AI Structured Summary
Not yet generated for this judgment
Judgment
THIS revision petition challenges the order dated 01.02.2011 of the Delhi State Consumer Disputes Redressal Commission, Delhi (in short, "the State Commission") in First Appeal no. 192 of 2010. By this order, the State Commission dismissed the appeal filed by the petitioner against the order dated 11.11.2009 of the District Consumer Disputes Redressal Forum, New Delhi with the following observations: "5. The matter was contested by the applicant before the District Consumer Forum where order was passed on 11.11.2009. The record shows that copy of the order was sent by registered post on 19.11.2009 to the applicant. It should have been received in normal course within 7 days for which a legitimate presumption can be raised. As again, the contention of the applicant is that the certified copy never reached him. 6. However, the applicant said that he received the copy on 15.01.2010. Even if we accept this contention, the appeal was not filed within 30 days, but it was filed on 04.03.2010, and as such, there was delay of 19 days in filing the appeal. The explanation given for delay even from the side of the applicant is, that there was delay because of office procedures, and obtaining the legal opinion. Both these grounds do not constitute sufficient reasons for condonation of delay. Delay cannot be condoned as normal routine, unless there are good and sufficient reasons, because, that is likely to set a bad precedent and impression will go around that delay will be easily condoned."
(I) The complaInant had approached the DIstrIct Forum allegIng defIcIency In servIce agaInst the petItIoner because, based on the report of the Surveyor, the petItIoner agreed to pay the complaInant/ respondent only Rs.11,519/- whereas the complaInant"s claIm was of Rs.2,72,711/- towards the cost of repaIrs to the damaged walls of the shed of Its factory buIldIng whIch was Insured for Rs.10 lakh for the relevant perIod. (II) Though the petItIoner/opposIte party (OP) Insurance company resIsted the allegatIons of the respondent/complaInant before the DIstrIct Forum on the ground that the Surveyor had correctly assessed the loss after accountIng for deprecIatIon and applyIng the reductIon factor for under-Insurance, the DIstrIct Forum dIsregarded the report of the Surveyor wIth the followIng observatIons and dIrectIons: ".we have heard both the partIes and have gone through the record of the case. It Is strange that OP looks for the market value of the property at the tIme of reImbursIng the expenses. No such assessment Is made before InsurIng the property and pocketIng the premIum. The OP had Insured the premIses of the complaInant for Rs.10,00,000/- and has charged premIum thereon. Why the OP dId not feel the necessIty of gettIng the property assessed when the premIum was beIng accepted. Now when the wall of the premIses had fallen and the surveyor had asked the complaInant to carry out the repaIrs and when the complaInant had submItted the bIlls of Rs.2,72,711/- to OP, the OP Is refusIng to honour the same on the ground that the complaInant had undervalued hIs premIses. Such a plea Is not tenable. The complaInant had placed on records all the receIpts and there Is no reason to doubt the genuIneness of the same. OP Is under contractual lIabIlIty to reImburse thIs amount to the complaInant and not a paltry sum of Rs.11,519/- whIch the complaInant has refused to accept. ThIs forum orders as follows: 1. OP wIll refund Rs.2,72,711/- to the complaInant; 2. On account of mental agony and harassment, OP wIll pay Rs.80,000/- to the complaInant as compensatIon; and 3. OP wIll pay Rs.20,000/- to the complaInant towards the cost of lItIgatIon. ThIs order be complIed wIthIn 30 days."
(III) It was thIs order that was challenged by the petItIoner Insurance company before the State CommIssIon, but there was a delay of 19 days In fIlIng the appeal. In thIs case, notIce on the revIsIon petItIon was Issued to the respondent/complaInant lImIted to the questIon as to why the matter should not be remanded to the State CommIssIon. The respondent was allowed to fIle a copy of the reply fIled by It opposIng the petItIoner"s applIcatIon for condonatIon of delay before the State CommIssIon.
I have heard Ms. Manjusha Wadhwa, learned Counsel for the petItIoner and Mr. Navdeep SIngh, learned counsel for the respondent.
