P. Laxman Shenoy vs Shashi Kumar

Avm J. Rajendra, Avsm, Vsm (Retd.), Member

This is a case of alleged claim of deficiency in service, negligence and unfair trade practice at the hands of the Appellant and Respondents No.2 to 4/Opposite Parties that they failed to deliver the schedule 2 BHK flat bearing No.1-301 and Car Park No.301 of Vailankanni’s “HEIGHTS”, at Achukodi, Pachannady Village, Bondel, Mangalore on or before April 2014, as per the terms of Agreement for Sale between the Parties dated 10.04.2013. The total sale consideration was Rs.18,86,000/-. The Complainant had paid Rs.14,14,500/-. The Appellant and Respondents No.2 to 4 / OPs chose not to appear before the State Commission. The State Commission, Karnataka partly allowed the Complaint. The relevant portion of the impugned Order dated 26.11.2020 is as below: -

“The complaint is allowed. The Opposite Party Nos.1 to 3 are hereby directed jointly and severally liable to refund a sum of Rs.14,14,500/- along with interest at 9% p.a. from April 2014, till the date of realization of entire amount.

Further, the Opposite Party Nos.1 to 3 are directed jointly and severally liable to pay a sum of Rs.2,00,000/- as compensation and Rs.10,000/- as litigation expenses to the complainant.

The Opposite Parties are granted 30 days time from this date to comply this Order. In default, the said amounts shall carry interest at 6% p.a. from the date of default, till realization.”

Being aggrieved, the Appellant filed the instant Appeal along with an Application vide IA/929/2023 seeking condonation for delay of 300 days in filing the instant First Appeal. However, as per report of the Registry, there is a delay of 744 days.

The Hon’ble Supreme Court in Suo Motu Writ Petition (Civil) No. 3 of 2020 in re: Cognizance for Extension of Limitation suspended the period of limitation for filing petitions/applications/ suits/appeals/all other quasi proceedings before any Courts/ Tribunals or any Authority due to Covid-19 Pandemic with effect from 15.03.2020 till 28.02.2022.

In the present Appeal, the learned State Commission passed the Impugned Order on 26.11.2020. The limitation for filing of the First Appeal before this Commission is 30 days from the date of the date of the Impugned Order on 26.11.2020 i.e. the First Appeal was to be filed by 25.12.2020. However, after excluding the suspended period of limitation by the Hon’ble Supreme Court i.e. from 15.03.2020 to 28.02.2022, the limitation for filing the First Appeal would commence from 01.03.2022 and the same lapsed on 30.03.2022. The present Appeal has been filed on 27.01.2023.  Therefore, there is a delay of 302 days in filing the present Appeal.

The learned Counsel for the Appellant in the IA/929/2023 seeking condonation for delay of 300 days has contended that the impugned order was passed ex-parte on 26.11.2020. However, the Appellant was completely unaware of the same till the notice in the Execution Proceedings was received. After coming to know of the Execution proceedings, based on a wrong advice, he participated in the Execution Proceedings and made payments in compliance of the orders passed by the Executing Court, even without any liability. On subsequent advice by a different advocate for filing an Appeal before the NCDRC, the papers were sent for preparation and filing of Appeal during December, 2022. Subsequently, certain additional documents were sought by the counsel. After these were provided, the Appeal and Applications were prepared in the first week of January, 2023. Further, as certain documents were not legible and certified copy of the impugned order was not sent along with files, the same was sought from the local advocate in the third week of January, 2023. In the process, sometime was consumed which has caused delay in filing the present Appeal.

As the Hon'ble Apex Court suspended the period of limitation till 28.02.2022, there is delay of 300 days in filing the Appeal. If the delay is not condoned, irreparable loss would be caused to him. Therefore, the Appellant pleaded that the delay be condoned.

On the other hand, the Respondent/Complainant filed his reply thereto and asserted that the Appellant filed the FA before this Commission after the lapse of 760 days, including the extended limitation period by Hon'ble Supreme Court, which is well beyond the prescribed limitation period, unjustified and further delaying the execution proceedings. In a recent order, the NCRDC emphasized that condonation of delay is not an inherent right but necessitate the person seeking it to present a valid explanation for each day of delay and establish a reasonable ground in not approaching the court within the prescribed limitation. Each day of delay in not explained. Delay due to application/correspondence will not extend the limitation under the Act. The explanation of the Appellant is totally unconvincing, absurd and unpersuasive. The case is time barred. The Appellant’s claim that the complaint was allowed ex-parte and was unaware of it until notice of Execution Proceedings was received is totally false. Notices were served through Regd post and paper publication and the OPs were given sufficient time. However, they failed to appear before the State Commission. Information over phone and WhatsApp was given to Mrs. Preety Shenoy, wife of Mr. Laxman Shenoy living in the same apartment in Mangalore. The Respondent sought dismissal of the condonation of delay Application in the interest of justice and equity.

We have examined the application for Condonation of Delay filed by the Appellant, reply thereto by the Complainant/ Respondent No.1 and thoughtfully heard the learned Counsel for the Appellant and the Respondent No.1/Complainant in person.

