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Judgment
M /s. Dooab Exim Private Limited, through its Managing Director Ashwani Kumar Jain has filed this Consumer Complaint claiming deficiency of service on the part of the opposite party in respect of ECGC policy issued in favour of the complainant in respect of the export consignment of readymade garments seeking the prayer as under: "(i) To issue an order or direction to the respondent to settle the claim of the insured amount for which the premium has been paid to the ECGC.
(ii) To issue any other writ, order or direction which this Hon''ble Forum may deem fit and proper in the circumstances of the case and
(iii) Award costs of the complaint to the complainant."
The complaint, however, has been filed after the expiry of two years period of limitation from the date on which cause of action arose with a delay of almost eight years. The complainant, therefore, has moved IA No. 1/2012 seeking condonation of delay.
BEFORE adverting to the explanation given by the complainant for delay in filing of complaint, it would be appropriate to have a look on some important dates. The consumer complaint was filed on 10.10.2012. As per the list of events detailed by the complainant, subject insurance policy was obtained by the complainant in January 2002. The default committed by the foreign buyer was reported to the OP on 12.6.2004. The claim form was submitted by the complainant on 3.9.2004. The OP rejected the claim of the complainant on 29.8.2004. From this, it is evident that cause of action for filing of the complaint lastly arose on 28.9.2004. Admittedly, the complaint has been filed after the expiry of almost eight years from the date on which the cause of action arose. Thus, the complaint is hopelessly time barred. Learned Mr. Pawan Kumar Ray, Advocate for the complainant has taken us through the application of condonation of delay and contended that delay in filing of complaint is unintentional and it has occurred mainly because of the wrong legal advice under which the petitioner bona fide filed a writ petition in Hon''ble High Court of Calcutta challenging the repudiation of claim by the OP. It is contended that the writ petition was diligently perused but it was ultimately dismissed on 1.4.2010 on the ground that an alternative remedy was available to the complainant. It is further contended that after the dismissal of the writ petition the complainant was prevented from filing the consumer complaint because he was under tremendous shock and pressure. There were several criminal cases pending against the complainant and trial of one of those cases pending before Special CBI Court at Ghaziabad was going on almost on day to day basis. That on 15.9.2011, the complainant was convicted and sentenced to imprisonment of five years. The complainant, thus, filed a criminal revision before the Hon''ble High Court of Allahabad and he was granted bail on 17.10.2011. Learned Counsel has contended that even thereafter, the complainant could not file the consumer complaint because he was under financial crises and was not having funds to meet the expenses of Court fee to file a civil suit or to engage a Counsel. It was argued that later on complainant was advised to file the consumer complaint for deficiency in service on the part of the OP and the complainant filed the instant complaint. Learned Counsel for the complainant has thus submitted that delay caused in filing of the complaint is unintentional. Therefore, it should be condoned.
BEFORE adverting to the submissions made on behalf of the complainant, it would be useful to have a look on the law relating to the condonation of delay. In Ram Lal and Ors. v. 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 Section 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 inquiry 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 v. R.B. Bhavaneshwari, : I (2009) SLT 701 : I (2009) CLT 88 (SC) : 2009 (2) Scale 108, Apex Court has 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.
FROM the above enunciated position in law, it is clear that in order to succeed on the application of condonation of delay, the complainant is required to show sufficient cause which prevented him from filing the complaint within the period of limitation of two years from the date of cause of action as prescribed under Section 24A of the Consumer Protection Act, 1986 (in short, ''the Act''). We are not satisfied with the above noted explanation for the delay given by the complainant. As per the explanation given, the main cause which prevented the complainant from filing the complaint within limitation is that the complainant on wrong legal advice under mistaken belief challenged the repudiation of his claim by the Insurance Company in a writ petition filed Hon''ble High Court of Allahabad which was dismissed after six years on 1.4.2010 on the ground that an alternative remedy was available to the complainant. Even if above explanation is accepted then also the complaint should have been filed within a reasonable period after dismissal of the writ petition on 1.4.2010. The complaint, however, has been filed on 10.10.2012 i.e. more than two years after the dismissal of the writ petition. The explanation for the aforesaid delay in filing of the complaint after the dismissal of writ petition is that the petitioner was under tremendous shock as he was undergoing criminal trials and in one of those cases, he was convicted and sentenced to undergo imprisonment of five years on 15.9.2011. It is contended by learned Counsel for the complainant that on his conviction, the complainant was taken into custody and he remained in jail till 17.10.2011 when he was granted bail by the High Court. This explanation for delay in our view is not acceptable for the reason that even if Ashwani Kumar Jain, Managing Director of the complainant company was undergoing trial, the other directors or the person incharge of management of the company could easily have filed the consumer complaint in absence of Ashwani Kumar Jain. This, however, is not the case and there is no explanation why in absence of the Managing Director, the other persons having control of the management did not take initiative to file the consumer complaint within the period of limitation. Lastly, it is contended that the petitioner was prevented from filing of the consumer complaint in time because he was under a huge financial crunch and was unable to pay the Court fee involved for filing a civil suit. We do not find merit in this explanation for the reason that no Court fee is required to be paid for filing the consumer complaint. Otherwise also, the complainant has not filed any document to substantiate his plea that the complainant company was in financial constraint at the relevant time. Thus, under the circumstances, we do not find merit in the explanation given for the inordinate delay of eight years in filing of the complaint. The request of condonation of delay is thus declined. In view of the discussion above, IA No. 1 of 2012 of condonation of delay is dismissed. As the application for condonation of delay has been dismissed, the consumer complaint is also dismissed as barred by limitation.