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Prakash Kumar Biswal Paramita Biswal & Others v/s Subham Construction, Kolkata & Others

    First Appeal No. 1738 of 2018

    Decided On, 29 May 2019

    At, National Consumer Disputes Redressal Commission NCDRC

    By, THE HONOURABLE MR. C. VISWANATH
    By, PRESIDING MEMBER

    For the Appellants: Soumya Dutta, Advocate. For the Respondents: -------



Judgment Text

1. The present Appeal is filed by the Appellant 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. 165/2013 dated 08.12.2017.

2. The Appellants/Complainant’s case is that on 21.07.2011, Respondent/Opposite Party No. 1 executed the deed of conveyance in favour of all the Complainants. However, after taking possession, the complainants found several deficiencies in the construction of flats in the Project “Capricorn Springfield” situated in Kolkata. The Appellants filed the complaint for compensation of Rs.2,35,000/- each for the 21 complaints before the State Commission. The complaint was dismissed on the ground that State Commission lacked pecuniary jurisdiction to entertain the complaint. The Complainants did not take any pain to appoint any technical personnel or expert in accordance with section 13(4) of the Act to prove the alleged deficiency on the part of the Developer. Therefore, on merit also the complaint was dismissed.

3. Aggrieved by the order passed by the State Commission, the Appellant filed the present Appeal before this Commission.

4. I have heard the Learned Counsel for the Appellant and also carefully perused the record.

5. I.A. No. 18112/2018 is an application for condonation of delay in filing the Appeal. The Application has been filed for condoning the delay of 262 days in filing the Appeal. The State Commission passed order on 8.12.2017 and the Appellants state that they became aware about the order in the month of Feb. 2018 and obtained a copy of the same. The only reason given for delay is the time taken in following up with the Advocates and financial crises due to which the Appellants could not finalise the appeal in time. Neither any adequate explanation nor sufficient cause or justification has been given for filing the appeal with a delay of nearly 9 months, after deducting the prescribed period of 30 days for filing the appeal.

6. The Appellants appear to have not acted diligently and remained inactive for fairly a long time. The Hon’ble Apex Court held that the 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 Appellants have not been able to give adequate and sufficient reason which prevented him to approach this Commission within the limitation.

7. It is a settled proposition of law that condonation of delay is not a matter of right and the applicant has to set out the case showing sufficient reasons for not being able to come to the Court / Commissions 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.”

8. The burden is put upon the applicant to show sufficient causes 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. Theapplicantmustsatisfythe 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).

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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 “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.

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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. The Hon’ble Supreme Court has clearly 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. Also in the case of “Anshul Aggarwal Vs. New Okhla Industrial Develo

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pment 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." 11. In view of above, I 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.
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