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Judgment
Karuna Nand Bajpayee, Presiding Member
The present Second Appeal has been filed under section 51 (2) of the Consumer Protection Act 2019 in challenge to the impugned Order dated 09.03.2022 passed in F. A. No. 847 of 2019 and the Order dated 09.12.2022 passed in R.A. No. 96 of 2022 in F.A. No. 847 of 2019 passed by the State Commission arising out the Order dated 30.03.2019 in the consumer complaint no. 77 of 2018 .
Heard the learned counsel for the appellant and perused the record.
The present Second Appeal has been filed on 18.11.2023 with admitted delay of 312 days according to the appellant / complainant. As the delay is neither insignificant nor small, the learned counsel has been first heard on the delay condonation application in order to see whether the same deserves to be condoned or not.
Learned counsel for the petitioner has reiterated the grounds pleaded in the application seeking condonation of delay. Submission is that though the Order was passed by the State Commission on 09.12.2022 but the appellant was never informed by its counsel about passing of the impugned Order. The appellant was in touch of its counsel and whenever the counsel was approached, he informed that the matter was still pending. Later on, the counsel did not respond to the calls so the new counsel was searched for. It was only sometime in October 2023 that the appellant could find a counsel. After inspecting the case-file, it was revealed that the impugned Order was passed in the month of December 2022 whereby the review application was dismissed. Submission is that the appellant did not receive free copy of the Order. The certified copy was applied on 04.10.2023 and was received on 06.10.2023. Thereafter, the counsel was searched in Delhi to file the appeal who took time to peruse the file and prepare the draft of appeal but the appellant took time to provide its comments on the draft. The counsel for the appellant again took some more time to finalize the appeal. All this process caused the delay of 312 days in filing the appeal. Submission is that the delay is neither deliberate nor intentional, therefore, the same may be condoned.
It may be observed that in the ordinary course the advisable approach to be adopted in such matters by a judicial or quasi-judicial Forum as the case may be, is to lean favourably towards the defaulting petitioner who fails to file the petition / appeal within the limitation period. It is ordinarily preferred not to adopt a pedantic approach but to proceed with a pragmatic view and to decide the case on merits rather than to thwart the cause at the very threshold on the ground of limitation. But while saying so Commission should not be understood to mean or to imply that the law of limitation wherever it is provided by the Act can either be blissfully ignored or be soft paddled at will. Such kind of approach will entirety frustrate and defeat the very purpose which inspires the enactment of the law of limitation. The statutory law regarding limitation, wherever it is provided has a salutary purpose to serve, and has to be respected and complied with. In no case can any forum judicial or quasi-judicial can ride roughshod on the solemn provisions regarding the law which provides limitation period. It goes without saying that when a particular order attains finality it simultaneously gives rise to a right to the other side and unless there is sufficient cause, which may justify the condonation of delay and satisfy the given Fora looking into the matter that there were actually justifiable reasons which go to explain as to why the petition /appeal was not filed within the stipulated period of time, the Forum cannot act either whimsically or capriciously. The judicial discretion which even this Commission exercises in the matters of condonation of delay is not an exercise of some kind of privilege or prerogative, it is a judicial discretion and has to be exercised judiciously. The availability of sufficient cause has to be seen in perspective of the conspicuous facts and circumstances of each case and the onus of showing such factual basis from which may emanate the convincing grounds to vindicate the delayed filing has to be discharged by the petitioner / appellant who seeks judicial indulgence in this regard. While undertaking the exercise of such evaluation the Bench also keeps in perspective the practical side of the working of institutions which are not personal entities and tries to adopt a pragmatic approach making due allowance in that regard but that must not also be misconstrued to imply that in the name of being an institution any party can claim to have such long rope which may render the law regarding the period of limitation nugatory as if it signifies nothing.
When this Bench proceeds to consider the submissions made by the learned counsel it finds that the grounds pleaded in the delay condonation application do not go very far to constitute sufficient cause which may justify the delay in filing the appeal. It may be observed that this second appeal is against the Orders, one being dated 09.03.2022 while another is dated 09.12.2022. Vide Order dated 09.03.2022, the appeal filed in the State Commission was dismissed initially. It further transpires that the review application was filed with regard to the Order dated 09.03.2022 but as the review application was filed with a delay of 158 days (as it appears from the perusal of the Order dated 09.12.2022), the same was also dismissed on the point of limitation, as the delay was not condoned. The perusal of the copies of the certified copies would reveal that the free copy of the Order dated 09.03.2022 had been sent to the appellant on 24.06.2022 while free copy of the Order dated 09.12.2022 was sent on 04.01.2023 itself. These dates are available on the stamp affixed on the certified copies of the both the Orders, therefore, the very submission regarding non-supply of free copy of the Orders falls to the ground and stands exposed as nothing but a mendacious plea.
