Dharmendra Ashwin Kumar Shaha vs Dadaso Balappa Chougule

REVISION petition no. 1880 of 2013 has been filed against the order dated 31.03.2010 passed by the Maharashtra State Consumer Disputes Redressal Commission, Mumbai ( ''the State Commission '') in First Appeal no. 824 of 2008.

THE brief facts of the case gleaned from the District Consumer Disputes Redressal Forum ''s ( ''the District Forum ") Kohlapur are order as follows: As per the final order passed by the District Forum in original complaint case no. 352 of 2007, the petitioner/ opposite party no. 2 and respondent nos. 9 to 20/ OP nos. 1 and 3 to 16 have not paid the total deposited amount of Rs.9,60,413/ to the respondent nos. 1 to 8/ complainant nos. 1 to 8. The respondents preferred an application under section 27 of the Consumer Protection Act, 1986. Notice was issued to the other side and the said notices are served on the petitioners. The Chairman of the Society Dharmendra Ashwin kumar Shaha put his appearance before the Forum through his advocate and prayed for time and accordingly time was granted by the Forum. Thereafter, two dates passed and despite that, petitioner did not file their say in the matter nor paid the deposited amount of the respondents.

THE District Forum in their order dated 09.05.2008 observed that, "proceedings under section 27 of the Consumer Protection Act, 1986 are not ordinary criminal proceedings in respect of offences under the IPC or some other statute. Those are really in the nature of civil contempt proceedings. Hence, the only procedure required in these proceedings is that, the principle of natural justice should be complied with.

THE opponents are jointly and severally liable to pay the deposited amounts as ordered by the Forum in the original consumer complaint. In support of its this Forum relied upon the decisions of Appeal no. 1197 of 2003 and 1546 of 2003 order dated 04.11.2004 of Maharashtra State Consumer Disputes Redressal Commission, Mumbai in the case of Shri Dattatraya S Desai etc., vs Pratprao Ingale and Others. Therefore, considering the aforesaid discussion and case law the District Forum has passed the following order: "Chairman of petitioner/opponent ''s society Shri Dharmendra Ashwin Kumar Shaha is hereby convicted and sentenced to undergo simple imprisonment for a period of three years ".

Aggrieved by the order of the District Forum, the petitioner/ OP 2 filed an appeal before the State Commission. The State Commission vide its impugned order dated 31.03.2010 directed as under: "Appellant and its counsel remaining absent for last many dates and failed to take appropriate steps to effectively prosecute the appeal. 6. No notice as earlier directed through State Commission was issued. Further, no proof of service and service affidavit per section 28 - A of Consumer Protection Act, 1986 for correctness of address the etc. is filed. Cost imposed on 07.01.2010 are also not paid. Under the circumstances, we pass the following order: Appeal stands dismissed for want of prosecution ".

Hence, the present revision petition. Along with the present revision petition an application for condonation of delay of 186 days has been filed. However, as per the office report, there is a delay of 1042 days. The reasons given in the application are that: "It is submitted that the impugned order is passed on 31.03.2010 and the miscellaneous application for restoration was rejected by the State Commission on 17.09.2010 and the said order was communicated to the revision petitioner on 27.09.2012 and thereafter the present revision petitioner approached to the Advocate on 29.12.2012, the papers and documents were prepared by the Advocate in Mumbai and then sent to Advocate in Delhi towards the end of January 2013, i.e., 27.01.2013. Thereafter, it was found that some of the original orders of the copies were missing. Also some necessary documents and papers were not duly signed by the petitioner. The Advocate in Delhi for the petitioner sent the papers back to the petitioner ''s Advocate in Mumbai to get them duly signed and asked them to collect the order certified copies from the petitioner telephonically as well as by e mail.

MEANWHILE , the petitioner being suffering from Asthma was unable to travel to Mumbai very often to collect the required documents and hand it over to the Advocate in Mumbai. The petitioner has handed over the documents and duly signed them all to the advocate in Mumbai on 28.04.2013 (date of affidavit) by submitted before the National Commission. Accordingly, without further delay the same was dispatched from Mumbai by the Advocate to Delhi. The petitioner states that the petitioner has a good case on merits and has a very good chance to succeed in the above revision petition and hence, it is very much necessary in the interest of justice that the delay of 186 days be condoned.

IT is submitted that if the delay is not condoned the petitioner would suffer grave and irreparable loss and harm, whereas no prejudice would be caused to the respondents. The balance of convenience is also in favour of the petitioner. The delay caused to the filing the revision challenging the order passed by the State Commission, Mumbai upon the wrong proposition which is advised by the Advocate on record. Earlier, the State Commission, Mumbai has restore the matters in dismiss in default and the said proposition was continuous one and therefore, the revision petitioner upon advice given by the Advocate filed restoration application and therefore, there is a delay caused to file the revision application before this Commission. The delay which is caused to file the present revision application is not intentional and deliberate ". We have heard the learned counsel for the petitioner and have also gone through the records of the case carefully.

IN the application there are huge unexplained gaps from 27.09.2012 to 29.12.2012 and from 27.01.2013 to 28.04.2013. One of the reasons given to explain the delay was that it was that due to "wrong proposition which is advised by the Advocate on record, the petitioner had filed a Miscellaneous Application before the State Commission ". Learned counsel for the petitioner admitted, however, that even the Miscellaneous Application for restoration was filed on 01.01.2011, i.e., 9 months after passing of the order on 31.03.2010. The petitioner is supposed to explain the day to day delay, but the petitioner has failed to explain the inordinately long delay in filing the revision petition. Moreover, petitioner has failed to provide ''sufficient cause '' for the delay of 1042 days. This view is further supported by the following authorities. The apex court in the case of 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 ".

IN Balwant Singh Vs. Jagdish Singh and Ors., (Civil Appeal no. 1166 of 2006), decided by the Apex Court on 08.07.2010 it was held: "The party should show that besides acting bonafide, it had taken all possible steps within its power and control and had approached the Court without any unnecessary delay. The test is whether or not a cause is sufficient to see whether it could have been avoided by the party by the exercise of due care and attention. [Advanced Law Lexicon, P. Ramanatha Aiyar, 3rd Edition, 2005] ".

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. "

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. "

Accordingly, we find that there is no ''sufficient cause '' to condone the delay of 1042 days in filing the present revision petition. The application for condonation of delay is without any merit as well as having no legal basis and is not maintainable. Consequently, the present revision petition being time barred by limitation and is dismissed with cost of Rs.10,000/ (Rupees ten thousand only). 14. Petitioner is directed to deposit the cost by way of demand draft in the name of ''Consumer Legal Aid Account of this Commission '' within four weeks from today. In case the petitioner fails to deposit the said cost within the prescribed period, then it shall be liable to pay interest @ 9% per annum till realisation. List on 22nd November 2013 for compliance.