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Eden Real Estates Pvt. Ltd. & Another v/s Seema Mukherjee

    First Appeal No. 1917 of 2019
    Decided On, 20 December 2019
    At, National Consumer Disputes Redressal Commission NCDRC
    By, THE HONOURABLE MS. JUSTICE DEEPA SHARMA
    By, PRESIDING MEMBER & THE HONOURABLE MR. C. VISWANATH
    By, MEMBER
    For the Appellants: Pranja Bhattacharjee, Advocate. For the Respondent: None.


Judgment Text

C. Viswanath, Member

The present Appeal is filed by the Appellants under Section19 of the Consumer Protection Act, 1986 against Order passed by the State Consumer Disputes Redressal Commission, West Bengal (hereinafter referred to as the “State Commission”) in Complaint No. 328/2017 dated 26.3.2019.

2. Along with the appeal, IA/15568/2019, an application for condonation of delay has been filed by the appellants for condonation of 127 days delay according to the appellants. According to the Registry, delay is of 133 days.

3. We have heard the Learned Counsel for the Appellants and also carefully perused the record.

4. The grounds taken by the learned Counsel for the appellant is that the certified copy of the impugned order was received in April, 2019. In the month of April and May, 2019 there was strike of lawyers due to clash between Advocates and civic employees in Howrah. Thereafter, in the month of June, 2019, due to summer vacation in Delhi, the appeal could not be filed. Further, it took time to find a lawyer in Delhi and finalizing the terms of filing the appeal and fees, etc. took long time. After finalizing the said terms, there was bereavement in the family of the Advocate. He was, therefore, unable to file the appeal in time and there was delay in filing the same.

5. The ground taken by the appellant that there was strike of lawyers in Kolkata is not convincing because the appellant could have contacted any lawyer at his/her office. During the period of strike, the offices of all the lawyers are not closed and they very well do their work in their office. Further, the ground taken by the learned Counsel that appeal could not be filed in June, 2019, due to summer vacation in the National Commission, is not maintainable. It true that this Commission was on vacation in the month of June, 2019, but the Office/Registry of the Commission remains open during the entire month of June and fresh cases are filed in the Registry. Even vacation Bench/s sit for deciding cases in June also. The appellants by their own admission state that it took time for them to find the lawyer in Delhi for finalizing the terms and filing the appeal. They further state that they took a long time internally to finalise the terms. This shows that they were themselves responsible for the long delay. The appellants further go on to state that after the delayed search for a lawyer, they engaged a lawyer who had a personal difficulty and was unable to file the appeal in time.

6. All the above reasons mentioned for long delay in filing the appeal clearly indicate that the appellants had remained inactive for a fairly long time and have not acted diligently. The Hon’ble Apex Court held that settled legal proposition of law of limitation has to be applied with all its rigour when the statute so prescribes, though it may harshly affect a particular party. The Appellant has not been able to give adequate and sufficient reason which prevented them to approach this Commission within the limitation.

The Hon’ble Supreme Court has also held that party who has not acted diligently or remain inactive is not entitled for condonation of delay. The Hon’ble Supreme Court in the case of R.B. Ramlingam v. R.B. Bhavaneshwari, I (2009) SLT 701=I (2009) CLT 188 (SC), has also described the test for determining whether the petitioner has acted with due diligence or not. The Hon’ble Supreme Court has 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.”

7. 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 the matter of Ram Lal and Ors. v. Rewa Coalfields Limited, 1961 (SLT SOFT) 168=AIR 1962 SC 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.”

8. The burden is on the applicant to show that there was sufficient cause for the delay. The expression ‘sufficient cause’ has been discussed and defined by the Hon’ble Supreme Court in the case of Basawaraj&Anr. v. The Spl. Land Acquisition Officer, VII (2013) SLT 97=III (2013) CLT 291=2013 AIR SCW 6510, as under:

“Sufficient cause is the cause for which defendant could not be blamed for his absence. The meaning of the word “sufficient” is “adequate” or “enough”, inasmuch as may be necessary to answer the purpose intended. Therefore, the word “sufficient” embraces no more than that which provides a platitude, which when the act done suffices to accomplish the purpose intended in the facts and circumstances existing in a case, duly examined from the view point of a reasonable standard of a cautious man. In this context, “sufficient cause” means that the party should not have acted in a negligent manner or there was a want of bona fide on its part in view of the facts and circumstances of a case or it cannot be alleged that the party has “not acted diligently” or “remained inactive”. However, the facts and circumstances of each case must afford sufficient ground to enable the Court concerned to exercise discretion for the reason that whenever he Court exercises discretion, it has to be exercised judiciously. The applicant must satisfy the Court that he was prevented by any “sufficient cause” from prosecuting his case, and unless a satisfactory explanation is furnished, the Court should not allow the application for condonation of delay. The Court has to examine whether the mistake is bona fide or was merely a device to cover an ulterior purpose. (See: Manindra Land and Building Corporation Ltd. v. Bhootnath Banerjee &Ors., AIR 1964 SC 1336; LalaMatadin v. A.Narayanan, AIR 1970 SC 1953; Parimal v. Veena @ Bharti, AIR 2011 SC 1150 : 2011 AIR SEW 1233); and ManibenDevraj Shah v. Municipal Corporation of Brihan Mumbai, AIR 2012 SC 1629: (2012 AIR SCW 2412).

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It is a settle legal proposition that law of limitation may harshly affect a particular party but it has to be applied with all its rigour when the statute so prescribes. The Court has no power to extend the period of limitation on equitable grounds. “A result flowing from a statutory provision is never an evil. A Court has no power to ignore that provision to relieve what it considers a distress resulting from its operation.” The statutory provision may cause hardship or inconvenience to a particular party but the Court has no choice but to enforce it giving full effect to the same. The legal maxim “duralexsedlex” which means “the law is hard but it is the law”, stands attracted in such a situation. It has consistently been held that, “inconvenience is not” a decisive factor to be considered while interpreting a statute.

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The law on the issue can be summarized to the effect 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 bona fide 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.”

9. Also in the case of Anshul Aggarwal v. New Okhla Industrial Dev

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elopment Authority, IV (2011) CPJ 63 (SC)=(2011) 14 SCC 578, the Hon’ble Supreme Court has warned 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.” 10. In view of the above, we find no sufficient ground to condone the delay. The application for condonation of delay is accordingly dismissed. As a consequence, Appeal is also dismissed in limine being barred by limitation. Appeal dismissed.
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