(I) It Is seen from the Impugned order of the State CommIssIon that though no one was present on behalf of the petItIoner Insurance company (appellant before the State CommIssIon), the State CommIssIon heard the counsel for the respondent on the applIcatIon for condonatIon of delay fIled by the appellant/petItIoner and decIded the matter. (II) In Its applIcatIon for condonatIon of delay In fIlIng the appeal, the OP had cIted the followIng grounds: "3. The Impugned judgment had been delIvered on 11.11.2009 by the Hon"ble DIstrIct Forum, DelhI. It appears from the certIfIed copy of the judgment that the same was notIfIed as ready by the Reader, DIstrIct Forum as true certIfIed copy on 16.11.2009. The orIgInal certIfIed copy of the order was not receIved by the Insurance company from the regIstry of the DIstrIct Forum. AccordIngly, the counsel of the appellant company InquIred on 15.01.2010 from the regIstry and taken (sIc) the copy and forwarded to the Insurance company vIde letter dated 16.01.2010 whIch was receIved on 22.01.2010 by the company. AccordIngly, thereafter the requIsIte note was prepared on 25.01.2010 by D.O.-10 for R.O. " 1 for takIng opInIon and fIlIng appeal In the aforesaId matter. 4. The records of the case were, thereafter, referred from the DIvIsIonal OffIce to RegIonal OffIce and the legal department of the Insurance company at RegIonal OffIce 1I decIded to take the approprIate steps and marked the matter to the undersIgned for takIng the opInIon and fIlIng appeal, If requIred before the Hon"ble State CommIssIon. The undersIgned tendered the opInIon dated 08.02.2010 that the fIrst appeal before the Hon"ble State CommIssIon wIll lIe agaInst the order of the learned DIstrIct Forum. The legal department of the appellant company also agreed wIth the opInIon of the counsel as the matter Involved Important questIons of law whIch would have a bearIng on large number of cases. The copy of the above letters and documents are enclosed and marked as Annexure A1 (Colly.) 5. The counsel for the Insurance company after perusal of the papers and the records of the case, dIscovered that certaIn documents such as true copy of order, polIcy condItIons, are not the part of the fIle sent by the Insurance company and accordIngly letter dated 10.02.2010 was wrItten to the Insurance company for provIdIng the above documents wIth FDR of Rs.25,000/- In favour of RegIstrar, State CommIssIon.
That thereafter the undersIgned receIved the InformatIon that the FDR of Rs.25,000/- has been prepared for preferrIng the appeal.
THEREAFTER the undersigned received the complete set of documents and FDR from the insurance company and drafted the appeal, which was sent to the insurance company for approval, sanction and signatures. On sanction of the draft as prepared of appeal, the same was thereafter handed over to the counsel for the insurance company for taking further steps to file the appeal. Without prejudice to the above contention that the appeal has been filed in time, it is respectfully submitted that the delay in filing the appeal is neither deliberate nor willful and was due to circumstances beyond the control of the appellant". 6. These grounds were challenged by the learned counsel for the respondent/complainant before the State Commission, contending mainly that they could not be construed as "sufficient cause" under the provisions of section 24A of the Consumer Protection Act, 1986 (hereafter, "the CP Act"), a view with which the State Commission agreed and dismissed the appeal. 7. In challenging the order of the State Commission, Ms. Wadhwa has relied on the Court"s judgments in (i) Punjab Small Industries and Export Corporation Ltd, and Ors. v Union of India and Ors.[(1995) Supp (4) SCC 681], (ii) Special Tehsildar, Land Acquisition, Kerala v K. V. Ayisumma[(1996) 10 SCC 634] and (iii) N. Balakrishnan v M. Krishnamurthy [(1998) 7 SCC 123]. 8. It is both necessary and illuminating to read the orders of the Apex Court in these cases in some detail. (i) In the Punjab Small Industries and Export Corporation Ltd. case, the Tribunal concerned dismissed the claim petition of the petitioner on account of default on 16.07.1991. The petitioner filed application for restoration of the petition on 19.11.1992, i.e., over a year after the period of limitation of 30 days from the date of dismissal. In seeking condonation of the delay, the petitioner contended that since in certain similar cases, the files could not be traced, the Advocate was required to check the records of the Tribunal on 21.10.1992. It was only then that it was realised that the petition had been dismissed for default on 16.07.1991. Immediately on coming to know about this fact, the restoration application was filed. However, the Tribunal refused to condone the delay by holding that sufficient cause had not been shown. In appeal by the petitioner, the High Court also did not agree to restore the cases. Deciding the petitioner"s appeal by special leave, a three-Judge Bench of the Apex Court, however, held that there was no reason to consider the explanation unacceptable. The Court observed that the Tribunal proceeded on a technical ground that the Advocate being an agent of the client, knowledge of the former must be attributed to the latter also and if the former had been negligent the latter had to bear the brunt. In this context, the Court held, "What was really necessary to go into was the question whether in fact the factual statement made was probable and acceptable. We are, therefore, of the opinion that the order of dismissing the case