CITIBANK N.A.KANAK BUILDING vs PRADEEP KUMAR PATRI

BY way of present revision petition, there is challenge to order dated 1.6.2011 passed by Orissa State Consumer Disputes Redressal Commisison, Cuttack (for short "State Commission") as well as order dated 22.1.2008 passed by District Consumer Disputes Redressal Forum, Bhubaneshwar (for short "District Forum").

BRIEF facts are that complainant/respondent No.1, purchased a TATA Indica car to use it for commercial purpose to maintain his livelihood. Total cost of the car was Rs.3,42,000/-. It was purchased on finance provided by the petitioner. Respondent No.1 made down payment of Rs.66,690/- and availed loan of Rs.2,75,308/-, which was repayable in 60 EMIs at the rate of Rs.6,200/-. Respondent No.1 paid 60 post dated cheques for the said amount. Petitioner did not furnish accounts statement to respondent No.1, as to the outstanding dues payable by him. However, the vehicle was un-authorizedly repossessed on 22.10.2006. Respondent No.1 approached the petitioner for release of the vehicle but it was not heeded to. Hence, respondent filed a complaint before District Forum. In reply, petitioner stated that, as respondent No.1 did not pay the installments in time, it was repossessed pursuant to the stipulation in the contract, under which the loan was borrowed by him. Some post dated cheques bounced for which some installments could not be realized. As several installments were due, the vehicle was repossessed and it was resold on 30.11.2006 to one Raj Motor of Chhattisgarh State. Since, vehicle was repossessed and resold by the petitioner, as per stipulations under the agreement, respondent No.1 deserves no relief.

District Forum, vide its order, dated 22.1.2008, allowed the complaint and passed the following order ; "O.P.1 is directed to refund Rs.1,73,935.20 to complainant. The compensation for mental agony is fixed at Rs.5,000/- and litigation cost is assessed at Rs.1,000/-. The total sum be paid to the complainant, within one month from the date of communication of this order, failing which the O.P.1 shall pay interest at the rate of 9% p.a., till the date of payment."

AGGRIEVED by the order of District Forum, petitioner filed an appeal before State Commission. Vide impugned order, the appeal was dismissed on the ground of limitation, as there was delay of three years, two months and 12 days, in filing of the appeal. It is contended by learned counsel for the petitioner that refusal to condone the delay has resulted in a meritorious matter being thrown out at the very threshold and cause of justice being defeated. While dismissing the appeal, State Commission lost sight of the fact that bonafide and sufficient cause has been shown in seeking condonation of delay. It was the counsel representing the petitioner before District Consumer Forum, Shri P.K. Das who kept petitioner in dark regarding the status of complaint. Petitioner after handing over the case papers to Shri P.K. Das, was religiously following-up the case with him. However, it is beyond understanding of the petitioner, as to why Shri P.K. Das did not inform it about passing of the order of District Forum.

IT is contended that petitioner was under bonafide belief that its case is being handled by Shri P.K. Das who is a competent lawyer. Petitioner came to know about the order of District Forum, when Officer in Charge of Shakespeare Sarani Police Station, visited office with a non-bailable arrest warrant issued in the name of its Regional Manager. It is also contended that, even on merits, petitioner has a good case, since respondent herein, has been a chronic defaulter in making repayment of loan availed by him towards finance of his vehicle. It is further contended that only observation made against petitioner is that, it sold the vehicle in question without sending any pre-sale notice to respondent No.1. Although, petitioner could not place on record the notices including the pre-sale as well as post-sale notice sent to respondent No.1, the fact of the matter is that respondent No.1, had indeed received pre and post sale notice from the petitioner and this fact was concealed from the Consumer Fora.

STATE Commission while dismissing the appeal of petitioner observed ; "When the fact of filing of the complaint was within the knowledge and the appellant/petitioner engaged counsel and contesting the CD case before the District Forum in which the impugned judgment and order was passed on 22.1.2008, taking a plea that the lawyer/counsel engaged in the case did not intimate the appellant about the result of the case cannot be a ground for condoning this inordinate delay. Apart from that, it is the duty of the appellant/Bank to enquire about the fate of the case/cases that are filed before the District Forum and for that admittedly they maintain a legal department to keep the upto date data of the same. By efflux of 3 years 2 months and 12 days, which has hopelessly time barred, the appeal has created a very valuable right in favour of the complainant/respondent no.1 " Pradeep Kumar Patri, who had filed the C.D. Case and on such flimsy ground, we are not inclined to condone the delay and take away such a valuable right of the complainant/respondent no.1. In such circumstances, after careful consideration of the facts, we reject the misc. case and the prayer for condonation of delay and consequently reject the appeal of memo on limitation ground."

