appears to have colluded with the respondent / complainant. It has been pleaded in the application for condonation of delay that as the appellant received the scan copy of the impugned Order from his representing counsel for the first time on 04.10.2019, the instant first appeal has been filed within limitation from the date of such knowledge.

Learned counsel appearing for the respondent / complainant has on the other hand vehemently opposed the contentions and the pleas raised on behalf of the appellant seeking the condonation of delay. The learned counsel has drawn the attention of the bench towards the grounds pleaded in the application for condonation of delay and the various dates mentioned therein and the inter-se inconsistencies of pleadings emanating therefrom and has also tried to elaborate as to how a wholly concocted and confused picture has been conjured up deliberately by the appellant in order to anyhow wriggle out from the legal embargo of prescribed period of limitation which has been so negligently breached in this matter.

The submission is that though the appellant has found it convenient to pass the buck on his counsel against whom all sort of allegations have been made but all these insinuations fly in the face of the telling fact that even during the course of the execution proceedings that took place pursuant to the adverse impugned Order, the same counsel represented the appellant for long and was not disengaged immediately after having come to know about the passing of the adverse impugned Order. Had the appellant really been kept in the dark by his counsel, and had the conduct of his counsel really been so unsavoury, mischievous or unsatisfactory, as it has been painted, the reaction of the appellant would have been very different. According to respondent’s counsel immediate disengagement of counsel would have followed in that case as its most natural corollary. But the facts indicate otherwise. Even after having lost the case, faith was reposed in the same counsel and even in the execution proceedings he represented the appellant for a substantial period of time.

Learned counsel for the respondent / complainant has also pointed out that free certified copy of the impugned Order was despatched to both parties on 09.02.2019 as is well born out from the copy of annexure-R-1 which is a copy of a paid certified copy of the impugned Order which contains the endorsement details about the despatch of certified copy to both parties etc. The counsel has further relied upon the annexure-R-3 which demonstrates that the copy of the impugned Order dated 11.01.2019 was uploaded by the State Commission in its website i.e. confonet.nic.in on 18.03.2019 itself. The contention is that the appeal could have been filed even on the basis of the uploaded impugned Order dated 11.01.2019 from the website of the State Commission.

The learned counsel for the respondent / complainant has also drawn the attention towards annexure-R-4, which demonstrates that on 10.07.2019, the appellant had received a copy of the notice and the copy of the execution application sent by the counsel for the respondent / complainant.

It has been emphatically argued that there is ample record to demonstrate that the appellant had gained the knowledge about the adverse impugned order certainly much before the date which has been claimed on its behalf. According to the counsel not one but a number of occasions are there to demonstrate such knowledge of the appellant about the cause of action having arisen and even taking any one of them as the basis of reckoning the time of limitation, the appeal falters miserably and has been filed much after the expiry of limitation period on any method of counting.  The impugned Order was passed on 11.01.2019 while the present appeal was filed before this Commission on 23.10.2019. In this context, during this interregnum at several stages it can be seen with clarity that on a number of occasions, the appellant must be presumed to have gained knowledge about the passing of the impugned order or to say the cause of action to file the appeal within the period of limitation as per the provisions of the Act 1986 but the appellant has miserably failed to do so.

Further submission of the respondent’s counsel is that though initially the respondent / complainant intended to pursue the matter on a civil side but later on she had filed another memo dated 05.12.2017 expressing her intent to continue with the complaint before the State Commission. The State Commission thereafter never dismissed the complaint and continued with the same and the learned counsel representing the appellant kept representing him before the State Commission as usual for a long time and appeared in the Commission thereafter on several dates. Subsequently, even after passing of the adverse impugned Order when the execution proceedings were initiated, no distrust of any kind was shown by the appellant on its counsel and he (the same counsel) represented the appellant also in the execution proceedings before the State Commission. In such a situation, the plea of ignorance of the passing of the impugned order dated 11.01.2019 is wholly specious, untenable and unsubstantiated. In fact even if it is presumed for the sake of argument that the appellant came to know about the passing of the impugned Order through a private notice dated 06.07.2019 sent to it, then too, the appeal was filed with an unbridgeable delay which remains fully unexplained. The contention is that the application for condonation of delay must be disallowed as the same has been filed without substance or sufficient cause.

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 record has been perused in the light of the rival submissions made at the Bar.

