JAGJIT SINGH LALI vs AVINASH GUPTA

THIS appeal is directed against order dated 30.5.2002 passed by the District Consumer Disputes Redressal Forum-II, U.T., Chandigarh (for short hereinafter referred to as the District Forum) in Complaint Case No. 403 of 1999 filed by the respondent Shri Avinash Gupta against Shri Lalli, proprietor, M/s. Dashmesh Dry Cleaner and Dyers, SCO No. 278, Sector 32-D, Chandigarh. The appeal was filed on 6.2.2003 and has been reported to be time barred by limitation as the limitation provided by Section 15 of the Consumer Protection Act, 1986 (for short hereinafter referred to as the C.P. Act) is 30 days from the date of the order which has been interpreted to be the date of communication of the order to the concerned party.

THE appellant has in the application seeking condonation of delay alleged that he came to know about the impugned order of 30.5.2002 from one of his friend who had a chance to read the news-item regarding the decision of the complaint case published in some newspaper. It was also contended that the cutting of the newspaper was shown by the friend of the applicant in the month of September, 2002 and thereafter, the appellant contacted his Counsel and requested him to apply for the certified copy of the order which had not been received by him till then. THE Counsel for the appellant moved an application for supply of certified copy of the order dated 30.5.2002 along with affidavit of the appellant and certified copy was delivered to the Counsel for the applicant on 14.11.2002 after paying several visits to the office. THEreafter, inadvertently, the Clerk of the applicant''s Counsel namely, Shri Rajinder Kumar placed the copy of the said order in some other brief which could not be traced despite best efforts. It was alleged that while locating another file in the bunch of decided cases, the said Clerk found the certified copy of order on 28.1.2003 and as such the present application was moved for condonation of delay along with the main appeal. It has been alleged that there was no wilful or intentional act of delay on the part of the appellant but the same has been caused to be reasons mentioned above. THE affidavit of the Clerk of the Counsel for the applicant was annexed with the application. Shri Rajinder Kumar, Clerk in the Office of Mr. Rajan Malhotra, Advocate, in his affidavit deposed one para only which is as under : "That the certified copy of the order given to me on 14.11.2002 was inadvertently kept by me in the cases of decided files and despite best efforts the same could not be located. However, the same was found available on 28.1.2003 while locating another file in the bunch of decided cases."

This affidavit was sworn on 6.2.2003 and content of the sole para of the affidavit was verified to be true and correct to the knowledge of the deponent. Excepting this affidavit of Shri Rajinder Kumar, Clerk of the Counsel, no other affidavit was filed by the appellant in support of the application seeking condonation of delay.

A perusal of reply filed by the respondent/complainant will go to show that the appellant had made false and misleading statement regarding the material particulars of the case. According to the averment made in the reply on merit, it was contended in para 2 that the copy of the impugned order dated 30.5.2002 passed by the District Forum was despatched to the appellant as well as respondent by Despatch No. 2277 dated 11.6.2002 to the respondent and vide Despatch No. 2778 of the same date to the appellant. It was alleged that the news-item was published in the newspaper on 24.6.2002. The appellant was very much aware about the facts of the case and the news-item published on 24.6.2002. The applicant, it is alleged, failed to mention as to on which date he came to know about the news-item and has further failed to mention as to on which date the certified copy was applied for. In nutshell, it has been alleged in the reply that the appellant had not been vigilant in pursuing the matter regarding the filing of the appeal. The respondent had filed execution application on 10.12.2002 and notice were issued in the execution application for 20.1.2003 on which date the appellant did not appear and the case was adjourned to 9.1.2003. The District Forum proceeded to pass an order for attachment of the property. The case was adjourned to 25.2.2003. In the meantime, the property was attached and on the same date i.e. 25.2.2003, the appellant put in appearance before the District Forum. The District Forum had issued bailable warrants of the appellant for 10.4.2003. It is further alleged that the story put forward by the appellant is concocted one and he cannot take advantage of his own wrong. There is wilful and intentional act of delay on the part of the appellant in filing the appeal. The appellant was very well aware of the fact of the case as the copy of the impugned order sent to him by the District Forum on 11.6.2002 mentioned above.

NONE appeared on behalf of the appellant before us today. Mr. Dinesh Kumar Badhwar, Advocate appeared on behalf of the respondent. We have heard him and perused the record of the case relating to the matter of condonation of delay in filing the appeal. A perusal of the impugned order which has been placed on record by the appellant would go to show that a note has been appended in the duplicate certified copy to the following effect : "This is a duplicate certified copy and its certified copy was already despatched vide D. No. 2277-78 Dt. 11.6.2002." In the normal course of events, the certified copy of the impugned order which reached the respondent/complainant would also have reached the appellant as well as it was sent at the address mentioned by the appellant in the record of the complaint case before the District Forum. However, the applicant alleged in the application which is unsupported by any affidavit of the appellant baring the affidvait of Shri Rajinder Kumar, Clerk of the Counsel regarding misplacement of the second certified copy of the impugned order, the knowledge regarding the impugned order has been traced to one of the friend who had a chance to read the news-item in this regard published in some newspaper. The applicant has neither disclosed the name of his friend nor the date when the said friend read the newspaper nor the date of newspaper and its name have been disclosed in the application. Mr. Dinesh Kumar Badhwar, Advocate for the O.P. has referred to the reply filed to the application seeking condonation of delay to allege that the news-item had been published on 24.6.2002 in newspaper "Chandigarh Newsline". The applicant, on the other hand, had mentioned the month of September, 2002 without giving the date when the alleged friend informed the appellant about reading the news-item from the newspaper. The date when the Counsel for the appellant was contacted and the date when the Counsel for the appellant moved an application before the District Forum for obtaining certified copy of the impugned order which has also not been disclosed in the application. As if this delay was not enough, further delay was attributed now to the office of the Counsel where the certified copy issued by the District Forum as a second certified copy was reportedly misplaced by the Clerk of the Counsel who chose to place the same in the bundle of decided cases and he also had a chance to locate the same on 28.1.2003 while searching the bunch of decided cases. It was thereafter that the appellant with utmost speed got the appeal drafted, filed and alleged that the delay was neither wilful nor intentional but due to the circumstances mentioned above.

TO say the least, the aforesaid averments regarding facts do not satisfy us that there was any bona fide act on the part of the appellant in delaying the filing of the appeal. As a matter of fact, the narration of the facts mentioned in the reply show that when property was attached in the execution case on 25.2.2003 that the appellant appeared there. Even the averments made above have not been verified to be true by filing an affidavit by the appellant and the appellant mainly relies on the averments made in the application only excepting the misplacement of the order in the office of the Counsel by Shri Rajinder Kumar, Clerk.

THE application seeking condonation of delay lacks merit and the appellant has failed to satisfy us that he was prevented by sufficient cause from filing the appeal within the prescribed period of limitation. Consequently, the application seeking condonation of delay is dismissed. THE appeal is resultantly dismissed as being barred by limitation. Copies of this order be sent to the parties free of charge. Appeal dismissed.