It may be relevant in this context to mention that as per the Regulation 21 of The Consumer Protection (Consumer Commission Procedure) Regulations, 2020 if a Consumer / Party needs a certified copy and applied for the same it may be given on the payment of a nominal fee. But on the subsequently applied and issued certified copy the concerned Commission is required to clearly mention as to when the first / free copy of the impugned Order was dispatched or delivered to the applicant. It may be relevant to extract the Regulation 21 which reads as follows:
Certified copy. – (1) A copy of the final order is to be given to the parties free of costs as required under the Act and the rules made thereunder.
(2) In case a party requires an extra copy, it shall be issued to him duly certified by the Registry on a payment of rupees twenty irrespective of number of pages.
(3) A certified copy of an order shall clearly specify the date when free copy was issued, date of application, date when the copy was made ready and the date when it was so delivered to him.
There seems to be an object behind making these ‘columns’ and the aforesaid provision as has been enacted goes to serve a salutary purpose. One of the obvious purposes which it goes to serve is to bring on record as to when the free copy had been dispatched / delivered. Any party who files a petition belatedly may try to hide behind the cover of the plea that it acquired the knowledge belatedly. The aforementioned Regulation provides at least some kind of check to test the veracity of such kind of plea. There has to be some convincing material to substantiate the belated acquisition of knowledge which is wholly lacking in the matter at hand. In the aforesaid circumstances it becomes clear that if the free copies had been sent to the appellant on 24.06.2022 and on 04.01.2023 with regard to the Orders dated 09.03.2022 and dated 09.12.2022 respectively, there has to be presumption of the service and about the concomitant knowledge of the impugned Orders as well and the plea to the contrary is apparently unworthy acceptance.
It may also be observed that according to the grounds pleaded in the delay condonation application also, it appears that the appellant was in touch with the counsel who was informing the appellant about the pendency of the mater uptil a certain point of time at least. It is a matter of record that after initial Order dated 09.03.2022 that had been passed against the appellant, a review application was moved against the same which got dismissed on 09.12.2022. In such circumstances to plead that the appellant was not having the requisite knowledge about the Orders appears to be an ambitious plea difficult to accept. How could a review application be filed without having requisite knowledge of the initial Order of the dismissal. It is not something which needs any analysis or elaboration to understand that such a plea is just untenable.
The other grounds pleaded also appear to be tenuous grounds. The time said to have been taken to search a counsel is too long and plea in this regard lacks credibility. In the name of searching the counsel consuming disproportionately large period of time cannot be justified. In fact, it is also not a very probable plea to raise that the lawyer who would take care to file a review application against the Order of the dismissal and would argue the review application would for no rhyme or reason stop responding to the calls of the appellant. It appears that as the appellant has nothing better to offer as explanation for the delay, such kind of hollow pleas have been raised. If the Bench counts the period of limitation from the date of dispatch of free certified copy, then the copy of the first Order was dispatched on 24.06.2022 while the second appeal has been filed on 18.11.2023 that is to say after a delay of the period of around 1 year and 4 months. The free copy of the Order dated 09.12.2022 passed on the review application was dispatched on 04.01.2023. Counting the period of limitation from that date (04.01.2023), again the appeal has been filed with huge delay of many months. The delay application moved on behalf of the appellant only mentioned about the delay of one year while it does not mention the delay which took place in filing the second appeal with regard to the earlier Order dated 09.03.2022. At any rate, whether it is earlier Order passed in the month of March 2022 or the later Order passed in December 2022, the delay involved is not of days or weeks but of several months. The hiatus which separates the date of the impugned Orders and the date of filing the second appeal is a yawning gap which has to be explained and bridged up with cogent explanation which may earn conviction and belief on the basis of its genuineness.
But 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 sufficient cause to condone the delay. The onus is on 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 second appeal too concomitantly stands dismissed.
The Registry is requested to send a copy each of this Order to the parties in the second appeal and to learned counsel for the appellant as well as to the fora below within three days. The stenographer is requested to upload this Order on the website of this Commission within three days.