in default must be set aside." (ii) In the case of Special Tehsildar Land Acquisition, Kerala, the appellant Special Tehsildar filed an application on 29.07.1991 to the reference court seeking review of the award in the land acquisition decree dated 31.03.1989. When the Subordinate Judge condoned the delay in filing the review application, the respondent went in appeal before the High Court. The High Court set aside the order of the Subordinate Judge. Against this order of the High Court, the Special Tehsildar went up in appeal before the Supreme Court by special leave. While allowing the appeal and remitting the matter to the reference court for disposal of the review application, the Apex Court observed as under: "It is now settled law that when the delay was occasioned at the behest of the Government, it would be very difficult to explain the day-to-day delay. The transaction of the business of the Government was being done leisurely by officers who had no or evinced no personal interest at different levels. No one takes personal responsibility in processing the matters expeditiously. As a fact at several stages, they take their own time to reach a decision. Even in spite of pointing at (sic " out") the delay, they do not take expeditious action for ultimate decision in filing the appeal. This case is one of such instances. It is true that section 5 of the Limitation Act envisages explanation of the delay to the satisfaction of the court and in matters of limitation, the Act makes no distinction between the State and the citizen. Nonetheless, adoption of strict standard of proof leads to grave miscarriage of public justice. It would result in public mischief by skillful management of delay in the process of filing the appeal. The approach of the Court should be pragmatic but not pedantic. Under these circumstances, the Subordinate Judge had rightly adopted correct approach and condoned the delay without insisting upon explaining every day"s delay in filing the review application in the light of the law laid down by this Court. The High Court was not right in setting aside the order. Delay was rightly condoned".
(iii) The judgment of the Apex Court in the case of N. Balakrishnan needs to be read in detail for it lays down the correct legal position in words that are better reproduced in toto: "3. Facts barely needed for these appeals are the following: A suit for declaration of title and ancillary reliefs filed by the respondent was decreed ex parte on 28.10.1991. The appellant, who was the defendant in the suit, on coming to know of the decree, moved an application to set it aside. But the application was dismissed for default on 17.02.1993. The appellant moved for having that order set aside only on 19.08.1995 for which a delay of 883 days was noted. The appellant also filed another application to condone the delay by offering an explanation which can be summarised thus: The appellant engaged an advocate (one Shri M. R. Rajith) for aiming the motion to set the ex parte decree aside but the advocate failed to inform him that the application was dismissed for default on 17.02.1993. When he got a summons from the execution side on 05.07.1995, he approached his advocate but he was told that perhaps execution proceedings would have been taken by the decree-holder since there was no stay against such execution proceedings. On the advice of the same advocate, he signed some papers including a vakalatnama for resisting the execution proceedings, besides making a payment of rupees two thousand towards advocate"s fees and other incidental expenses. But the fact is that the said advocate did not do anything in the Court even thereafter. On 04.08.1995 the execution warrant was issued by the Court and he became suspicious of the conduct of his advocate and hence rushed to the Court from where he got the disquieting information that his application to set said the ex parte decree stood dismissed for default as early as 17.02.1993 and that nothing was done in the court thereafter on his behalf. He also learned that his advocate had left the profession and joined as the Legal Assistant of M/s MaxworthOrcheads India Limited. Hence, he filed the present application for having the order dated 17.02.1993 set aside. 4. The appellant did not stop with filing the aforesaid application. He also moved the District Consumer Disputes Redressal Forum, Madras North ventilating his grievance and claiming a compensation of rupees one lakh as against his erstwhile advocate. The said forum passed final order directing the said advocate to pay a compensation of Rs.50,000/- to the appellant, besides a cost of Rs.500/-. 5. Though the trial court was pleased to accept the aforesaid explanation and condoned the delay, a Single Judge of the High Court of Madras who heard the revision, expressed the view that the delay of 883 days in filling the application has not been properly explained. Hence the revision was allowed and trial court order was set aside. An application for review was made, but that was dismissed. Hence, these appeals. 6. The reasoning of the learned Single Judge of the High Court for reaching the above conclusion is that the affidavit filed by the appellant was silent as to why he did not meet his advocate for such a long period. According to the learned Single Judge: "If the appellant was careful enough to verify about the stage of the proceedings at any point of time and had he been misled by the counsel then only it could have been said that due to the conduct of the counsel the party should not be penalised".
