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R.L. Choudhary v/s Skynet Word Wide Express Pvt. Ltd.

    Miscellaneous Application No. 146 of 2017 In RP/1243/2010
    Decided On, 03 May 2019
    At, National Consumer Disputes Redressal Commission NCDRC
    For the Appellant: Ram Niwas Buri, Advocate. For the Respondent: R1, R2 & R3, Nemo.

Judgment Text
MA No.146 of 2017 has been filed for restoration of the revision petition No.1243 of 2010 which was dismissed in default vide order dated 02.11.2015 passed by this Commission. This revision petition was filed against the order dated 11.11.2009 of the State Commission passed in Appeal No.427 & 442 of 2007. The complainant as well as the opposite parties both filed revision petition being Nos.1243 of 2010 & 4541 of 2009 respectively before this Commission. Both the revision petitions were dismissed in default and for non-prosecution vide order dated 02.11.2015 passed by this Commission. MA has been filed on 27.03.2017. As per Regulation No. 14 (ii) of the Consumer Protection Regulations, 2005 only 30 days period is allowed to file the application for restoration. However in the present case restoration application has been filed with a delay of about 15 months. Along with MA, the application for condonation of delay has also been filed. A perusal of this application indicates that the applicant is putting all the blame on the concerned Advocate Ms. Aarohi Bhalla, Advocate, who was handling the case of the applicant. It has been stated that the applicant tried to contact his counsel Ms. Aarohi Bhalla, but he could not respond, therefore, he could not get the information of dismissal of his revision petition. It is also stated in the application that the applicant then engaged another counsel, who inspected the file and gave the information on 21.03.2017 that the revision petition was dismissed on 02.11.2015. Immediately, the MA for restoration has been filed on 27.03.2017. In these circumstances, it has been requested to condone the delay in filing the restoration and to restore the revision petition at its original number.

2. Heard the learned counsel for the applicant who mentioned the same circumstances as mentioned in the application for condonation of delay and argued that he has a strong case on merits and if the restoration is not allowed, he would suffer irreparable loss.

3. I have considered the arguments advanced by the learned counsel for the applicant and have examined the record. Entrusting a case to a counsel does not absolve the party all together and the responsibility to pursue the case remains with the party because he will be affected by any order passed by the court. A period of 30 days is provided for filing the restoration application in the Regulation No.14 of the Consumer Protection Regulations, 2005. This Regulation reads as under:

14. Limitation.-(1 )

(ii) Application for setting aside the ex-parte order under section 22A or dismissal of the complaint in default shall be maintainable if filed within thirty days from the date of the order or date of receipt of the order, as the case may be;

4. Based on the above Regulation, it is clear that an application after a lapse of 30 days from the date of impugned order or from the date of knowledge of the order would not be maintainable. In the present case, the order was passed on 02.11.2015 and the order dated 02.11.2015 was communicated to the counsel of both the parties on 19.11.2015 as reported by the Registry on enquiry. As claimed by the complainant in the application for condonation of delay that the complainant came to know this order dated 02.11.2015 on 21.03.2017 when his new counsel inspected the file, clearly the petitioner did not bother to pursue his case for a long time, otherwise he could not have waited for such a long time to contact a new counsel. Thus, clearly the restoration application has been filed with a delay beyond 30 days and according to Consumer Protection Regulation No.14(ii), the application for restoration is not maintainable. In taking this view, this Commission is supported by decision of the Hon’ble Supreme Court in Oil and Natural Gas Corporation Limited Vs. Gujarat Energy Transmission Corporation Limited & Ors., (2017) 5 SCC 42, wherein the Hon’ble Supreme Court has observed the following:-

“18. ……. The review application was presented before the Tribunal on 10-1-2008. The main order as has been stated earlier was passed on 28-9-2007. Thus, the application for review was filed after expiry of 60 days, that is to say, the limitation that is prescribed for filing of an appeal before this Court. In such a situation it cannot be said that there has been any kind of due diligence on the part of the appellant. Therefore, the observations made in para 9 of Suryachakra Power Corpn. Ltd. do not assist the respondent.

19. Another aspect needs to be adverted to Mr. Agrawal submits that when the delay in review was condoned by this Court, the appellant should not be permitted to raise a preliminary objection. Suffice it to say, it is not an application under Section 5 of the Limitation Act which is to be entertained by the Court. We are singularly concerned with entertaining of an application for condonation. If the delay is statutorily not condonable, the delay cannot be condoned. There is no impediment to consider the preliminary objection at a later stage. That will be in consonance with the statutory provision. Needless to say, the order passed by this Court condoning the delay has to be ignored and we do so.”