The Bench has tried to find out whether there is any element of genuineness in the pleas that have been raised in order to seek condonation of delay in filing the instant appeal but has found the same to be woefully lacking. Where a party choses to get its case conducted by the counsel of his choice, the counsel as a legal representative virtually steps into the shoes of the party in order to safeguard his interests and does all which he can on the basis of his wisdom. The level of competence or astuteness of the counsel may vary as no lawyer can be presumed to be the complete repository of wisdom, but what important events are taking place in the case which have a direct consequential bearing on the interests of the litigating party are supposed to be definitely in the knowledge of the counsel and his client. What can be more important or consequential event than the final decision or order itself that was passed in the case! Claiming ignorance about the same or pleading ignorance about the same is itself an anomalous pleading. After the impugned Order was passed, the execution proceedings were initiated and appropriate notices were issued and the same counsel remained engaged even in the execution proceedings. In this regard for reference the bench may quote paras 22 and 23 of the appellant’s application seeking condonation of delay which reads as follows:

Shri A Rajapandian, Advocate thereafter appeared before the State Commission in EA `No. 02 of 2019 in CC No. 33 of 2015 on 22.07.2019 as recorded in the order dated 22.07.2019 [ANNEXURE A-71] and undertook to file vakalatnama on behalf of the Appellant. Accordingly the case was adjourned by the State Commission to 07.08.2019, and as recorded by the State Commission in the order dated 07.08.2019 [ANNEXURE A-72] Shri A. Rajapandian, Advocate filed vakalatnama on behalf of the Appellant on the said date, and the case was adjourned to 03.09.2019 for reply on behalf of the Appellant. Shri A. Rajapandian, Advocate thereafter vide e-mail dated 07.08.2019 [ANNEXURE A-73] informed the Appellant that the case stood adjourned to 03.09.2019 and requested the Appellant to forward copy of the authorization in favour of the Representative of the Appellant, which according to him was the only document required to be filed before the State Commission, and demanded a fee of Rs. 20,000.00 for handing the case before the State Commission. Shri A. Rajapandian, Advocate however did not say anything further in the e-mail dated 07.08.2019 regarding the status of the case.

Shri A. Rajapandian, Advocate thereafter appeared before the State Commission on 03.09.2019, and as per order dated 03.09.2019 [ ANNEXURE A-74] of the State Commission, EA No. 02 of 2019 was adjourned to 03.10.2019 for reply by the Appellant. Shri A Rajapandian, Advocate on 03.09.2019 applied for certified copy of the impugned judgment dated 11.01.2019, which was obtained by him on or about 06.09.2019, but he did not bother to send the same to the Appellant immediately, and thereafter appeared before the State Commission on 03.10.2019 in EA No. 02 of 2019, and as per order dated 03.10.2019 [ANNEXURE A-75] of the State Commission, Shri A. Rajapandian, Advocate appearing for the Appellant did not file reply to the execution application and nor explained any reason for not filing the reply. The State Commission however, in view of the notification of the new Consumer Protection Act, 2019 by the Central Government, adjourned the case to 31.10.2019 to await further course of action.

After having gone through the aforesaid paragraphs and the pleas taken therein, the bench finds it hard to believe that even though the execution proceedings were going on and the appellant was duly represented therein, the appellant or his counsel was still not having the requisite knowledge about the passing of the impugned Order or its nature or effect. Such a plea is almost preposterous and even a credulous person would find it hard to accept the plea of such kind of complete ignorance of knowledge about the impugned Order. The Bench does not find it appropriate to enter into the arena relating to the indicting allegations which have been so conveniently levelled against the representing counsel who is not here to defend himself. But in the circumstances of the case, in the wake of the implausible pleas that have been taken in the application for condonation of delay and the inherent incompatibilities contained therein, the Bench is unhesitatingly disinclined to accept them either as bonafide or truthful.

As has already been observed, the Bench ordinarily leans in favour of the defaulting appellant for the purpose of condoning the delay and prefers to decide the lis on merits but even a liberal exercise of such kind will require at least some semblance of a plausible explanation being proffered to bridge up the significant gap after which the appeal has been filed. Here, but, the ground being offered appears to be wholly inadequate, if not mendacious. It alongside bears emphasis that the complainant has a favourable Order of the State Commission and the right which has accrued to him cannot be made a victim after inordinate efflux of time without just cause. The powers which have been conferred to condone the delay have got to be exercised judiciously and not arbitrarily and certainly not at will either whimsically or capriciously. The discretion to be exercised in such matters is not an exercise of some kind of privilege or prerogative, it is essentially a legal exercise and has to be lawfully harnessed with judicious discipline. The object and purpose behind the law of limitation cannot be either swung into oblivion or be ignored with apathy. A complete disregard of the law of limitation will eventually frustrate and defeat the salutary purpose which inspires the enactment in this regard wherever provided.

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 of 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 on limitation.

The Registry is requested to send a copy each of this Order to the parties in the appeal and to their learned counsel as well as to the State Commission within three days.