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Corporate Communication System v/s Mahesh Choudhary

    Revision Petition No. 1432 of 2006 in First Appeal No. 167 of 2003

    Decided On, 13 October 2010

    At, National Consumer Disputes Redressal Commission NCDRC

    By, THE HONOURABLE MR. JUSTICE ASHOK BHAN
    By, PRESIDENT & THE HONOURABLE MRS. VINEETA RAI
    By, MEMBER

    For the Petitioner: Arijit Mazumdar, Advocate. For the Respondent: Alok Singh, Advocate.



Judgment Text

Ashok Bhan, President:

1. Petitioner herein, which was the opposite party before the District Consumer Disputes Redressal Forum, Bokaro, Jharkhand (for short ‘the District Forum’) has filed the present revision petition impugning the judgment and order dated 7th April, 2003 passed in Appeal No. 167 of 2003 and the order dated 31st January, 2006 in Appeal No. 310 of 2005 along with an application to condone the delay of 1065 days in filing the revision petition against the order dated 7th April, 2003 in Appeal No. 167 of 2003.

2. Briefly stated, the facts of the case are that Shri Mahesh Chaudhary-respondent herein filed Complaint No. 322 of 1998 before the District Forum against M/s. Dynavox Electronics Ltd. at 115 TV Industrial Estate, Worli, Mumbai-400025 also having its branch office at 445, PP Compound, Main Road, Ranchi alleging that a defective Xerox machine had been sold to him. It was further alleged that the opposite party failed and neglected to rectify the said defects in the machine despite repeated reminders and requests and prayed for a direction to pay Rs. 1,57,500 being the cost of the machine, Rs. 50,000 as compensation towards financial losses, Rs. 25,000 towards compensation for mental agony and Rs. 5,000 as cost.

3. District Forumvide its order dated 13th June, 2002 allowed the complaint and directed the opposite party to pay Rs 1,04,000 being the cost of machine along with interest at the rate of 12% and to pay a sum of Rs. 25,000 as compensation. The District Forum also held that M/s. Dynavox Electronics Ltd. has changed its name to M/s. Corporate Communications Systems i.e. the petitioner herein. M/s. Corporate Communications Systems had not been impleaded as a party-respondent. M/s. Dynavox Electronics Ltd. was proceeded against ex parte as it did not enter appearance inspite of service.

4. Petitioner on coming to know of such an order being passed against it filed an appeal No. 229 of 2002 before the State Commission alleging therein that it was in no way connected with M/s. Dynavox Electronics Ltd. and further brought to the notice of the State Commission that it was not even made a party before the District Forum. State Commissionvide its order dated 18th October, 2002 allowed the appeal and remanded the case back to the District Forum for recording a finding as to whether the petitioner was in any way connected with M/s. Dynavox Electronics Ltd. Relevant observations of the order of the State Commission are extracted below:

'At this stage, without going into the merits of this case, we remit back the case to the Dist. Forum, Bokaro to record its findings as to whether the appellant is in any way connected with the Dynavox Electronics Ltd.. The parties will be at liberty to adduce additional evidence in support of their respective stands before the Forum. In order to expedite the matter, we direct the appellant as well as the respondent to appear before the learned Dist. Forum, Bokaro on 25.10.2002 at 10.30 a.m. The District Forum will hear the parties on this issue alone and record its findings. Let it be recorded that we are not inclined to disturb the other findings recorded in this case. The District Forum will dispose of the matter positively within one week from the date of their appearance without allowing adjournments on any ground whatsoever.'

After remand, the District Forum disposed of the complaint by its order dated 28th October, 2002 concluding that the petitioner was connected with M/s. Dynavox Electronics Ltd. Relevant observations of the order are extracted below:

'After considering the documents available on record and the arguments advanced on behalf of the parties, I come to this conclusion that M/s. Corporate Communication System is connected with M/s. Dynavox Electronics Ltd. In the light of the directions of the Hon’ble State Consumer Commission, Jharkhand, Ranchi, the concerned point is decided.'