Learned Single Judge then observed that when the party is utterly negligent he cannot be permitted to blame the counsel. Learned Single Judge has further remarked that: "A perusal of the affidavit does not reveal any diligence on the part of the respondent in the conduct of the proceedings. When already the suit has been decreed ex parte, the respondent ought to have been more careful and diligent in prosecuting the matter further. The conduct of the respondent clearly reveals that at any point of time, he has not realised his responsibility as a litigant."
The appellant"s conduct does not on the whole warrant to castigate him as an irresponsible litigant. What he did in defending the suit was not very much far from what a litigant would broadly do. Of course, it may be said that he should have been more vigilant by visiting his advocate at short intervals to check up the progress of the litigation. But during these days when everybody is fully occupied with his own avocation of life an omission to adopt such extra vigilance need not be used as a ground to depict him as a litigant not aware of his responsibilities, and to visit him with drastic consequences. It is axiomatic that condonation of delay is a matter of discretion of the court. Section 5 of the Limitation Act does not say that such discretion can be exercised only if the delay is within a certain limit. Length of delay is no matter; acceptability of the explanation is the only criterion. Sometimes delay of the shortest range may be uncondonable due to want of acceptable explanation whereas in certain other cases delay of very long range can be condoned as the explanation thereof is satisfactory. Once the court accepts the explanation as sufficient it is the result of positive exercise of discretion and normally the superior court should not disturb such finding, much less in revisional jurisdiction, unless the exercise of discretion was on wholly untenable grounds or arbitrary or perverse. But it is a different matter when the first court refuses to condone the delay. In such cases, the superior court would be free to consider the cause shown for the delay afresh and it is open to such superior court to come to its own finding even untrammelled by the conclusion of the lower court.
THE reason for such a different stance is thus: THE primary function of a court is to adjudicate the dispute between the parties and to advance substantial justice. Time limit fixed for approaching the court in different situations is not because on the expiry of such time a bad cause would transform into a good cause.
RULES of limitation are not meant to destroy the rights of parties. They are meant to see that parties do not resort to dilatory tactics, but seek their remedy promptly. The object of providing a legal remedy is to repair the damage caused by reason for legal injury. Law of limitation fixes a life span for such legal remedy for the redress of the legal injury so suffered. Time is precious and the wasted time would never revisit. During efflux of time, newer causes would sprout up necessitating newer persons to seek legal remedy by approaching the courts. So a life span must be fixed for each remedy. Unending period for launching the remedy may lead to unending uncertainty and consequential anarchy. Law of limitation is thus founded on public policy. It is enshrined in the maxim "interest republicae up sit finis litium" (it is for the general welfare that a period be put to litigation). A court knows that refusal to condone delay would result in foreclosing a suitor from putting forth his cause. There is no presumption that delay in approaching the court is always deliberate. This court has held that the words "sufficient cause" under section 5 of the Limitation Act should receive a liberal construction so as to advance substantial justice vide Shakuntala Devi Jain vsKuntalKumari [1969 AIR (SC) 575] and State of West Bengal vs The Administrator, Howrah Municipality [1972 AIR (SC) 749].
