GAYATRI PRODUCTS vs NEW INDIA INSURANCE CO. LTD.

This revision petition has been filed by the petitioner against the order dated 09.07.2013 passed by the Gujarat State Consumer Disputes Redressal Commission, Ahmedabad, (in short, ''the State Commission'') in Appeal No. 135 of 2009 - Gayatri Products Vs. The New India Assurance Co. Ltd. by which, appeal was dismissed.

Brief facts of the case are that the complainant/petitioner filed complaint against OP/respondent for claiming Rs.10,04,061/- on account of loss caused to insured stock due to rains. Learned District Forum after hearing parties dismissed complaint. Appeal filed by complainant was dismissed by learned State Commission vide impugned order against which, this revision petition has been filed along with application for condonation of delay.

Heard learned Counsel for the petitioner on application for condonation of delay.

Learned Counsel for the petitioner submitted that delay in filing revision petition occurred due to death of earlier Advocate who was entrusted with the matter to file revision and from

whose office it was apprised that revision petition has been filed whereas, in fact, revision petition was not filed; so, delay may be condoned.

As per application for condonation of delay there is delay of 659 days whereas as per office report there is delay of 722 days in filing revision petition. Application for condonation of delay runs as under:

"4. That immediately after receiving the certified copy of the impugned order the learned advocate for the petitioner Mr. Shantanu J. Mehta set on preparing a Revision Petition to be filed before this Hon''ble Commission.

A draft of the petition was duly prepared by him on 7.9.2013. He accordingly sent the said draft of the petition along with the affidavits to be signed and made ready for filing.

That the learned advocate for the petitioner Mr. Shantanu J. Mehta unfortunately expired on 20.09.2013. But the proprietor of the petitioner firm was not aware of this fact. They were under this bona fide belief that the Revision Petition must have been filed as decided.

That on 15 October 2013, Mr. Harilal G. Dalwani, one of the th proprietor of the petitioner firm called up at advocate Shantanu J. Mehta''s office, when he was informed by the office clerk that the Revision Petition has been filed before this Hon''ble Commission and the matter was adjourned for a date somewhere in July 2014. The Clerk gave the date of some other case in all probabilities, which the proprietor of the petitioner realized subsequently. It is pertinent to mention tht the said Clerk did not inform about the sad demise of Mr. Mehta to the said proprietor.

That in August, 2014 when Mr. Harilal G. Dalwani personally visited the office of the advocate Shantanu J. Mehta and enquired about the matter, its only then he got to know that advocate Shantanu J. Mehta had unfortunately expired way back in Septembeer 2013.

That nobody in his office know the status of the case or the whereabouts of the office copy of the case file of the said Revision Petition. One advocate namely Mr. Shivam assured Mr. Harilal G. Dalwani to locate the file and tell him the next date of hearing. Mr. Harilal G. Dalwani following up the matter with Mr. Shivam after every month but he gave one or the other excuse.

That it only in the month of May 2015 that Mr. Shivam stopped taking the calls of Mr. Harilal G. Dalwani that he became suspicious as to whether the Revision has been filed at all or not. Mr. Mohalal G. Dalwani left with no option visited Delhi and met Mr. Alok Bhachawat Advocate at Bhachawat and Associates the present counsel for the petitioner and requested him to find the status of the Revision Petiton. Mr. Alok Bhachawat checked the status of the case on internet and informed that as per the website status of this Hon''ble Commission no such revision petition has been filed. He further asked Mr. Harilal G. Dalwani to come after vacations i.e. June 2015 so that the same can be checked from the registry of the Hon''ble National Commission. On reopening of the Commission the fact of non-filing of the Revision Petition was verified and then the present counsel asked Mr. Harilal G. Dalwani to get all the documents for filing the present Revision Petition.

That as the proprietor of the petitioner firm was not having any documents including the certified copy of the impugned order Mr. Harilal G. Dalwani again approached the office of Mr. Mehta on 7 July 2015 th however the same was found to be non-operational. It is only on 10 th August, 2015 through the help of another local counsel Mr. Pranav Trivedi that a search at the office of Mr. Mehta could be made. It is only after a thorough search that the entire record of the case was found and handed over to Mr. Harilal G. Dalwani. Thereafter, the case file was delivered to the present advocates for the petitioner, Bhachawat and Associates through Mr. Pranav Trivedi Advocate on 20 August, 2015".

As mentioned in the application, draft of the revision petition was duly prepared by earlier advocate Mr. Shantanu J. Mehta on 7.9.2013 which was received by petitioner, but Mr. Shantanu J. Mehta expired on 20.9.2013 and petitioner was not aware about this fact. On 15.10.2013, Mr. Harilal G. Dalwani one of the proprietor of petitioner called in the office of Mr. Mehta and concerned clerk apprised that revision petition has been filed and did not intimate about death of Mr. Mehta. In August, 2014, Harilal G. Dalwani visited office of Advocate Mr. Mehta and came to know about his death, but other persons in the office were not aware about status of the case and only after May 2015 when office of Mr. Mehta stopped taking calls, petitioner met with present advocate, enquired about the case and came to know that revision petition has not been filed. Thus, it becomes clear that from October, 2013 to August, 2014, no efforts were made by the petitioner to file revision petition. Again from August, 2014 to May, 2015, petitioner did not enquire about status of revision petition and no explanation has been given by petitioner for not enquiring about status of revision petition for such a long time. As per application, in the month of May, 2015, petitioner came to know that revision petition has not been filed and ever after that day more than 4 months have been taken in filing revision petition without any reasonable explanation. When on 10 August, 2015 entire record of the case was found in office of th advocate Mr. Mehta and was handed over to Harilal G. Dalwani, one of the proprietor of the firm, revision petition which had already been prepared in September, 2013 could have been filed immediately and no reason has been assigned for not filing earlier drafted and signed revision petition immediately.

As there is delay of about 700 days in filing revision petition, this delay cannot be condoned in the light of the following judgment passed by the Hon''ble Apex Court.

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."

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."

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 reported in (2010) 5 SCC 459 as 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."

Hon''ble Apex Court in (2012) 3 SCC 563 - Post Master General & Ors. Vs. Living Media India Ltd. and Anr . has not condoned delay in filing appeal even by Government department and further observed that condonation of delay is an exception and should not be used as an anticipated benefit for the Government departments.

Hon''ble Apex Court in 2012 (2) CPC 3 (SC) - Anshul Aggarwal Vs. New Okhla Industrial Development Authority observed 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".

Thus, it becomes clear that there is no reasonable explanation at all for condonation of inordinate delay of 722 days. In such circumstances, application for condonation of delay is dismissed. As application for condonation of delay stands dismissed, revision petition being barred by limitation is also liable to be dismissed.

Consequently, the revision petition filed by the petitioner is dismissed as barred by limitation at admission stage with no order as to costs.