5. Petitioner, being aggrieved of the aforesaid order of the District Forum, filed an appeal before the State Commission which was numbered as 167 of 2003. The State Commission held that the limitation to file the appeal had expired on 27th November, 2002 and the appeal filed on 3rd April, 2003 was hopelessly barred by time and, accordingly, dismissed the same as barred by time. This order of the State Commission has been challenged in this revision petition along with an application under Section 5 of the Limitation Act to condone the delay of 1065 days.

6. The respondent-complainant filed the Execution Case No. 17 of 2002. On being served the petitioner filed the reply and took the stand that it had no nexus with M/s. Dynavox Electronics Ltd. as such the order passed by the District Forum could not be executed against it. The District Forum accepted the contention of the petitioner and dismissed the complaintvide order dated 22nd July, 2005 and held that the order passed against the petitioner could not be executed against the petitioner as it did not have any concern either with M/s. Dynavox Electronics Ltd. or its subsequent changed name i.e. M/s. Dynavox Industries Ltd. Relevant observations from this order are extracted below:

'The opposite party Corporate Communication System has filed the copy of fresh certificate of interposition consequent of change of name dated 23.1.1998 granted by Registrar of Companies, Maharashtra, Mumbai and Annual Report 1997-1998 of Dynavox Industries Ltd. (formerly known as Dynavox Electronic Ltd.) along with a petition on 2003. These documents clearly show that the name of Dynavox Electronic Ltd. has been changed as Dynavox Industries Ltd. The complainant had purchased the disputed photo copy machine from Dynavox Industries Ltd. Corporate Communication System has no concern either with Dynavox Electronics Ltd. or with its subsequent changed name Dynavox Industries Ltd. The Corporate Communication System can in no way be made liable. Dynavox Industries Ltd. is solely liable in this case. In this view of the matter, show cause filed on behalf of Corporate Communication System is accepted. Put up on 29.8.2005.'

7. The Respondent-complainant, aggrieved by the order dated 22nd July, 2005 of the District Forum in Execution Case No. 17 of 2002, preferred an appeal before the State Commission which was numbered as 310 of 2005. The State Commission set aside the order of the District Forum; allowed the appeal and held that the decree could be executed against the petitioner. It was observed that the executive Court could not go behind the decree. Having recorded the finding that there was a relationship between the petitioner and M/s. Dynavox Electronics Ltd. in the order passed in the complaint, the District Forum could not, in execution, hold that there was no relationship between M/s. Dynavox Electronics Ltd. and Corporate Communication Systems i.e. the petitioner. Operative part of this order reads as under:

'However, specific finding was called for as to whether there is any relationship between Dynavox Electronics Ltd. and Corporate Communication System since stand was taken by the judgment debtor that it is not in any way related and/or connected with Dynavox Electronics Ltd. and accordingly execution proceeding was initiated. Surprisingly, in the execution proceeding, the Court below has non-suited the decree holder on the ground that the respondent is not in any way liable. It has been repeatedly held that executing Court has the jurisdiction to deviate from the findings recorded in the original proceeding and the order has to be executed as it is. It has repeatedly been held by the National Commission to the effect that frivolous objection in the execution proceeding should not be entertained. We fail to understand under what circumstances this new finding has been arrived at in the execution proceeding and thereby depriving the decree holder to execute the award. The respondent has time and again repeated in the appeal that they are not responsible to execute the order because there is no relationship between the original Dynavox Electronics Ltd. and Corporate Communication Systems. Such objection has been considered by the Dist. Forum pursuant to the order of this Commission in the aforesaid appeal. Accordingly, order impugned passed in execution proceeding is hereby set aside. Consequently, this appeal is allowed and the Court below is directed to proceed with the execution proceeding in accordance with law.'

