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Judgment
We heard learned counsel for both sides, and perused the entire material on record.
2 The complaint was filed before the District Forum in the year 2011. The District Forum passed its Order in the year 2013. Appeal against the said Order of the District Forum was filed in the year 2015, wherein the State Commission passed its Order in the year 2015, remanding the matter back to the District Forum. In the adjudication afresh before the District Forum, the District Forum passed its Order dated 12.05.2017. Appeal thereagainst was dismissed on limitation by the State Commission vide its Order dated 05.01.2019.
This revision petition has been filed by the revisionist retail network co. against the said Order dated 05.01.2019 of the State Commission.
The District Forum vide its Order dated 12.05.2017 had allowed the complaint:
For the foregoing reasons, this complaint is allowed and the OP is directed to pay a sum of Rs.3,55,000/- alongwith interest at the rate of 9% per annum from the date of filing this complaint till the date of actual payment to the complainant within 45 days from today. The OP shall also pay a sum of Rs.20,000/- to the complainant as damages on account of harassment and mental agony alongwith as litigation cost of 10,000/-.
Copy of this order be supplied to the parties free of cost as per rules. File after due completion, be consigned to the Record Room.
(extracts from the District Forum's Order dated 12.05.2017)
The State Commission vide its impugned Order dated 05.01.2019 had dismissed the appeal on limitation:
Findings upon point No. 1 with reasons:
Applicant filed affidavit Ext. A1 in evidence. There is recital in affidavit that deponent is Senior Executive Legal of applicant. There is recital in affidavit that applicant engaged services of Clasis Law Firm. There is recital in affidavit that copies of email of communication between applicant and Clasis Law Firm w.e.f. 24.01.2016 to 22.08.2017 are annexed. State Commission has perused all the annexures filed by applicant carefully.
Non-applicant filed affidavit Ext. NA-1 in evidence. There is recital in affidavit that there are no sufficient grounds for condoning the delay in filing appeal. There is recital in affidavit that there was no sincere efforts on part of the applicant to file the appeal before State Commission in time. There is recital in affidavit that applicant remain inactive for sufficient long time. There is further recital in affidavit that applicant has not explained day to day delay in filing appeal.
Submission of learned Advocate appearing on behalf of applicant that delay was not intentional in nature and was bonafide in nature is decided accordingly. Plea of the applicant that applicant engaged the services of Clasis Law Firm for filing appeal and Clasis Law Firm has delayed the matter is defeated on the concept of ipse dixit (An assertion made without proof). Applicant did not file any affidavit on behalf of Clasis Law Firm in order to prove alleged facts. Applicant also did not sent any interrogatories to Clasis Law Firm in order to explain delay satisfactorily. Sole affidavit of applicant is not sufficient in order to prove controversial facts because affidavit filed by applicant is rebutted by non-applicant by way of counter affidavit. There is no cogent, positive & reliable evidence on record in order to prove that delay on part of applicant was bonafide in nature.
Submission of learned Advocate appearing on behalf of applicant that in view of communication between applicant and Clasis Law Firm w.e.f. 24.01.2016 to 22.08.2017 present application for condonation of delay be allowed is decided accordingly. State Commission is of the opinion that applicant did not file affidavit of official of Clasis Law Firm in order to prove contents of communication. It is well settled law that documentary evidence in consumer matters could be produced as per mode mentioned under section 13(4)(ii) of Consumer Protection Act 1986 by way of mode producible in evidence. It is held that applicant has not filed the original communication letter and has also not filed the communication letter by way of secondary evidence. It is well settled law that documentary evidence is producible as evidence in quasi judicial proceedings by way of primary evidence or by way of secondary evidence only.
Submission of learned Advocate appearing on behalf of non-applicant that delay in filing appeal was not bonafide in nature and was intentional in nature is decided accordingly. State Commission is of the opinion that valuable right has been accrued in favour of non-applicant and it is held that applicant did not explain delay in a proper and satisfactory manner. State Commission is of the opinion that applicant was not vigilant to pursue the matter and huge unexplained delay does not deserves to be condoned. It is well settled law that special limitation has been prescribed under Consumer Protection Act 1986 for filing revision and appeal in consumer matters. It is held that object of expeditious adjudication of consumer dispute will get defeated if belated petitions for condonation are entertained. See 2011(4) CPJ 63 (Apex Court) Ansul Agarwal Versus New Okala Industrial development authority. See 2009 (1) CLT 188 SC R.B. Ramlingam Versus R.B. Bhavaneshwari. See 2012 CLT 338 SC Office of Chief Post Master General & others Versus Living Media India Ltd. See 2017(3) CPR 694 NC M/s. Mahindra & Mahindra Financial Services Ltd. Versus Sopan Trimbak Yedke. See 2017(2) CPR 537 NC Ram Naresh Prasad Versus PNB and others. Point No. 1 is decided accordingly.
Point No. 2: Final Order
In view of findings upon point No. 1 above application for condonation of delay of 166 (one hundred sixty six) days in filing appeal is dismissed. Consequently, F.A. No. 08/2019 is also dismissed on the ground of limitation alone. Parties are left to bear their own litigation costs before State Commission. Certified copy of order be sent to learned District Forum forthwith for information. Certified copy of order be sent to parties forthwith as per rules. File of State Commission be consigned to record room after due completion. M.A. No. 909/2017 & F.A. No. 08/2019 are disposed of. Pending application(s) if any also disposed of.
