DR. NIRMAL CHOPRA & ANR. vs AMPRAPALI PRINCELY ESTATE

This revision petition has been filed by Dr. Nirmal Chopra & Anr.,Petitioners/Complainants against the order dated 19.02.2016 passed by the State Consumer Disputes Redressal Commission, Delhi, (in short ''the State Commission'').

Brief facts are that on a complaint filed by the petitioners herein against the opposite party/respondent, the District Consumer Disputes Redressal Forum (East) Govt. of NCT of Delhi Forum vide its order dated 26.10.2015 passed the following order:- "We allow compensation of Rs.1,00,000/- in all to both the complainants jointly and the amount shall be paid by the respondent to the complainants within 30 days from the date of service of this order failing which the complainants shall be entitled for 9% p.a. interest over this amount till it is finally paid to them."

Aggrieved with the above order of the District Forum, the respondent/opposite party filed the appeal before the State Commission along with the application for condonation of delay. The State Commission vide its order dated 19.02.2016 condoned the delay in filing the appeal and admitted the appeal for further proceedings.

Aggrieved with the order dated 19.02.2016 now the petitioners/complainants have filed the present revision.

Heard the petitioner in person. The petitioner stated that copy of the order dated 26.10.2015 of the District Forum was dispatched by post on 4.12.2015, which was delivered on 5.12.2015 as per the website of the postal department. Appeal was filed on 2.2.2016 with delay of 28 days. The petitioners further stated that they had filed a caveat on 11.12.2015 before the State Commission after advance service to the respondent and as such respondent not only had received a copy of impugned order on 05.12.2015, but also an intimation of the said order by way of caveat petition. He further stated that respondent filed appeal before the State Commission after a delay of 28 days, wherein fact of receipt of certified copy on 05.12.2015 was deliberately concealed. Based on the fact of receiving the certified copy of the order of the District Forum on 05.12.2015 by the respondent through post, which is evidenced by the receipt, confirmed by website of the postal department, the petitioners filed an application before the State Commission for taking action under Section 340 CrPC 1973. Ignoring these facts, the State Commission not only condoned the delay without specifically reaching to any conclusion about the delay of number of days, the State Commission also dismissed the petitioners'' application for proceedings under Section 340 CrPC 1973.

I have gone through the order dated 19.02.2016 passed by the State Commission, which reads as follows:-

"Appeal is accompanied by application for condonation of delay. The respondent has filed reply to the said application. Copy supplied.

Heard.

The plea of the appellant in application for condonation of delay is that it did not receive copy of impugned order dated 26.10.2015 from the District Forum, it came to know about the order on 14.12.2015 and when it received the copy of Caveat filed by respondent, it applied for certified copy which was received on 19.01.2016. There is delay of six days which is bonafide.

In reply, the respondent has filed copy of dispatch register showing that copy of order was dispatched by District Forum under postal receipt No.629571685IN which was delivered on 05.12.2015.

Without going into controversy regarding delivery or non-delivery of the postal article, even it is believed for a movement that copy was received by the appellant on 05.12.2015, there would be a further delay of 10 days making total delay to 16 days. Law regarding condonation of delay is liberal. Delay should be condoned if there is no malafide. No litigant is likely to gain by making such delay and allow hanging the sword upon his head. In the interest of justice, application for condonation of delay is allowed. Respondent has also moved an application u/s 340 CrPC for initiating proceedings of forgery against the appellant for taking false plea that he has not received copy of the order. Copy of application supplied. The appellant does not want to reply to the said application.

Heard on application.

Section 340 CrPC for is not meant for ventilating grievance of private litigants.

It is only when court deems it expedient in the interest of justice to prosecute the person for taking a false plea that section 340 can be pressed.

Viewed from that angle, we do not find it fit to initiate any proceedings u/s 340 CrPC. The application is rejected.

Heard on admission.

Appeal is admitted."

Petitioner also referred to the following judgments in support of his arguments:- (i) Kadam Brothers & Developers Vs. Unmesh Ganpatrao Sathe Sagar Raosaheb Godhare & Anr., (V (2015) CPJ 100 (NC).

(ii) PSPCL & Anr. Vs. Manoj Wadhwa, IV (2014) CPJ 507 (NC).

(iii) Jalandhar Improvement Trust, Jalandhar & Anr. Vs. Munish Dev Sharma, Sanjay Gupta, IV (2015) CPJ 309 (NC).

I have perused the judgments referred to by the petitioners. The facts in these cases are totally different. In cases of Kadam Brothers & Developers (supra) and PSPCl & Anr. (supra) are in connection with submitting vague application for condonation of delay, whereas in the present case the application for condonation of delay filed before the State Commission mentions specific reason for the delay. Both these Kadam Brothers & Developers (supra) and PSPCl & Anr. (supra) judgments are not accordingly applicable in the present case. Similarly, Jalandhar Improvement Trust, Jalandhar & Anr. (supra) relates to the wilful defiance and conduct of the applicant. This judgment itself mentions that the delay of 30 days ought to have been condoned but for the conduct of the applicant. Thus, this judgment is also not directly applicable to the facts of the present case wherein delay, in any case, is less than 30 days.

The petitioners'' case is that there is a delay of 28 days whereas the State Commission has considered the delay of 6 to 16 days. The basic underlying intent of the order of the State Commission is that law for condonation of delay is liberal. I agree with the view of the State Commission that for smaller delays the merit should not be sacrificed for technical reason of delay. As both parties are appearing in the appeal before the State Commission, I am of the view that no prejudice would be caused to the petitioners, if the appeal is heard and decided on merits. Revisional power of this Commission is limited to see whether any illegality, material irregularity or jurisdictional error has been committed in the order passed. The Consumer Protection Act, 1986 under Section 15 provides for appeals before the State Commission and the Section reads as follows:- "15. Appeal. - Any person aggrieved by an order made by the District Forum may prefer an appeal against such order to the State Commission within a period of thirty days from the date of the order, in such form and manner as may be prescribed:

Provided that the State Commission may entertain an appeal after the expiry of the said period of thirty days if it is satisfied that there was sufficient cause for not filing it within that period: ----"

From the above Section 15 of the Consumer Protection Act, 1986, it is apparent that the State Commission has powers to condone the delay in admitting the appeal if it is satisfied that it was not possible for the appellant to file the appeal within the prescribed time period. Hence no illegality, material irregularity or jurisdictional error has been committed by the State commission in this regard. Similarly, in the circumstances of the case, the order passed by the State Commission in respect of the petitioners'' application for proceedings under Section 340 CrPC also seems justified because the basic aim of a consumer court is to decide the consumer dispute for which the opportunity was provided to both the parties by the State Commission buy allowing the application for condonation of delay.

Based on the above discussions, I find no illegality, material irregularity or jurisdictional error in the order dated 19.2.2016 of the State Commission that calls for any interference by this Commission. Accordingly, I find no merit in the revision petition and the same is dismissed in limine.