8. This is the second order which has been impugned in the present revision petition.

9. Learned Counsel appearing for the petitioner has strenuously contended that the delay of 1065 days against the order dated 7th April, 2003 deserves to be condoned as great injustice has been done to the petitioner. That the petitioner was in no way connected with M/s. Dynavox Electronics Ltd. and, therefore, the decree against it could not be executed. In the application under Section 5 of the Limitation Act, the only ground taken for condonation of delay is that the delay in filing the revision petition was neither intentional nor delibrate and the same occurred due to bona fide reasons based on legal advice received by the petitioner. He contended that the expression ‘sufficient cause’ should be given a liberal interpretation to ensure that substantial justice is done. In support of his contention, he has relied upon Collector, Land Acquisition, Anantnag and Another v. Mst. Katiji and Others, (1987) 2 SCC 107, State of Haryana v. Chandra Mani and Others, II (1996) CLT 62 (SC)=(1996) 3 SCC 132 and N. Balakrishnan v. M. Krishnamurty, IV (1998) CLT 63 (SC)=(1998) 7 SCC 123.

10. In all these cases, the delay was condoned by the Supreme Court of India on the facts and circumstances prevailing in those cases. No absolute rule has been laid down that delay in filing appeal/revision should be condoned without reference to the period of limitation prescribed under the Act or the cause shown for condoning the delay. The Consumer Protection Act, 1986 has been enacted to provide speedy and simple redressal to the consumer disputes in a summary manner within a time frame. Under the Act, a complaint has to be decided within 90 days where no evidence is required to be taken and within a period of 150 days wherever evidence is required to be taken. Under Section 24A of the Act, limitation of two years has been provided for filing a complaint from the date of arising of the cause of action. Delay of approximately three years in filing the revision petition cannot be condoned except in exceptional circumstances. The condonation of enormous delay of three years which is even more than two years provided for filing a complaint itself would defeat the very purpose of the enactment of the Consumer Protection Act. As stated above, the Consumer Protection Act has been enacted to provide speedy and simple redressal to the grievances of the consumer in a summary manner within a time frame, the delay of 1065 days cannot be condoned as in the meantime vested rights come to vest in the party opposite. The only reason given for condonation of delay is that the delay was not intentional as the petitioner was acting bonafide on a legal advice given to it. The name of the lawyer who had given the advice and the basis on which the advice was given have not been spelt out. The delay of 1065 days cannot be condoned on a vague averment made by the petitioner as in the mean time valuable right had come to vest in the respondent. We are not satisfied with the cause shown in the application for condonation of delay in filing the revision petition against the order dated 7th April, 2003 and the same is, therefore, rejected.

11. Learned Counsel appearing for the petitioner further contended that the petitioner was in no way connected with M/s. Dynavox Industries Ltd. M/s. Dynavox Industries Ltd. is a distinct juristic entity and the liabilities of such companies could not be imposed on the petitioner, which is a separate juristic entity; that till date there is no finding has been recorded that M/s. Dynavox Industries Ltd. and the petitioner are one and the same entity; the only finding is that the petitioner herein is related to M/s. Dynavox Industries Ltd.; that assuming but not admitting that M/s. Dynavox Industries

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Ltd. and the petitioner are related, decree passed against M/s. Dynavox Industries Ltd. could not be enforced against the petitioner. The petitioner can take this objection even in the execution and the State Commission has erred in holding to the contrary. 12. We do not find any substance in this submission. The case had been remitted back to the District Forum to find out as to whether the petitioner was in any way connected/related with M/s. Dynavox Industries Ltd. The finding returned by the District Forum in its order dated 28th October, 2002 was that the petitioner was connected/related to the respondent. This order attained finality as appeal filed against the said order by the petitioner was dismissed as barred by limitation. Once this point has been specifically dealt with and finding recorded to the effect that the petitioner was related/connected with M/s. Dynavox Industries Ltd. the petitioner was debarred from taking this objection in the Execution Application. We agree with the view taken by the appellate Court that the District Forum, in Execution Application, could not go beyond the finding recorded by it in the main case and take a different view in Execution Application by a mere change of opinion. 13. The revision petition is, accordingly, dismissed. There shall be no order as to costs. Revision Petition dismissed.
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