AS per application for condonation of delay, entire burden for not filing the appeal has been shifted upon Shri P.K.Das, Advocate who was conducting the case on behalf of petitioner in the District Forum. Relevant averments made with regard to condonation of delay read as under ; "(a) Shri P.K.Das, Advocate of Bhubaneswar had been conducting the case on behalf of petitioner in the District Forum. The said learned Advocate, however, chose not to inform the appellant regarding the orders passed by the Hon"ble District Forum. In such circumstances, the appellant did not have any knowledge of the order passed by the Hon"ble District Forum on 22.1.2008 at Annex.3 above had no opportunity to file appeal there from to the Hon"ble State Commission. (b) To the utter shock and surprise on or about 7.3.2011, the Officer-in-Charge of Shakespeare Sarani Police Station visited the office of the appellant with a non-bailable arrest warrant issued in the name of the Regional Manager of the appellant. The appellant"s said Regional Manager intimated the Police official that he has no knowledge regarding the matter and sought for some time so that expeditious steps can be taken in the matter. In such circumstances, the Police officer of Shakespeare Sarani Police Station left."

Learned counsel for petitioner cited a decision of Apex Court, Collector, Land Acquisition Anantnag and Anr. Vs. Mst. Katiji and Ors., (1987) 2 SCC 107, in which Court observed ; "The legislature has conferred the power to condone delay by enacting Section 5 of the Indian Limitation Act of 1963 in order to enable the courts to do substantial justice to parties by disposing of matter on "merits". The expression "sufficient cause" employed by the legislature is adequately elastic to enable the courts to apply the law in a meaningful manner, which sub-serves the ends of justice -- that being the life-purpose for the existence of the institution of courts."

In case of Collector, Land Acquisition Anantnag (supra) there was delay of only four days in filing of the appeal. It was in that context the Court made the above observations.

IN the case in hand, there has been delay of more than three years and two months in filing of the appeal. State Commission while considering this inordinate delay on the part of the petitioner which was unexplained, rightly dismissed the appeal. Petitioner is a Multi-National Bank having large number of employees in its legal department. On the one hand, petitioner in revision petition had taken the plea that after handing over the case papers to Shri P.K. Das, Advocate, it religiously followed up the case with him. In the same breath, petitioner in application for condonation of delay took the plea that, earlier counsel did not inform about the decision of District Forum"s order.

SINCE, as per petitioner"s own case, it was religiously following up the case with the previous counsel, now it does not lie in its mouth to shift entire burden on the previous counsel. It was the duty of petitioner who was religiously following up the case, to have filed appeal before the District Forum, within the period of limitation. Thus, petitioner itself is negligent in not filing the appeal, within the time. Moreover, there is nothing on record to show that petitioner ever tried to contact Shri P.K.Das, Advocate and ever asked for copy of the order passed by the District Forum. There is no explanation in this regard nor the same has been pleaded in the application for condonation of delay. Even, otherwise, there is nothing on record to show that petitioner ever took any action against their previous counsel by filing of any complaint before any statutory body. It is well settled that "sufficient cause" for non appearance in each case, is a question of fact. Delhi High Court in New Bank of India Vs. M/s Marvels (India): 93 (2001) DLT 558, has held; "No doubt the words "sufficient cause" should receive liberal construction so as to advance substantial justice. However, when it is found that the applicants were most negligent in defending the case and their non-action and want of bonafide are clearly imputable, the Court would not help such a party. After all "sufficient cause" is an elastic expression for which no hard and fast guide-lines can be given and Court has to decide on the facts of each case as to whether the defendant who has suffered ex-parte decree has been able to satisfactorily show sufficient cause for non appearance and in examining this aspect cumulative effect of all the relevant factors is to be seen."

In Ram Lal and Ors. Vs. Rewa Coalfields Ltd., AIR 1962 Supreme Court 361, it has been observed; "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."