(extracts from State Commission's Order dated 05.01.2019)
The appeal before the State Commission was filed with self-admitted delay of 166 days. The stated reasons for delay in filing the appeal, as mentioned in paras 3 to 5 of the application for condonation of delay filed before the State Commission, were as below:
That this impugned Order was passed by the Learned District Consumer Dispute Redressal Forum, Shimla on 12.05.2017. Ever since the pronouncement of the said impugned order dated 12.05.2017, Appellant / Opposite party kept on requesting Clasis Law Firm, hired by the Appellant / Opposite Party, to defend the said matter before the Ld. District Forum, Shimla, to provide the entire case records available with them to the appellant / opposite party but Clasis Law Firm kept on delaying the matter on one pretext or the other and it was only 25.07.17 that Clasis Law Firm informed appellant / opposite party that their local counsel has not been releasing the file to them, to be delivered to the appellant / opposite party, citing the reason that local counsel is asking for the release of his pending dues.
Appellant / Opposite provided quick resolution to the problem, which was of Clasis Law Firm actually and requested for handing over the required documents to them at the earliest as the statutory time limit for filing the appeal in the said matter has already lapsed but once again the Clasis Law Firm kept lingering on the matter and didn't provide the documents required for filing the appeal before this Hon'ble Commission and on 21.08.2017 a communication was made by Clasis Law Firm that their local counsel is asking for a sum of Rs.20,000/- to obtain the case records from Ld. District Forum, Shimla and further communicated that they have been still been looking for some other local counsel at lower rate.
Looking at no alternative and no positive approach from Clasis Law Firm Appellant / Opposite Party contacted another local counsel namely Mr. Maninder Singh on his own and requested for his services to produce the copy of case file from the Ld. District Forum, Shimla so that the appeal may be filed as soon as possible. The new local Counsel Mr. Maninder Singh procured and supplied the required documents to the Appellant / Opposite Party but the same was missing the evidence of the complainant. When requested to obtain the evidence also form the Ld. District Forum, Shimla, local counsel Mr. Maninder Singh approached the copy branch of Ld. District Forum, Shimla wherein he was informed that no evidence of complainant is available. It was only after the same was communicated to the Appellant / Opposite Party that Appellant / Opposite Party got the present appeal drafted with the help of whatever documents they had been provided and the appeal is now being filed but with the delay which has occurred due to the aforementioned circumstances. Copy of thread of email communication between Clasis Law Firm and Appellant / Opposite Party has been attached herewith as ANNEXURE a-1.
That all the above mentioned process took a long time to complete as Appellant / Opposite Party is based in Delhi and has no local contacts in Shimla, H. P. to expedite the process. Resultantly, delay in filing the appeal has been caused which is unintentional and therefore is liable to be condoned.
That the applicant/respondent will suffer an irreparable loss and injury if the delay is 166 days is not condoned.
(paras 3, 4 and 5 of the application for condonation of delay filed before the State Commission)
The State Commission's Order dated 05.01.2019 is well-appraised and well-reasoned. We specifically note the appraisal made by the State Commission, quoted, verbatim, in para 5 above.
We find that the stated reasons for delay, as reproduced, in toto, in para 6 above, point towards managerial inefficiency and perfunctory and casual attitude to the law of limitation, they are illogical and absurd in explaining convincingly and cogently the self-admitted delay of 166 days in filing the appeal before the State Commission.
Sufficient cause to condone the delay in filing the appeal before the State Commission is not visible.
The Act 1986 is to provide speedy and simple redressal to consumer disputes (Statement of Objects and Reasons). The normative ideal period for disposing of an appeal is 90 days (section 19A). The period of limitation to file appeal is 30 days (section 15). The appeal was filed before the State Commission with (further) delay of 166 days.
On perusal of the entire material on record, including, inter alia, the complaint, and without prejudging the case, and without in any manner entering into or critiquing the merits of the case, we, but, find, prima facie, allegations containing ingredients of 'deficiency in service' within the meaning of section 2 (1) (g) and (o) and 'unfair trade practice' within the meaning of section 2(1) (r) of the Act 1986 inherent in the matter.
In our considered view, the matter requires to be holistically adjudicated on merit, on the facts and the law.
In the interest of justice, and for holistic adjudication of the matter on merit, we deem it appropriate to condone the delay, but subject to just and appropriate cost of Rs. 1 lakh to be paid by the revisionist retail network co.- opposite party to the respondent - complainant through 'payee's a/c only' demand draft directly in his favour within four weeks from today.
It is made explicit that in case the condition attached with the condonation of delay in filing the appeal before the State Commission, i.e. payment of Rs. 1 lakh by the retail network co. to the complainant within four weeks from today, is not complied with, the appeal before the State Commission will continue to stand as it stood, that is, continue to stand dismissed on limitation.
Both sides are directed to appear before the State Commission on 04.11.2019.
A copy of this Order be sent to the State Commission by the Registry within seven days. 'Dasti', in addition, to both sides.