It must be remembered that in every case of delay there can be some lapse on the part of the litigant concerned. That alone is not enough to turn down his plea and to shut the door against him. If the explanation does not smack of mala fides or it is not put forth as part of a dilatory strategy, the court must show utmost consideration to the suitor. But when there is a reasonable ground to think that the delay was occasioned by the party deliberately to gain time then the court should lean against acceptance of the explanation. While condoning delay the court should not forget the opposite party altogether. It must be borne in mind that he is a looser and he too would have incurred quite a large litigation expense. It would be salutary guideline that when a court condones the delay due to laches on the part of the applicant the court shall compensate the opposite party for his loss." "Once the court accepts the explanation as sufficient it is the result of positive exercise of discretion and normally the superior court should not disturb such finding, much less in revisional jurisdiction, unless the exercise of discretion was on wholly untenable grounds or arbitrary or perverse. But it is a different matter when the first court refuses to condone the delay. In such cases, the superior court would be free to consider the cause shown for the delay afresh and it is open to such superior court to come to its own finding even untrammelled by the conclusion of the lower court."
[Emphasis supplied] 9. In view of the foregoing rulings of the Supreme Court, Ms. Wadhwa has urged that the case be remitted back to the State Commission for adjudication on merits, if necessary, on appropriate terms. 10. On the other hand. Mr. Navdeep Singh, learned counsel for the respondent vehemently argued that the petitioner/appellant had not been able to show "sufficient cause" to warrant condonation of delay, as had been held rightly by the State Commission. In his submission, he cited the rulings of the Apex Court in the cases of State Bank of India v B. S. Agriculture Industries (I) [(2009) 5 SCC 121] and KandimallaRaghavaiah and Company v National Insurance Company and Another [(2009) 7 SCC 768]. 11. In the State Bank of India case, the Apex Court observed as under: "7. The bank resisted the complaint on diverse grounds, inter alia, (i) that the complainant was not a consumer within the meaning of Consumer protection Act, 1986 (for short, "Act, 1986"); (ii) that the complaint was early time barred and beyond the period of limitation; (iii) that the bills and GR"s were returned to B.M. Konar, the Sales Manager of the complainant firm; (iv) that the drawee (M/s Unique Agro Service) had accepted the liability of payment of the bills to the complainant vide letter dated May 11, 1994 and also deposited a cheque to the complainant in that regard. 8. The District Forum framed two points for determination;(one) whether there is any deficiency on the part of the opposite party and (two) whether B.M. Konar was authorized agent in collecting the bills and GR"s from the Bank" Pertinently, despite the specific plea having been raised by the Bank that the complaint was time barred, point for determination in this regard was neither framed nor considered. 9. The District Forum held that there was deficiency in service by the Bank and that the Bank was liable to compensate the complainant and consequently, directed the Bank to pay to the complainant a sum of Rs. 2,47,154/- with interest @ 15% per annum from April 21, 1994 and Rs. 5,000/- as compensation. 10. As stated earlier, the State Commission affirmed the order of the District Forum and the National Commission also did not interfere with the concurrent orders of the consumer fora. 11. Section 24A of the Act, 1986 prescribes limitation period for admission of a complaint by the consumer fora thus: "24A. Limitation period " (1) The District Forum, the State Commission or the National Commission shall not admit a complaint unless it is filed within two years from the date on which the cause of action has arisen. (2) Notwithstanding anything contained in subsection (1), a complaint may be entertained after the period specified in sub-section (1), if the complainant satisfies the District Forum, the State Commission or the National Commission, as the case may be, that he had sufficient cause for not filing the complaint within such period: Provided that no such complaint shall be entertained unless the National Commission, the State Commission or the District Forum, as the case may be, records its reasons for condoning such delay."
