Bhoomi Tractors Sales And Service vs BRANCH MANAGER , Nileshchandra C. Patel

THERE is delay of 735 days in filing the first appeal before the State Commission. The State Commission dismissed the appeal on this very ground. Learned counsel for the petitioner has invited our attention towards the application moved before the State Commission for condonation of delay. The delay has been explained in paras 2 and 3 which are reproduced as follows:- "2.That the present applicant was not at all served with the notice to the complaint and therefore not able to resist the complaint. The applicant has to the complaint from Hon ''ble Forum form which it is clearly ascertain that no seal or signature was made by the present applicant on that acknowledgement and only ''Star mark '' like sign was drawn on that. It is further submitted that present applicant has closed business and the premises was sold somewhere in 2010 therefore notice of execution was also not served to the applicant. 3. It is submitted that the upon hearing about the order passed by Hon ''ble Valsad forum, the present applicant has inquired about the order and came to know about filing of complaint by present respondent No. 1. On further inquiry with office of Hon ''ble forum present applicant also came to know that free copy of order was not at all sent to the present applicant and present applicant has obtained certified copy of the order from Hon ''ble forum on 10/01.2012 and then after preferred an appeal on 13/01/2012 with an actual delay of 4 days. It is submitted that the actual delay caused from the receipt of the copy of order is 4 days but delay from the date of passing of the order is of 735 days. It is submitted that as per the ruling of Hon ''ble Supreme Court the delay should be calculated form the receipt of the free copy of order but as the free copy of the order was not sent to the applicant the appeal is preferred with an actual delay of 4 days from the date of receipt of the order and with a technical delay of 735 days from the date of passing of the order. It is respectfully submitted that the delay of 4 days caused in filing appeal due to non-receipt of the certified copy of the record and due to weekend holidays. It is submitted that present applicant was not aware about filing of the complaint because the complaint filed by the complainant against some Rajubhai Halani in capacity of the proprietor of applicant firm, but in fact the applicant firm was a partnership firm and not having any partner or employee named Rajubhai Halani therefore the notice to the complaint was not served to the applicant firm and applicant cannot able to file appeal in time. "

WE have heard the learned counsel for the petitioner. The submission made by him is that he was not served by the District Forum. This plea does not hold much water. We have seen the original record. From the District Forum ''s record, it clearly goes to show that the registered A.D. was sent at the correct address. It was signed by somebody. The counsel for the petitioner opined that this does not bear the signatures but somebody has made a "star ". The original A.D. card is available on the record. It clearly goes to show that prima facie it is established that service stood affected upon the petitioner. It is the petitioner and nobody else who is to carry the ball in proving that who had received the registered A.D. or has made the star in order to pull the wool in the eyes of law.

THE petitioner has failed to rebut the above said evidence. He should have moved an application before the State Commission that he wanted to examine the postman. In absence of the examination of postman, the value of the case of the petitioner evanesces. It stands proved that the service was affected upon the petitioner and he did not appear deliberately before the District Forum.

IT is thus clear that the application moved before the State Commission was hopelessly barred by time. In para 3 of the impugned order, the State Commission observed: "3. Mr. Dudhiya has argued that the original notice of the complaint has not been served upon the applicant. On perusal of the postal acknowledgement, it transpires that the notice has been served upon Rajubhai Halani, Proprietor of Bhoomi Tractors Sales and Service. A reference be made yet to the notice correspondence between the parties. Notice dated 14.12.20-07 addressed by Shri F.A. Gadiwala to the applicant and the reply to the said notice by the applicants ''s advocate Mr. Ayaz Shaikh dated 25.4.2008 show that it has been replied for and on behalf of Shri Raju Halani, Proprietor of the applicant firm and he has been served with the notice of the complainant. We, therefore, do not subscribe to the view of Mr. Dudhiya that Raju Halani has nothing to do with the applicant i.e. Bhoomi Tractors.

It must be borne in mind that the appeal of the petitioner was dismissed as it was hopelessly barred by time. However, the petitioner was negligent in filing this revision petition after a period of 177 days. Alarm bells should have rung and this case should have been filed in time. The further delay of 177 days clearly reveals negligence, inaction and passivity on the part of the petitioner.

IN his application for condonation of delay, the following averments were made. That after the verdict rendered by the State Commission, the petitioner contacted his lawyer at Delhi who expressed huge costs for filing the revision petition. The petitioner was not in a position to incur such a heavy amount. During the execution proceedings, bailable warrants were issued against him for payment. Time was granted to approach the National Commission and to obtain the stay order. His appeal was wrongly dismissed on technical grounds and not on merits. The order from the District Forum was obtained by fraud.

ALL these facts do not go to explain the delay. The petitioner has failed to explain the delay to our satisfaction. He has put forward a lame excuse with which no value can be pinned. In Anshul Aggarwal v. New Okhla Industrial Development Authority, IV (2011) CPJ 63 (SC), it has been held 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 ".

SIMILAR view was taken in Ram Lal and Others v. Rewa Coalfields Ltd., AIR 1962 Supreme Court 361, Balwant Singh (dead) Vs. Jagdish Singh and Ors. (Civil Appeal no. 1166 of 2006), decided on 08.07.2010, Bikram Dass Vs. Financial Commissioner and others, AIR, 1977 SC 1221 and Chief Post Master General and Ors. Vs. Living Media India Ltd. and Anr. 2012 STPL(Web) 132 (SC).

THE case is therefore hopelessly barred by time. Therefore, we dismiss the revision petition and impose costs of Rs.10,000/- which be deposited with the Consumer Welfare Fund established by the Central Government under Section 12(3) read with Rule 10-A of the Consumer Protection Rules, 1987 of the Central Excise Act, 1944 within two months from today, failing which it will carry interest @9% per annum till its realization. Learned Registrar of this Commission shall see compliance of the order under Section 25 of the Consumer Protection Act, 1986.