Suhinder Kaur vs OMAXE LIMITED

BY this execution revision petition, the petitioners have challenged the order dated 18.3.2014 passed by the State Consumer Disputes Redressal Commission, U.T. Chandigarh in F.A No.82 of 2014 whereby the State Commission dismissed the appeal under section 27A of the Consumer Protection Act, 1986 filed by the petitioners against the order dated 20.1.2014 passed by the District Forum in C.P No.90 of 2013 dismissing the execution application filed by the petitioners in consumer complaint No.470 of 2012.

THERE is a delay of 68 days (67 days as per the note put up by the Registry) in filing this execution revision petition beyond the prescribed period of 90 days for which the petitioners have filed I.A. No.5775 of 2014 praying for condonation for delay in question.

WE have heard learned Shri Deepak Aggarwal, Advocate for the petitioners on the application for condonation of delay and perused the application. Learned counsel has contended that the delay in question is only of 68 days which can be condoned keeping in view the reasons mentioned by the petitioners in their application as also the judgement of the National Commission in the case of Meena, Keshave Bansal Vs. Union of India and Ors., 2014 1 CPJ 565 (NC). whereby this Commission has condoned even the long delay of 2167 days and decided that matter on merits. Relying on this judgement, learned counsel submitted that the present execution revision petition can also be considered and decided on merits after condoning a small period delay of 68 days. Perusal of the application filed by the petitioners shows that the main grounds on which condonation of delay has been sought by the petitioners are as under: - "That the petitioners could not file the present petition within statutory period of 90 days but with delay of 68 days due to two reason, firstly that , father of petitioner no.1, who is retired Additional District and Sessions Judge from Punjab, had earlier been operated for brain tumor was not keeping well for some time and no one to take care of him except petitioner No.1. Brother and another sister of petitioner no.1 are residing in Canada. Secondly, petitioner no.1 who is a lecturer by profession, who was earlier posted at Chandigarh was after promotion transfer to Hoshiarpur Punjab. Complainant No.1 after transfer was regularly shutting between Chandigarh to Hoshiarpur and back. Whatever little time she got after reaching Chandigarh was either diverted to managing two small minor children and ailing father. It is stated that even mother of complainant no.1 is bed ridden. It is further stated that complainant all the above -said period was under depression because every day complainant no.1 had to made a journey from Chandigarh to Hoshiarpur which takes approximately 3 hours and again after doing duty had to travel for three hours on a bus from Hoshiarpur to Chandigarh. Further complainant no.1 was posted back to Chandigarh on 15.7.2014 and soon after the posting at Chandigarh, father of petitioner No.1 unfortunately became more sick and had to be regularly taken to the hospital for fits and other necessary treatment. Petitioner no.2 husband of petitioner no.1 and is employed in Bhakra Beas Management Board and had to make various tours in other states frequently in connection with his job. Petitioner no.2 independently could not take decision to file the present revision, in the circumstances mentioned hereinabove and also on account of his father -in -law not keeping well. Medical certificates are attached with the present application."

IT is further submitted by the petitioners that the delay involved in filing of the execution revision petition is not intentional but for the reasons explained in the application. The petitioners have also referred to the observations of the Apex Court made in the cases of O.P. Kathpalia V. Lakhmir Singh, 1984 4 SCC 66., Collector Land and Acquisition Vs. Mst. Katiji, 1987 2 SCC 107. and Bhupinder Kaur Vs. Patel Hospital,2012 1 CPC 537 in support of their request for condonation of delay.

WE may note that the petitioners have offered very general and vague explanation in support of condonation of 68 days of delay beyond the statutory period of 90 days for filing this petition. The impugned order was passed on 18.3.2014 but no dates have been given in the application to justify the period of delay on account of reasons indicated in the explanation. It is to be noted that there are two petitioners and in case illness of the father of petitioner No.1 could be assumed to be the reason for the sake of argument, there is no reason as to why petitioner No.2 who is husband of petitioner No.1 and was in active service, could not take care to ensure that execution revision petition is filed within the period of 90 days prescribed for the purpose under the law. We have no manner of doubt in our mind that the petitioners have not acted diligently in pursuing their petition and what they have offered in the name of "sufficient cause" which led to the delay is nothing but lame excuse which we are not inclined to accept with a view to condone the delay of 68 days in the given circumstances of this case.

IT is well settled that "sufficient cause" for condoning the delay in each case is a question of fact.