It would be seen from the aforesaid provision that it is peremptory in nature and requires consumer forum to see before it admits the complaint that it has been filed within two years from the date of accrual of cause of action. The consumer forum, however, for the reasons to be recorded in writing may condone the delay in filing the complaint if sufficient cause is shown. The expression, "shall not admit a complaint" occurring in section 24A is sort of a legislative command to the consumer forum to examine on its own whether the complaint has been filed within limitation period prescribed thereunder. 12. As a matter of law, the consumer forum must deal with the complaint on merits only if the complaint has been filed within two years from the date of accrual of cause of action and if beyond the said period, the sufficient cause has been shown and delay condoned for the reasons recorded in writing. In other words, it is the duty of the consumer forum to take notice of section 24A and give effect to it. If the complaint is barred by time and yet, the consumer forum decides the complaint on merits, the forum would be committing an illegality and, therefore, the aggrieved party would be entitled to have such order set aside. 13. In Haryana Urban Development Authority v. B.K. Sood, (2006) 1 SCC 164, this Court while dealing with the same provision, viz., section 24A of the Act, 1986 held: "10. Section 24-A of the Consumer Protection Act, 1986 (referred to as the Act hereafter) expressly casts a duty on the Commission admitting a complaint, to dismiss a complaint unless the complainant satisfies the District Forum, the State Commission or the National Commission, as the case may be, that the complainant had sufficient cause for not filing the complaint within the period of two years from the date on which the cause of action had arisen. 11. The section debars any fora set up under the Act, admitting a complaint unless the complaint is filed within two years from the date of which the cause of action has arisen. Neither the National Commission nor the State Commission had considered the preliminary objections raised by the appellant that the claim of the respondent was barred by time. According to the complaint filed by the respondent, the cause of action arose when, according to the respondent, possession was received of the booth site and it was allegedly found that an area less than the area advertised had been given. This happened in January 1987.Furthermore, the bhatties which were alleged to have caused loss and damage to the respondent, as stated in the complaint, had been installed before 1989 and removed in 1994. The complaint before the State Commission was filed by the respondent in 1997, ten years after the taking of possession, eight years after the cause of alleged damage commenced and three years after that cause ceased. There was not even any prayer by the respondent in his complaint for condoning the delay. 12. Therefore, the claim of the respondent on the basis of the allegations contained in the complaint was clearly barred by limitation as the two-year period prescribed by Section 24-A of the Act had expired much before the complaint was admitted by the State Commission. This finding is sufficient for allowing the appeal."
IN a recent case of Ganamani Anasuya and Others v. Parvatini Amarendra Chowdhary and Others (2007) 10 SCC 296, this Court highlighted with reference to Section 3 of the Limitation Act that it is for the court to determine the question as to whether the suit is barred by limitation or not irrespective of the fact as to whether such a plea had been raised by the parties; such a jurisdictional fact need not be even pleaded. 12. A similar question was also considered by the Apex Court in the case of Kandimalla Raghavaiah and Company in which the Court observed as under: "16. Thus, the short question for consideration is whether on facts at hand, the Commission was correct in law in dismissing the Complaint preferred by the appellant as barred by limitation" 17. Section 24Aof the Act bars any fora set up under the Act, from admitting a complaint, unless the complaint is filed within two years from the date of which the cause of action has arisen. The provision expressly casts a duty on the Commission, admitting a complaint, to dismiss a complaint unless the complainant satisfies the District Forum, the State Commission or National Commission, as the case may be, that the complainant had sufficient cause for not filing the complaint within the period of two years from the date on which the cause of action had arisen. Recently, in State Bank of INdia Vs. B.S. Agricultural INdustries (I), this Court, while dealing with the same provision, has held: "11. It would be seen from the aforesaid provision that it is peremptory in nature and requires consumer forum to see before it admits the complaint that it has been filed within two years from the date of accrual of cause of action. The consumer forum, however, for the reasons to be recorded in writing may condone the delay in filing the complaint if sufficient cause is shown. The expression, `shall not admit a complaint'' occurring in Section 24A is sort of a legislative command to the consumer forum to examine on its own whether the complaint has been filed within limitation period prescribed thereunder. 12. As a matter of law, the consumer forum must deal with the complaint on merits only if the complaint has been filed within two years from the date of accrual of cause of action and if beyond the said period, the sufficient cause has been shown and delay condoned for the reasons recorded in writing. IN other words, it is the duty of the consumer forum to take notice of Section 24Aand give effect to it. If the complaint is barred by time and yet, the consumer forum decides the complaint on merits, the forum would be committing an illegality and, therefore, the aggrieved party would be entitled to have such order set aside."
