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Golden Green Towers Limited Liability Partnership (Llp) v/s Varun Salwan

    First Appeal No. 690 of 2020

    Decided On, 27 January 2021

    At, National Consumer Disputes Redressal Commission NCDRC

    By, THE HONOURABLE MS. JUSTICE DEEPA SHARMA
    By, PRESIDING MEMBER

    For the Appellant: Amit Kohar, Advocate. For the Respondent: ------



Judgment Text

Oral:

Through Video Conferencing

The present Appeal, under Section 51(1) of the Consumer Protection Act, 2019 (for short “the Act”), has been filed by Golden Green Towers Limited Liability Partnership who was Opposite Party No.3 in the Complaint filed by the Respondent No.1, against the order dated 07.03.2018 of the State Consumer Disputes Redressal Commission, Punjab (for short “the State Commission”)

2. Since the present Appeal is delayed by 881 days, an application IA No.6239 of 2020 seeking condonation of delay has been filed. Arguments have been heard on this application.

IA 6239 of 2020 (condonation of delay)

3. Learned Counsel for the Appellant has submitted that there is no delay in filing the present Appeal and the application has been moved only on technical grounds. It is submitted that as soon as they received the certified copy of the impugned order, within 30 days the present Appeal has been filed. It is argued by the learned Counsel for the appellant that the Appellant had duly participated in the trial before the State Commission and his Counsel had also addressed the final arguments on 26.02.2018 and thereafter the matter was reserved and the final order was pronounced on 07.03.2018. He has submitted that the copy of the impugned order was never served upon the Appellant and the Appellant learnt of the passing of the impugned order only on 11.08.2020 when his house was raided in the execution petition filed by the Complainant. It is submitted that immediately, the Appellant obtained the certified copy and within 30 days, filed the present Appeal. Hence, there is no delay. Reliance is placed on “State (NCT of Delhi) vs. Ahmed Jaan, 2008 (14) SCC 582”, “Housing Board, Haryana vs. Housing Board Colony Welfare Association And Others, 1996 AIR (SC) 92”, “R. B. Ramlingam vs. R. B. Bhveshwari, 2009 (1) SCC 689”and “Rita Kesh vs. Biswanath Singha, 2018 (3) CPJ 599 (NC)".

4. I have heard the arguments and have perused the relevant record.

5. The present Appeal is barred by limitation since it has been filed after a delay of 881 days of the passing of the impugned order dated 07.03.2018. It is admitted by the learned Counsel that the Appellant had participated in the trial and his Counsel had also addressed the arguments on 08.02.2018 when the matter was reserved. On enquiry, the learned Counsel has submitted that during the pendency of the proceedings before the State Commission, the Appellant had changed its address and admits that the change of address was not brought to the notice of the State Commission and to the Complainant. The State Commission apparently had the address of the Appellant on which it was served of the Complaint. There is no contention in the application that the copy of the impugned order was not sent by the State Commission to the Appellant at the address which was available with the State Commission. Further it is argued by learned Counsel that the Appellant had informed his counsel about the change of address but somehow the Counsel had not brought this fact to the knowledge of the State Commission. On enquiry, the learned Counsel has submitted that the address of the appellant was changed on 09.03.2016. It is strange that although the Appellant had changed its address on 09.03.2016 and continued participating in the proceedings till the time matter was reserved on 26.02.2018, i.e., for two years he made no efforts to bring on the record of the State Commission its changed address. It was the duty of the parties to ensure that his Counsel brings on record all the facts which are relevant. The parties cannot take the benefit of its own wrong. They have to act diligently and if they continue to sleep over their duties they cannot be allowed subsequently to take advantage of their own wrong. The Appellant had failed to discharge the obligatory duty which is casted upon him to ensure that his Counsel brings to the notice of the State Commission the changed address and the changed circumstances. He must have been aware that his Counsel has not done so because had his Counsel moved an appropriate application to bring on record the changed address of the Appellant, his Counsel must have got the affidavit singed by him. When he was aware that no such affidavit has been obtained by his Counsel for almost two years, he was aware that his Counsel had not brought to the notice of the State Commission the changed address and changed circumstances. It is nothing but a deliberate act on the part of the Appellant to conceal the material facts and material circumstances from the notice of the Complainant and the State Commission. The cases relied upon by the learned Counsel have no relevance on the facts and circumstances of the present case. The findings in those cases are given entirely on different set of facts and circumstances. The Hon’ble Supreme Court has been dealing time and again on this aspect of condonation of delay. It is a settled proposition of law that condonation of delay is not a matter of right and sufficient causes/reasons which prevented a person from filing the Revision Petition/Appeal within the period of limitation are required to be shown. It has been so held by Hon’ble Supreme Court in “Ram Lal and Ors. vs. Rewa Coalfields Limited, AIR 1962 Supreme Court 361” as under:

“12. 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.”

6. The Hon’ble Supreme Court has also held in the case of “R. B. Ramlingam vs. R. B. Bhavaneshwari, I (2009) (2) CLJ (SC) 24” that true guide to judge whether the delay is reasonable or sufficient is to see whether the Petitioner has acted with reasonable diligence. The Hon’ble Apex Court has held as under:

"5. 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. The Hon’ble Supreme Court has further cautioned this Commission in “Anshul Aggarwal vs. New Okhla Industrial Development Authority, (2011) 14 SCC 578,” that while dealing with the applications for condonation of delay under the Consumer Protection Act, 1986 the special nature of period of limitation provided therein has to be kept in mind. It has been so held:

“5. It is also apposite to observe that while deciding an

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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 Fora." 8. In view of the above, I found that the Appellant has failed to reasonably explain the delay. The application for condonation of delay has no merit and the same is dismissed. Appeal No.690 of 2020 Since the Appeal is barred by limitation, the same is dismissed in limine. Copy of this order be sent to the State Commission and to the Complainant.
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