5. Negligence on the part of the Advocate cannot always be taken as a ground by a party for condoning the delay. Hon’ble Supreme Court of India in Salil Dutta Vs. T.M. and M.C. Private Ltd. 1993 SCR (1) 794 has held the following:-

“The advocate is the agent of the party. His acts and statements, made within the limits of authority given to him, are the acts and statements of the principal i.e. the party who engaged him. It is true that in certain situations, the Court may, in the interest of justice, set a side a dismissal order or an ex-parte decree notwithstanding the negligence and/or misdemeanour of the advocate where it finds that the client was an innocent litigant but there is not such abso lute rule that a party can disown its advocate at any time and seek relief. No such absolute immunity can be recognised. Such an absolute rule would make the working of the system extremely difficult. The observations made in Rafiq must be understood in the facts and circumstances of that case and cannot be understood as an absolute proposition. As we have mentioned hereinabove, this was an on-going suit posted for final hearing after a lapse of seven years of its institution. It was not a second appeal filed by a villager residing away from the city, where the Court is located. The defendant is also not a rustic ignorant villager but a private limited company with its head-office at Calcutta itself and managed by educated businessmen who know where their interest lies. It is evident that when their applications were not disposed of before taking up the suit for final hewing they felt piqued and refused to appear before the court. May be, it was part of their delaying tactics as alleged by the plaintiff. May be not. But one thing is clear they 'chose to non-cooperate with the court. Having adopted such a stand towards the Court, the defendant has no right to ask its indulgence. Putting the entire blame upon the advocate and trying to make it out as if they were totally unaware of the nature or significance of the proceedings is a theory which cannot be accepted and ought not to have been accepted.”

6. Similarly, Hon’ble High Court of Delhi at New Delhi, in Moddus Media Pvt. Ltd. Vs. M/s. Scone Exhibition Pvt. Ltd. RFA No.497 of 2017, decided on 18.5.2017, has held that:-

“11. The litigant owes a duty to be vigilant of his rights and is also expected to be equally vigilant about the judicial proceedings pending in the court of law against him or initiated at his instance. The litigant cannot be permitted to cast the entire blame on the Advocate. It appears that the blame is being attributed on the Advocate with a view to get the delay condoned and avoid the decree. After filing the civil suit or written statement, the litigant cannot go off to sleep and wake up from a deep slumber after passing a long time as if the court is storage of the suits filed by such negligent litigants. Putting the entire blame upon the advocate and trying to make it out as if they were totally unaware of the nature or significance of the proceedings is a theory put forth by the appellant/applicant/defendant company, which cannot be accepted and ought not to have been accepted. The appellant is not a simple or rustic illiterate person but a Private Limited Company managed by educated businessmen, who know very well where their interest lies. The litigant is to be vigilant and pursue his case diligently on all the hearings. If the litigant does not appear in the court and leaves the case at the mercy of his counsel without caring as to what different frivolous pleas/defences being taken by his counsel for adjournments is bound to suffer. If the litigant does not turn up to obtain the copies of judgment and orders of the court so as to find out what orders are passed by the court is liable to bear the consequences.”

7. Moreover, it is seen that nothing is mentioned in the application for condonation of delay regarding any communication between the petitioner and the advocate. No explanation has been given in the application for condonation of delay by the petitioner for the period from 02.11.2015 till 21.3.2017. Special periods of limitation have been prescribed in the Consumer Protection Act, 1986, its Rules 1987 and Regulations, 2005 for speedy disposal of consumer disputes. Hon’ble Supreme Court in Anshul Aggarwal vs. New Okhla Industrial Development Authority, IV (2011) CPJ 63 (SC) has laid down that;

“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.”

8. Decision of Anshul Aggarwal (Supra) has been reiterated in CicilyKallarackalVs. Vehicle Factory, IV (2012) CPJ 1(SC) 1, wherein Hon’ble Supreme Court observed;

“4. This Court in Anshul Aggarwal v. NOIDA, (2011) CPJ 63 (SC) has explained the scope of condonation of delay in a matter where the special Courts/ Tribunals have been constituted in order to provide expeditious remedies to the person aggrieved and Consumer Protection Act, 1986 is one of them. Therefore, this Court held that while dealing with the application for condonation of delay in such cases the Court must keep in mind the special period of limitation prescribed under the statute (s).

5. In the instant case, condoning such an inordinate delay without any sufficient cause would amount to substituting the period of limitation by this Court in place of the period prescribed by the Legislature for filing the special leave petition. Therefore, we do not see any cogent reason

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to condone the delay. 6. Hence, in the facts and circumstance of the case as explained hereinabove, we are not inclined to entertain these petitions. The same are dismissed on the ground of delay.” 9. In R.B. Ramlingam Vs. R.B. Bhavaneshwari, 2009 (2) Scale 108, Supreme Court observed:- “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. The above quoted authoritative judgments are fully applicable in the facts and circumstances of the present case. Negligence and deliberate inaction are clearly imputable to the petitioner in filing the present restoration application. In this perspective, I do not find any merit in the application for condonation of huge delay of 481 days in filing MA No.146 of 2017 for restoration of revision petition which was dismissed on 02.11.2015 in default and for non-prosecution. Accordingly, the application for condonation of delay is dismissed and consequently MA No.146 of 2017 is also dismissed.