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M/s. Ittina Properties Pvt. Ltd., Bangalore v/s P. Sosamma Nair & Others

    First Appeal No. 1618 of 2017
    Decided On, 06 April 2022
    At, National Consumer Disputes Redressal Commission NCDRC
    By, THE HONOURABLE MR. C. VISWANATH
    By, PRESIDING MEMBER & THE HONOURABLE MR. JUSTICE RAM SURAT RAM MAURYA
    By, MEMBER
    For the Appellant: Sai Kaushik, Advocate (having Authority Letter). For the Respondents: R2 to R4, S. Prasanna, Sadasiva Reddy, S. Shashank Reddy, Advocates.


Judgment Text
1. The present Appeal is filed against the order dated 10.09.2015 passed by Karnataka State Consumer Disputes Redressal Commission (in short ‘State Commission’) in Consumer Complaint No.220/2010 whereby the Consumer Complaint filed by the Complainant/Respondent No.1 was partly allowed.

2. Alongwith the Appeal, IA/11506/2017, an application for condonation of delay of 692 days has also been filed by the Appellant.

3. Heard the Learned Counsel for the Parties and carefully perused the record. Learned Counsel for the Appellant submitted that they were under the impression that the impugned order of the State Commission was to be complied by Opposite Parties Nos. 2 & 4 and not by the Appellant. The Complainant filed Execution Petition No.8/2015 against Respondents Nos.2 and 4 as well as the Appellant before the State Commission. Against the impugned order dated 10.09.2015, Respondents Nos.2 and 4 filed First Appeal No.980/2015 before this Commission wherein execution proceedings qua Respondents Nos.2 and 4 were stayed. On account of the stay order granted by this Commission cognigence in the execution proceedings was taken only against the Appellant and not against Respondents Nos.2 and 4 who were to satisfy the decree. On 20.03.2017, when the Appellant received notice of First Appeal No.980/2015, they became aware of the stay order against Respondents Nos.2 and 4. Before receiving the notice dated 20.03.2017, the Appellant was not aware of the Execution Petition No.8/2015 filed against them before the State Commission. Learned Counsel submitted that on 28.04.2017, the Appellant through its Director appeared in the execution proceedings before the State Commission and even paid a sum of Rs.1,60,000/- to the Complainant. Despite this, the Executing Court directed the Appellant to pay the entire amount. Thereafter, the Appellant decided to challenge the decree passed by the State Commission. It was further submitted that since the Appellant is based in Bangalore it took some time to engage a Lawyer in Delhi which could be done by 25.07.2017. The Appellant sent the documents to the Advocate in Delhi on 27.07.2017. The Advocate drafted the Appeal and sent it to the Appellant for approval on 30.07.2017. The Director of the Appellant approved the same on 31.07.2017 and thereafter Appeal was filed on 01.08.2017 with an inordinate delay. Learned Counsel also submitted that the delay was inadvertent and unintentional. If the delay is not condoned, the Appellant would suffer grave prejudice and irreparable loss.

4. Learned Counsel for Respondents Nos.2 to 4 submitted that they had not received even a single paisa from the Complainant. The agreement was between the Complainant and the Appellant. The amount was also received by the Appellant and the decree was also to be satisfied by the Appellant. He submitted that the Appeal qua Respondents Nos.2 to 4 is not maintainable and liable to be dismissed.

5. Learned Counsel for Respondent No.1/Complainant submitted that the Appeal filed by Opposite Party No.1 is hopelessly barred by limitation and the same is liable to be dismissed. He submitted that the Appellant willfully evaded compliance of the impugned order and now the Appeal filed after expiry of more than one and a half years is not maintainable.

6. Main ground taken by the Appellant for condonation of delay is that they were under the impression that the impugned order of the State Commission was to be complied by Opposite Parties Nos.2 & 4 and not by them. This argument is belied on reading of the impugned order dated 10.09.2015, which reads as follows:-

“The above complaint is partly allowed holding that that the complainant is entitled for a sum of Rs.15,78,000/- with interest @ 18% p.a. from the date of respective payment till realization from OPs 1 to 4 who are jointly and severally liable to pay the same. However, OP Nos. 2 to 4 are at liberty to exercise their right if any against OP No.1 under the sharing agreement entered into between them and also the indemnity given by OP No.1 to them.”

7. From the above it is clear that the State Commission had directed that the Complainant was entitled to recover the amount with interest from OPs 1 to 4 who were jointly and severally liable to pay the same. In the Complaint case, Appellant was Opposite Party No.1. There is no doubt that the decree was to be satisfied by all the Opposite Parties including the Appellant. The argument of the Learned Counsel for the Appellant that they were not aware that the impugned order was to be complied by them, is rejected.

8. In para 7 of the application for condonation of delay, it is admitted by the Appellant that they had paid a sum of Rs.1,60,000/- to the Complainant in the execution proceedings and the Executing Court had directed them to make payment of substantial amount. There is inter se dispute between the Appellant/Opposite Party No.1 on one hand and the Respondents Nos.2 to 4/Opposite Parties Nos. 2 to 4 regarding compliance of the impugned order. Compliance of the impugned order is to be decided by the Executing Court and not by this Court. We are only concerned that the Appeal has been filed with an inordinate delay, which the Appellant failed to reasonably explain.

9. 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 vs. R. B. Bhavaneshwari, 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.”

10. 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. Vs. Rewa Coalfields Limited, AIR 1962 Supreme Court 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.”

11. 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. Vs. The Spl. Land Acquisition Officer, 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 bonafide 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 bonafide 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 alias Bharti AIR 2011 SC 1150 L2011 AIR SEW 1233); and ManibenDevraj Shah V. Municipal Corporation of Brihan Mumbai, AIR 2012 SC 1629: (2012 AIR SCW 2412).

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 “dura lexsedlex” 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.

………..

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”.

12. Also in the case of “Anshul Aggarwal Vs. New Okhla Industrial Development Authority (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."

13. In a recent judgment the Hon’ble Supreme court observed that condonation of delay would depend on the background of each and every case; and routine explanation would not be enough. The Hon’ble Supreme Court in University of Delhi vs. Union of India & Ors. in Civil A

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ppeal Nos.94889489 of 2019 (Arising out of SLP (Civil) Nos.55815582 of 2019) decided on 17.12.2019 has held as under: - “The consideration for condonation of delay would not depend on the status of the party namely the Government or the public bodies so as to apply a different yardstick but the ultimate consideration should be to render even handed justice to the parties. Even in such case the condonation of long delay should not be automatic since the accrued right or the adverse consequence to the opposite party is also to be kept in perspective. In that background while considering condonation of delay, the routine explanation Page 24 of 34would not be enough but it should be in the nature of indicating “sufficient cause” to justify the delay which will depend on the backdrop of each case and will have to be weighed carefully by the Courts based on the fact situation ……. That apart when there is such a long delay and there is no proper explanation, laches would also come into play while noticing as to the manner in which a party has proceeded before filing an appeal.” (emphasis supplied) 14. In view of the above, we find no sufficient ground to condone the delay. The application for condonation of delay is accordingly rejected. As a consequence, First Appeal is also dismissed being barred by limitation.
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