M/S. SUKHDEV VENTURES THROUGH ITS PROPRIETOR, MR. DEVANAND SHETTY vs SHASHIKANT M. CHANDAN & ANR.

The appellant being aggrieved of the order of the State Commission dated 20.4.2015 in CC/13/249-250 allowing the consumer complaint filed by the respondents has preferred this appeal.

Operative portion of the order of the State Commission is reproduced as under: -

" 1) Complaint No.CC/13/249 is dismissed without costs.

2) Complaint No.CC/13/250 is allowed in part with following directions:

The complainants shall pay Rs.25,00,000/- (Rupees Twenty Five Lakhs only) to the opponent within four weeks form the date of order to the opponent. In case of refusal by opponent to accept the same, the complainants are at liberty to deposit the said amount in the State Commission within two weeks after such refusal by the opponent.

After complainants complying above condition the opponent shall handover the possession of Flat No.A-701 in the scheme within two months from thereafter to the complainants.

Opponent shall also pay an amount of Rs.50,000/- (Rupees Fifty Thousand only) for mental agony and costs of litigation quantified to Rs.25,000/- (Rupees Twenty Five Thousand only) to the complainants.

3) One set of compilation of each complaint be retained for our record and rest of the sets be returned to the complainants."

The appeal, however, has been filed with a delay of 443 days as computed by the Registry after the expiry of 30 days period of limitation as provided under the law. The appellant has therefore moved an application for condonation of delay being IA/13175/2016.

Learned counsel for the appellant has submitted that actually there is no delay in filing of the appeal. It is alleged that appellant was not served with the notice of the complaint and was proceeded ex-parte by the State Commission. It is submitted that the appellant was never served with the free copy of the impugned order and that the appellant came to know about the ex-parte order passed against him only when he received the notice of execution application. Immediately on receipt of notice of execution application the appellant applied for certified copy of the impugned order and preferred the appeal.

We do not find merit in the contention of learned counsel for the appellant. In para 2 of the application the appellant has alleged that no notice of the consumer complaint was received by the appellant rather the notice was received by one of the staff of the appellant who failed to bring to the knowledge of the appellant. From this allegation it can be safely concluded that notice of the complaint was served at the office of the complaint. In para 3 the appellant has alleged that the appellant "only recently come to know of the order dated 20.04.2015 by the Hon''ble State Commission." This plea is highly vague. We fail to appreciate as to why the appellant has not given the date on which date he came to know about the impugned order. In order to get out of this situation leaned counsel has submitted that the appellant came to know about the impugned order when he was served with the notice of the execution proceedings in November, 2015. This plea of the appellant is belied from the record. Appellant has placed on record photocopy of the certified copy of the impugned order. It bears two endorsements of the State Commission, first endorsement records that free copy of the order was issued on 27.5.2015; the second endorsement shows that paid second copy was issued on 14.9.2015. Thus it is clear that at best the appellant came to know about the impugned order from the certified copy on 14.9.2015. If we compute the period of limitation of 30 days even from the aforesaid date, the appeal should have been filed latest by 30 th October, 2015. However, the appeal has been filed on 30.12.2016 i.e. with a delay of 61 days. No explanation for aforesaid delay has been given.

Hon''ble Supreme Court in Ram Lal and Ors. Vs. Rewa Coalfields Ltd. AIR 1962 Supreme Court 361 , it has been observed as under: - "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".

In R.B. Ramlingam Vs. R.B. Bhavaneshwari, 2009 (2) Scale 108 Apex Court has observed as follows:

"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.

Hon''ble Supreme Court in Anshul Aggarwal vs. New Okhla Industrial Development Authority, IV (2011) CPJ 63 (SC) 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."

In view of the above discussion and the settled position in law, we do not find merit in the application for condonation of inordinate delay. Application is accordingly dismissed. As a consequence, revision petition is also dismissed as barred by limitation.