MODERN AUTOMOBILES LIMITED vs MADHU GUPTA

FACTS which were admitted by the parties at the time of hearing of this application need to be briefly noted. In this behalf we may also observe that at the time of hearing, we had summoned the record of the District Forum below relating to delivery of copy to the applicant. Necessity was felt keeping in view the averments made in the application for condonation of delay. District Forum below in Complaint No. 343/1999 on 16.8.2004 passed the following order while disposing of the complaint. "....................Thus, we are of the view that taking taking into account the entirety of the facts and circumstances of the case, the complainant is entitled to 2/3rd of the amount which she had to spend on the purchase of the new tyres as it is the admitted case of the complainant that the tyres originally fitted in the vehicle did cover a distance of 5,000 kms. Thus, we are of the view that the ends of justice would be met in case the complainant is held, entitled to a sum of Rs. 4,000 along with interest at the rate of 12% per annum with effect from the date of filing of the complaint, i.e. 26.5.1999, till actual payment is made. The cost of litigation is quantified at Rs.1,000. Be it stated here that the decision of this case shall have no effect on the claim if any preferred by the OP No. 1 to the OP No. 2 in respect of the defective tyres. This order be complied by the OP No. 1 within a period of forty-five days from the date of receipt of copy of this order."

FROM the certified copy of the impugned order filed with the appeal, it is evident that copy was applied for on 8.7.2005 and it was made available on the same date to the appellant on payment of Rs. 17 as fee. From the date of decision, appeal is time barred, therefore, M. A. No. 368/2005 was filed for condoning the delay in filing of same.

Learned Counsel for the appellant further submitted that the applicant as well as proforma respondent i.e. M/s. Maruti Udyog Limited whose authorized dealer was the applicant at the relevant point of time, both were represented by same Counsel. As per rules, a copy free of cost was made available to the learned Counsel. This was sent by him to the proforma respondent against whom no order was passed by the District Forum below.

ANOTHER material fact that needs to be noted, is that respondent No.l filed an application for execution of the order dated 16.8.2004 passed by the District Forum below. Admittedly in this execution, notice was served upon the applicant on 13.5.2005. It appeared on 6.6.2005 in this Execution Petition No. 5/2005. On 6.6.2005, following order was passed: "For making payment, be listed on 1.7.2005" The case was adjourned to 1.7.2005 when the following order was passed: "Payment not made today. For making payment to come up on 17.8.2005. Last opportunity granted".

When this execution came up for consideration on 17.8.2005, since the execution had been stayed by this Commission, therefore, proceedings remained at that stage only.

NOW the primary question involved in this case is as to whether the appellant is able to make out sufficient cause for condoning the delay or not. Before coming to the facts of this case, we may point out that ordinarily Court would not insist upon explaining each day''s delay and its approach does not have to be pedantic. Reason being that a litigant does not stand to gain anything by filing a time barred lis rather he runs the risk of getting his case thrown out being time barred. Besides this, Courts are respected for doing justice between the parties and not throwing out cases simply on a technical plea. Last but not the least, when grant of substantial justice is pitted against a technical plea of limitation, as in the present case, latter would give way to the former and above all, Courts are respected for doing substantial justice between the parties. By applying these tests laid down by the Hon''ble Supreme Court in the case of Collector, Land Acquisition, Anantnag and Another v. Mst. Katiji and Others, AIR 1987 SC 1353, and subsequent decisions of the Supreme Court till date insisting upon the Courts for liberally construing Section 5 of the Limitation Act, for the reasons to be recorded hereinafter, we are satisfied that no cause, muchless sufficient cause is made out by the applicant for condonation of delay in the present case. It is not understood as to why copy was sent to a party against whom there was no direction given by the Forum below instead of its being sent to the applicant who was directly affected by the said order. An attempt was made by the learned Counsel for the applicant by arguing that it is the duty of the Forum below to have supplied the copy to each of the parties. If this is the stand of the applicant, then it was also the duty of the learned Counsel and/or his client to have insisted upon to have supplied the second copy when one was received by the learned Counsel and had been sent to proforma respondent.