[Also see: Union of INdia &Anr. Vs. British INdia Corporation Ltd. & Ors.2 and Haryana Urban Development Authority Vs. B.K. Sood] 18. The term "cause of action" is neither defined in the Act nor in the Code of Civil Procedure, 1908 but is of wide import. It has different meanings in different contexts, that is, when used in the context of territorial jurisdiction or limitation or the accrual of right to sue. Generally, it is described as "bundle of facts" which, if proved or admitted, entitles the plaintiff to the relief prayed for. Pithily stated, "cause of action" means the cause of action for which the suit is brought. "Cause of action" is cause of action which gives occasion for and forms the foundation of the suit. (See: Sidramappa Vs. Rajashetty & Ors.). IN the context of limitation with reference to a fire insurance policy, undoubtedly, the date of accrual of cause of action has to be the date on which the fire breaks out." Citing the rulings in these cases, Mr. Singh has contended that the impugned order of the State Commission need not be interfered with. 14. For adjudication of the issues, it is, however, necessary to carefully read the provisions of sections 15 and 24A of the CP Act as well as sections 3 and 5 of the Limitation Act, 1963 (hereafter, "the Limitation Act), which are as under: CP Act: Appeal. " Any person aggrieved by an order made by the District Forum may prefer an appeal against such order to the State Commission within a period of thirty days from the date of the order, in such form and manner as may be prescribed. Provided that the State Commission may entertain any appeal after the expiry of the said period of thirty days if it is satisfied that there was sufficient cause for not filing it within that period: Provided further that no appeal by a person, who is required to pay any amount in terms of an order of the District Forum, shall be entertained by the State Commission unless the appellant has deposited in the prescribed manner fifty per cent of that amount or twenty five thousand rupees, whichever is less". "24A. Limitation Period. - (1) The District Forum, the State Commission or the National Commission shall not admit a complaint unless it is filed within two years from the date on which the cause of action has arisen. (2) Notwithstanding anything contained in sub-section (1), a complaint may be entertained after the period specified in sub-section (1), if the complainant satisfies the District Forum, the State Commission or the National Commission, as the case may be, that he had sufficient cause for not filing the complaint within such period: Provided that no such complaint shall be entertained unless the National Commission, the State Commission or the District Forum, as the case may be, records its reasons for condoning such delay."
Limitation Act: 3. Bar of limitation. " (1) Subject to the provisions contained in sections 4 to 24 (inclusive), every suit instituted, appeal preferred, and application made after the prescribed period shall be dismissed, although limitation has not been set up as a defence. (2) For the purpose of this Act " (a) a suit is instituted - (i) in an ordinary case, when the plant is presented to the proper officer; (ii) in the case of pauper, when his application for leave to sue as a pauper is made; and (iii) in the case of a claim against a company which is being wound up by the court, when the claimant first sends in his claim to the official liquidator; (b) any claim by way of a set off or a counter claim, shall be treated as a separate suit and shall be deemed to have been instituted "
(i) in the case of a set off, on the same date as the suit in which the set off is pleaded; (ii) in the case of a counter claim, on the date on which the counter claim is made in court; (c) an application by notice of motion in a High Court is made when the application is presented to the proper officer of that court. 5. Extension of prescribed period in certain cases. " Any appeal or any application, other than an application under any of the provisions of Order XXI of the Code of Civil Procedure, 1908 (5 of 1908), may be admitted after the prescribed period, if the appellant or the applicant satisfies the court that he had sufficient cause for not preferring the appeal or making the application within such period. Explanation " The fact that the appellant or the applicant was misled by any order, practice or judgment of the High Court in ascertaining or computing the prescribed period may be sufficient cause within the meaning of this section." [Emphasis supplied] 15(i) From a plain reading of these provisions it is clear that both sections 24A and 15 of the CP Act require that in case of delay a complainant/appellant must show cause/s to satisfy the Consumer Forum that it/they are sufficient to explain the delay. However, while section 24A(1) expressly bars a Forum from admitting a complaint unless it is filed within 2 years from the date of the cause of action arising, the wording of section 15 of the Act is not so peremptory. In other words, the standards of rigour with which a Consumer Forum is required, by the express provisions of section 24A(1) of the CP Act, to go into the explanations for delay in filing a consumer complaint beyond the limitation period and decide the question of its condonation before any consideration of its merits are applicable specifically to consumer complaints. So compelling a legislative direction is absent in the wording of section 15 relating to a State Commission entertaining/admitting an appeal against an order of a District Forum after the stipulated period of 30 days. (ii) The discussion/direction in the judgment of the Apex Court in the case of State Bank of India demarcating the contours of the jurisdiction of a Consumer Forum regarding condonation of delay is thus for consumer complaints and based on the wording of section 24A(1) and the Court"s earlier decision on the same issue in the case of HUDA vs B.K. Sood. (iii) Likewise, the observations of the Apex Court in paragraph 15 of its judgment in the State Bank of India case are also clearly based on the strongly peremptory provisions of section 3 of the Limitation Act.