Notwithstanding the contentions of the learned Counsel for the Appellant, the instant First Appeal has been filed with a delay of 302 days as evident from the records and admitted. The reasons cited are merely routine in nature and without adequate justification for such protracted delay. No details and corroboration whatsoever as to the assertions made in respect of justification has been advanced. Faced with this, the learned counsel for the Appellant also conceded the delay in filing the Appeal.

The Hon’ble Supreme Court in catena of judgments clarified the expression ‘sufficient cause’ and held that the burden is on the Applicant to show that there was sufficient cause for the delay. A party who has not acted diligently or remained inactive is not entitled for condonation of delay. In R.B. Ramlingam Vs. R.B. Bhavaneshwari, I (2009) CLT 188 (SC), it was held as under:-

"We hold that in each and every case the Court has to examine whether delay in filing the special appeal leave petitions stands properly explained. This is the basic test which needs to be applied. The true guide is whether the petitioner has acted with reasonable diligence in the prosecution of his appeal/petition.”

Condonation of delay is not a matter of right and the Applicant has to set out the case showing sufficient reasons which prevented them to come to the Court/Commission within the stipulated period of limitation. The Hon’ble Supreme Court in Ram Lal and Ors. Vs. Rewa Coalfields Limited, AIR 1962 Supreme Court 361, has held as under:

“It is, however, necessary to emphasise that even after sufficient cause has been shown a party is not entitled to the condonation of delay in question as a matter of right. The proof of a sufficient cause is a condition precedent for the exercise of the discretionary jurisdiction vested in the Court by Section 5. If sufficient cause is not proved nothing further has to be done; the application for condoning delay has to be dismissed on that ground alone. If sufficient cause is shown then the Court has to enquire whether in its discretion it should condone the delay. This aspect of the matter naturally introduces the consideration of all relevant facts and it is at this stage that diligence of the party or its bona fides may fall for consideration; but the scope of the enquiry while exercising the discretionary power after sufficient cause is shown would naturally be limited only to such facts as the Court may regard as relevant.”

Also, in Anshul Aggarwal Vs. New Okhla Industrial Development Authority, (2011) 14 SCC 578, the Hon’ble Supreme Court sensitized the Commissions to keep in mind while dealing with such Applications the special nature of the Consumer Protection Act. The Hon’ble Supreme Court has held as under:

“It is also apposite to observe that while deciding an application filed in such cases for condonation of delay, the Court has to keep in mind that the special period of limitation has been prescribed under the Consumer Protection Act, 1986 for filing appeals and revisions in consumer matters and the object of expeditious adjudication of the consumer disputes will get defeated if this court was to entertain highly belated petitions filed against the orders of the consumer foras."

It has been held by the Hon'ble Supreme Court in the case of Basawaraj & Another Versus The Special Land Acquisition Officer, (2013) 14 SCC 811 has held that ‘where a case has been presented in the court beyond limitation, the applicant has to explain the court as to what was the “sufficient cause” which means an adequate and enough reason which prevented him to approach the court within limitation. In case a party is found to be negligent, or for want of bonafide on his part in the facts and circumstances of the case, or found to have not acted diligently or remained inactive, there cannot be a justified ground to condone the delay. No court could be justified in condoning such an inordinate delay by imposing any condition whatsoever. The application is to be decided only within the parameters laid down by this court in regard to the condonation of delay. In case there was no sufficient cause to prevent a litigant to approach the court on time condoning the delay without any justification, putting any condition whatsoever, amounts to passing an order in violation of the statutory provisions and it tantamounts to showing utter disregard to the legislature.’

If there is delay the question of deciding the matter on merit will not arise. In this context, we would like to rely upon the recent decision of Hon’ble Supreme Court in State of Uttar Pradesh & Ors. vs. M/s Satish Chand Shivhare & Brothers, SLP (Civil) No. 5301 OF 2022, it was held as below:

The questions of law purported to be raised in this Special Leave Petition are misconceived. The right of appeal is a statutory right, subject to the laws of limitation. The law of limitation is valid substantive law, which extinguishes the right to sue, and/or the right to appeal. Once an appeal is found to be barred by limitation, there can be no question of any obligation of the Court to consider the merits of the case of the Appellant.

When consideration of an appeal on merits is pitted against the rejection of a meritorious claim on the technical ground of the bar of limitation, the Courts lean towards consideration on merits by adopting a liberal approach towards ‘sufficient cause’ to condone the delay. The Court considering an application under Section 5 of the Limitation Act may also look into the prima facie merits of an appeal. However, in this case, the Petitioners failed to make out a strong prima facie case for appeal. Furthermore, a liberal approach, may adopted when some plausible cause for delay is shown. Liberal approach does not mean that an appeal should be allowed even if the cause for delay shown is flimsy. The Court should not waive limitation for all practical purposes by condoning inordinate delay caused by a tardy lackadaisical negligent manner of functioning.

Based on the discussion above, we do not find sufficient reason to condone such protracted delay in filing the Appeal. The Application seeking Condonation of Delay vide I.A. No.929/2023 is accordingly disallowed. Consequently, the instant First Appeal being No.111/2023 is also Dismissed being barred by limitation.

There shall be no order as to costs. All pending Applications, if any, are disposed of accordingly.

The Registry is directed to refund the statutory deposit, if any, to the Appellant after due compliance of the order passed by the learned State Commission.