ADMITTEDLY, notice in Execution No. 5/2005 was issued by the District Forum to the applicant that was received by it on 13.5.2005. Atleast on this date, some steps ought to have been taken by the applicant to ascertain as to what is the matter in which execution has been taken out against it. Thereafter on 6.6.2005 order was passed by the District Forum which was repeated on 1.7.2005. Certified copy of the orders dated 6.6.2005,1.7.2005 and 17.8.2005 passed by the District Forum in Execution No. 5/2005 has been filed by respondent No. 1 along with her reply to this M.A. In these circumstances, we are further satisfied that the applicant was grossly negligent in prosecuting this matter after decision by the District Forum below. We are also alive to the situation that Fora under the Consumer Protection Act, 1986, are meant to do complete and substantial justice between the parties. However, it has to be administered even handedly to both the parties. Even for condonation of delay, while pleading sufficient cause as a ground, sufficient, adequate and enough facts have to be pleaded so as to show that a bare perusal of such facts spells out a cause which is sufficient for condoning the delay. In this behalf when a reference is made to the application filed by the applicant, it makes an interesting reading. For ready reference, contents of M.A. No. 368/2005 are extracted hereinbelow and after having gone through it, we find that no cause/sufficient cause is made out for condonation of delay: "1. That the Original Complaint No. 343/99 between the parties to the present application, was decided by the learned District Consumer Disputes Redressal Forum, Shimla on 16 8.2004. 2. That, according to the law, a copy of the order has to be communicated by the Consumer Forum to the each of the opposite parties. However, the copy of the order was not delivered or sent to the appellant. Insofar as the proforma respondent is concerned, although it had received a copy but it was not interested in filing the appeal since no order had been passed against it by the Forum below. 3. That, recently, the appellant applicant had received a notice of execution in the matter and then the appellant applicant made queries from the Counsel and learnt that the case has been decided on 16.8.2004, however, as already stated the appellant applicant had not received any copy of the order/judgment as was mandatorily required as per law. 4. That thereafter, the appellant-applicant had contacted its local Counsel and after searching the records and requested that a copy of the judgment/final order be despatched to it But no copy was traceable in the record of the Counsel. However, photostat copy was traced out the original of which had been sent to Maruti Udyog Ltd. in October, 2004. 5. That the aforesaid photostat copy was received by the appellant applicant on 27 June, 2005. The appellant studied the photostat copy of the order and then discussed the matter with the local Counsel Mr. Rajesh Kashyap on the phone on 28.6.2005. Thereafter the applicant took a decision to file the accompanying appeal. 6. That, the appellant got a demand draft No. 587049/05 for the decretal amount made in the sum of Rs. 7,080 on 30.6.2005 on the Oriental Bank of Commerce, Shimla. 7. That, the applicant checked its record but no certified copy of order dated 16.8.2004 was received by the applicant till then. As a matter of fact, no certified copy of the order/final order was despatched by the Forum below to the appellant and has not been received by it till date. Thereafter this fact was conveyed to the Counsel of the applicant and who then appllied for the certified copy of the said order on 7.7.2005. Therefore, there is no delay in filing the appeal. However, to avoid any technical objection, the present application is being drafted if it is assumed that there has been a delay in filing of the appeal. It is, therefore, respectfully prayed that this application may be allowed and the delay, if any, of filing of the appeal may kindly be condoned in the interest of justice as the matter deserves to be decided on merits. These orders may kindly be passed in the interest of law and justice."

FACTS such as when the applicant received notice of execution, whether any inquiry was made from its Counsel about day to day progress in the complaint as well as in the execution have been delightfully kept vague by the applicant. Faced with the above situation, learned Counsel for the appellant submitted that the cause of justice will be defeated if delay is not condoned and main matter not taken up for consideration. We are not impressed by this submission in the peculiar facts of this case, therefore, delay in filing the appeal on the facts of this case cannot be condoned.

No other point was urged. In view of the aforesaid facts, M.A. No.368/2005 being devoid of any merit, is hereby rejected with costs quantified at Rs. 2,500 with the delay being not condoned, Appeal No. 175/2005 being time barred is ordered to be consigned to the records and it also stands finally disposed of. M.A. No. 368/2005 dismissed. Appeal No. 175/2005 disposed of.