Dishti Industries Pvt Ltd vs NEW INDIA ASSURANCE CO LTD

APPELLANT /Complainant has filed the present appeal under Section 19 of the Consumer Protection Act, 1986 challenging the impugned order dated 22.6.2011 passed by State Consumer Disputes Redressal Commission, Maharashtra, Mumbai (for short, ''State Commission'') in Complaint Case No.98/2008, vide which the complaint was dismissed in default.

ALONGWITH it, an application seeking condonation of delay has been filed in which no period of delay has been mentioned. Be that as it may, as per office note, there is delay of 1232 days.

APPELLANT filed the consumer complaint in the year 1998. On 22.6.2011 when complaint was listed before the State Commission it was dismissed in default, vide impugned order which read as under; "Both the parties absent, though intimation of today''s date was given by the Registered Post Acknowledgement Due through Commission, which was sent on 06/06/2011 as per the postal receipt on record. Acknowledgement Due Receipt is also on record. Under the circumstances, the complaint is dismissed for default."

In the grounds of appeal, appellant has stated that in the month of March, 2013, appellant came to know that other Consumer Complaint before the State Commission bearing No.350 /1997, against the same opposite party and being handled by the same office was finally adjudicated and therein the lawyers were not present. Thereafter, only on 24.12.2013, appellant after having realized the patent negligence of the lawyers, sought to obtain the certified copy of the order. The limitation period for filing the review application before this Commission was already over. The appellant has an excellent case on merits and negligence if any, is on account of the Advocate alone.

WHEREAS , in the application for condonation of delay it is stated by the appellant, that it got the knowledge of the impugned order only on 24.12.2013 when it checked the website of the State Commission. The detail of the impugned order of dismissal were never conveyed to the appellant by its lawyer.

THUS , appellant has put entire blame on its Advocate who was pursuing the matter before the State Commission.

IT is well settled that "sufficient cause" for condoning the delay in each case is a question of fact.

IN Ram Lal and Ors. Vs. Rewa Coalfields Ltd., 1962 AIR(SC) 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, the Apex 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."

HON ''ble Supreme Court after exhaustively considering the case law on the aspect of condonation of delay observed in Oriental Aroma Chemical Industries Ltd. Vs. Gujarat Industrial Development Corporation, 2010 5 SCC 459as under; "We have considered the respective submissions. The law of limitation is founded on public policy. The legislature does not prescribe limitation with the object of destroying the rights of the parties but to ensure that they do not resort to dilatory tactics and seek remedy without delay. The idea is that every legal remedy must be kept alive for a period fixed by the legislature. To put it differently, the law of limitation prescribes a period within which legal remedy can be availed for redress of the legal injury. At the same time, the courts are bestowed with the power to condone the delay, if sufficient cause is shown for not availing the remedy within the stipulated time.

The expression "sufficient cause" employed in Section 5 of the Indian Limitation Act, 1963 and similar other statutes is elastic enough to enable the courts to apply the law in a meaningful manner which sub serves the ends of justice. Although, no hard and fast rule can be laid down in dealing with the applications for condonation of delay, this Court has justifiably advocated adoption of a liberal approach in condoning the delay of short duration and a stricter approach where the delay is inordinate - Collector, Land Acquisition, Anantnag v. Mst. Katiji, 1987 2 SCC 107, N. Balakrishnan v. M. Krishnamurthy, 1998 7 SCC 123 and 10 Vedabai v. Shantaram Baburao Patil, 2001 9 SCC 106".

AGAIN Hon''ble Supreme Court in Anshul Aggarwal Vs. New Okhla Industrial Development Authority, 2011 4 CPJ 63 has held, that while deciding the application filed 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 the appeals and revisions which are highly belated are entertained. Relevant observations are 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".

IT is apparent from the record, that appellant had been pursuing the present litigation in a very casual and careless manner. Before the State Commission, appeal was dismissed in default due to non -appearance of the appellant and its counsel.

IN the appeal as well as in the application for condonation of delay, appellant has given different versions with regard to knowledge of the dismissal of its complaint before the State Commission. In appeal, .the plea of appellant is, that in the month of March, 2013, appellant came to know that other Consumer Complaint before the State Commission (bearing No.350/1997) against the same opposite party being handled by the same office was finally adjudicated and thereto his lawyers were not present.

THE other version of appellant is that, thereafter, appellant started taking extra vigil in the matter and it was only on 24.12.2013, after having realized the patent negligence of his lawyers, sought to obtain the certified copy of the order.

WE fail to understand, that when appellant itself came to know in March, 2013 that other consumer complaint has been finally adjudicated, then why it took the appellant further 9 months for obtaining the certified copy. For this long delay of 9 months, there is no explanation at all.

IN view of the contradictory stand taken up by the appellant, it is manifestly clear that it is the appellant who itself is negligent in pursuing this litigation and has tried to shift the entire blame on its counsel.

AS already observed above, appellant has been pursuing this litigation in a very casual and careless manner and before the State Commission, as neither appellant nor its counsel were present when the appeal was dismissed in default on 22.6.2011. Thereafter, appellant has taken more than 3 years for filing this appeal before this Commission. So, we do not find any sufficient ground to condone the long delay of 1232 days. Hence, application for condonation of delay is dismissed. Consequently, the present appeal stand dismissed with cost of Rs.10,000/ - (Rupees Ten Thousand only).

APPELLANT is directed to deposit above cost by way of demand draft in the name of "Consumer Legal Aid Account" within six weeks from today. In case, appellant fails to deposit the cost within the prescribed period, then it shall be liable to pay interest @ 9% p.a. till realization.

LIST on 17.7.2015 for compliance.