IN R.B. Ramlingam Vs. R.B. Bhavaneshwari, 2009 2 Scale 108., the Apex Court has observed thus: - "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."

IN Ram Lal and Ors. Vs. Rewa Coalfields Ltd., 1962 AIR(SC) 361., the Supreme Court has made the following observations: - "It is, however, necessary to emphasize 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 discretionary jurisdiction vested in the Court by S.5. If sufficient cause is not proved nothing further has to be done; the application for condonation 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."

THE observations made by the Hon''ble Supreme Court in the aforesaid celebrated cases are fully attracted to the facts and circumstances of the present case. So far as the citations relied on by the petitioners and their counsel are concerned, we are quite conscious of the fact that while dealing with the application for condonation of delay, one cannot adopt a hyper technical approach and has to keep in mind the famous and evergreen guidelines referred to by their Lordships of the Apex Court in the case of Mst. Katiji and Ors. which call upon the courts to adopt a rational and pragmatic approach rather than pedantic while examining explanation about "every day''s delay". However, as stated above, "sufficient cause" for condoning the delay being a question of fact, each case has to be examined in the light of its own peculiar facts and circumstances and while doing so if there is sufficient cause made out for condonation of delay in the given facts and circumstances of the case, the length of the period of delay does not necessarily come in the way of condonation. As learned counsel for the petitioner has himself referred, this Commission condoned even the long period of delay of 2167 days in the case of Meena and Keshave Bansal , because the facts and circumstances indicated beyond doubt that sufficient cause had been made out to justify condonation of the delay. However, when we judge the present case in the light of the guidelines laid down by the Apex Court, we are convinced that no sufficient cause is made out in the present case for condonation of delay. Hence, we are not inclined to condone the delay in question in filing the present execution revision petition and consequently, the execution revision petition is liable for dismissal being barred by limitation.

EVEN otherwise, we have glanced through the record but do not find any substance in the revision petition on merits which would justify our interference. We may note that while dismissing the execution application of the petitioners, the District Forum has made the following observations in support of its order: - 7. "It is quite evident from the execution application under Section 27 of the Consumer Protection Act that the complainants/decree holders have nowhere alleged that they are entitled to 18% interest p.a. Their simple prayer is that they have received an amount of Rs.20,76,883/ - (Rs.12,91,192/ - + Rs.7,60,691/ - + Rs.25,000/ -) and still a total sum of Rs.83,840/ - towards interest is payable by the JD to them. The interest calculation sheet attached with the application under Section 27 of the Consumer Protection Act also shows that the complainants themselves calculated the interest @12% p.a., which means they were satisfied that the payment was made within 30 days from the date of the receipt of the copy of order by the OP but an amount of Rs.83,840/ - still remained to be paid. However, OP/JD has made it clear through calculations at Annexure R -1 that the total amount of interest worked out to Rs.8,45,212/ - from which an amount of Rs.84,521/ - was deducted towards TDS. Three cheques dated 22.4.2013 for an amount of Rs.12,91,192/ -, Rs.7,60,691/ - and Rs.25,000/ - were sent to the complainants. It has been urged by the learned Counsel for the OP/JD that the certificate in respect of TDS shall be supplied to the complainants as and when the same is received from the Income Tax Department. In this view of the matter, it is crystal clear that the complainants/decree holders are not entitled to recover the amount of Rs.83,840/ - as alleged by them in the original execution application under Section 27 of the Consumer Protection Act from the OP/JD."

THE State Commission vide its impugned order has upheld the order of the District Forum and recorded thus: - "15. The District Forum, was, thus, right in coming to the conclusion that since the entire payment, which was due to the Decree Holders/Complainants, against the Judgment Debtor/Opposite Party stood made by it, through cheques, as far back as on 22.04.2013 (21.04.2013 being Sunday), within 30 days, from the date of receipt of certified copy of the order dated 28.02.2013, as such, nothing remained due to them (Decree Holders/Complainants), against it (Judgment Debtor/ Opposite Party). The District Forum was also right, in dismissing the Criminal Petition, bearing No.90 of 2013, as fully satisfied."

WE agree with the view taken by the Fora below and as such on merits also do not find any infirmity or illegality which would call for interference while exercising our revisional jurisdiction under section 21(b) which confers very limited powers on this Commission while exercising our revisional jurisdiction.

IN view of the above, the execution revision petition is dismissed both on grounds of delay as well as on merits.