THUS, in matters like appeals and revision petitions under sections 15, 17, 19 and 21(b) of the CP Act, the guiding principles have to be those so comprehensively and lucidly enunciated by the Apex Court in its judgment in the N. Balakrishnan case, quoted above in extenso. We need to recall the direction of the Apex Court in the judgment in that case, viz.: "9. It is axiomatic that condonation of delay is a matter of discretion of the court. Section 5 of the Limitation Act does not say that such discretion can be exercised only if the delay is within a certain limit. Length of delay is no matter; acceptability of the explanation is the only criterion. Sometimes delay of the shortest range may be uncondonable due to want of acceptable explanation whereas in certain other cases delay of very long range can be condoned, as the explanation thereof is satisfactory. " But it is a different matter when the first court refuses to condone the delay. In such cases, the superior court would be free to consider the cause shown for the delay afresh and it is open to such superior court to come to its own finding even untrammelled by the conclusion of the lower court. 10. The reason for such a different stance is thus: The primary function of a court is to adjudicate the dispute between the parties and to advance substantial justice. Time limit fixed for approaching the court in different situations is not because on the expiry of such time a bad cause would transform into a good cause. 13. It must be remembered that in every case of delay there can be some lapse on the part of the litigant concerned. That alone is not enough to turn down his plea and to shut the door against him. If the explanation does not smack of mala fides or it is not put forth as part of a dilatory strategy, the court must show utmost consideration to the suitor. But when there is a reasonable ground to think that the delay was occasioned by the party deliberately to gain time then the court should lean against acceptance of the explanation.". It would be salutary guideline that when a court condones the delay due to laches on the part of the applicant the court shall compensate the opposite party for his loss."
The sum and substance of the foregoing discussion is that while a Consumer Forum is mandated by the provisions of section 24A(1) of the CP Act to first examine if a consumer complaint is filed within the period of limitation before entering into its merits, the first proviso to section 15 of that Act does not preclude consideration of the merit of the case in considering condonation of delay if that advances substantial justice. And, also that where a Forum has refused to condone the delay due to laches on the part of the applicant/appellant, the higher Forum may consider the same question independently and afresh and, on certain terms. Perusal of the petitioner"s application (reproduced in para. 5(ii) above) for condonation of delay of 19 days in filing the appeal shows that the time gap from 10.02.2010 to the filing of the appeal on 04.03.2010 is the one that has not been clarified in detail. However, the description of the sequence of activities during that period is such that it does not lead to any suspicion of any deliberate attempt to cause delay or mala fide. Hence, in ordinary course, these reasons should have passed muster as sufficient cause for condoning the delay, particularly because it was a "first" appeal (in fact, the CP Act provides for only one appeal) and also because the law laid down by the Apex Court requires that an appeal must receive consideration of the Appellate Forum on both points of law as well as facts. However, the State Commission, instead of condoning the delay on appropriate terms, chose to dismiss the appeal on the ground that the reasons were not sufficient. In view of the detailed discussion above on the question of condonation of delay as well as the distinction between the mandates of the CP Act in regard to delayed complaint and delayed appeal (or, revision petition), I am inclined to condone the delay by the petitioner filing its appeal before the State Commission, subject to payment of cost of Rs. 5,000/- to the respondent and deposit Rs. 5,000/- with the Consumer Legal Aid Account of this Commission, within 4 weeks of the date of this order.
THEREFORE, I set aside impugned order and remit the appeal back to the State Commission for fresh adjudication in accordance with law after hearing the parties for which they shall appear before the State Commission on 16th July 2012.