SIMILARLY, in Oriental Insurance Co. Ltd. vs. Kailash Devi & Ors. AIR 1994 Punjab and Haryana 45, it has been laid down that; "There is no denying the fact that the expression sufficient cause should normally be construed liberally so as to advance substantial justice but that would be in a case where no negligence or inaction or want of bona fide is imputable to the applicant. The discretion to condone the delay is to be exercised judicially i.e. one of is not to be swayed by sympathy or benevolence."

IN R.B. Ramlingam Vs. R.B. Bhavaneshwari, 2009 (2) Scale 108, it has been 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." As no reasonable explanation for delay in filing the appeal after more than three years having been given, we hold that no sufficient cause nor any cogent reason has been shown which entitles the petitioner to have the delay condoned.

Even on merits, petitioner has no case. District Forum in categorical terms has held that no opportunity was given to the respondent/complainant by serving any pre-sale notice and without service of such notice, the vehicle was re-sold on 30.11.2006. Relevant portion of its order read as under ; "The next point for consideration is whether resale of the vehicle was justified. It is averred by the OP-1 in the written version that when the complainant did not pay the outstanding dues, the vehicle was resold on 30.11.2006. Before possession of the vehicle notice was served on the complainant for payment of the dues and this has been referred to in the written version saying that after intimation was served on the complainant he did not pay the dues. But, it is not specifically averred in the written version of the opposite parties that before resale of the vehicle, pre-sale notice was served on the complainant. It is well settled that without service of pre-sale notice on the borrower, the vehicle cannot be resold. That is for the reason that when presale notice is served, the borrower may come forward with the entire dues and secure release of the vehicle. But such opportunity was not given to the complainant by serving any presale notice and without service of such notice, the vehicle was resold on 30.11.2006. This tentamounts violation of principle of natural justice and that is how there was deficiency of service on the part of the opposite party no.1. There is nothing in the contract that after repossession of the vehicle, without service of pre-sale notice, the vehicle can be resold. Therefore, in absence of any such stipulation in the contract, the principle of natural justice cannot be said to have been followed for non service of any presale notice. In the circumstances, the complainant is entitled to get refund of the payments already made by him with the discount towards depreciation of the vehicle for a period of four years as the vehicle was purchased in the year 2003 and it was resold in the year 2006."

IT is well settled that under Section 21 (b) of the Consumer Protection Act, 1986, scope of revisional jurisdiction is very limited. Recently, Hon"ble Supreme Court in Mrs. Rubi (Chandra) Dutta Vs. M/s United India Insurance Co. Ltd. 2011 (3) Scale 654 has observed ; "Also, it is to be noted that the revisional powers of the National Commission are derived from Section 21 (b) of the Act, under which the said power can be exercised only if there is some prima facie jurisdictional error appearing in the impugned order, and only then, may the same be set aside. In our considered opinion there was no jurisdictional error or miscarriage of justice, which could have warranted the National Commission to have taken a different view than what was taken by the two Forums. The decision of the National Commission rests not on the basis of some legal principle that was ignored by the Courts below, but on a different (and in our opinion, an erroneous) interpretation of the same set of facts. This is not the manner in which revisional powers should be invoked. In this view of the matter, we are of the considered opinion that the jurisdiction conferred on the National Commission under Section 21 (b) of the Act has been transgressed. It was not a case where such a view could have been taken by setting aside the concurrent findings of two fora."

IT is also well settled that no leniency should be shown to such type of litigants, who in order to cover up their own fault and negligence goes on filing meritless petitions in different foras. Thus, no jurisdictional or legal error has been shown to us to call for interference in the exercise of powers under Section 21 (b) of the Act. Since, two fora below have given detailed and reasoned orders which does not call for any interference nor they suffer from any infirmity or erroneous exercise of jurisdiction. Thus, present petition is hereby, dismissed with punitive costs of Rs.30,000/- (Rupees Thirty Thousand only). Petitioner is directed to deposit the costs of Rs.30,000/- in the Consumer Legal Aid Account of this Commission, within four weeks from today. In case, petitioner fails to deposit the said cost within the prescribed period, then it shall also be liable to pay interest @ 9% p.a., till realization.

LIST on 10th October, 2011 for compliance.