P. Sivasankaran vs Sathish Waman Patkar

PRESENT revision petition has been filed by the petitioner challenging order dated 2.4.2009, passed by Maharashtra State Consumer Disputes Redressal Commission, Mumbai (for short, ''State Commission '') in Appeal No.480 of 2008, against order of District Consumer Disputes Redressal Forum, Mumbai Suburban (for short, ''District Forum '') in consumer complaint no.413 of 2004. Along with present petition, petitioner has also filed an application for condonation of delay.

CASE of petitioner/complainant is that he has paid a sum of Rs.4,65,000/- to the respondent/opposite party for purchase of a flat admeasuring 650 sq.ft. Respondent agreed to hand over possession of the said flat to the petitioner on 4.1.2003. Since, respondent failed to hand over the possession of the flat and even failed to refund the amount together with interest @ 9% p.a. as per Maharashtra Ownership Flats Act, petitioner filed a complaint before the District Forum. District Forum, after scrutiny of the evidence, found no substance in the complaint observing that copy of the agreement as well as receipt of the payment have not been produced by the complainant.

Aggrieved by the order of District Forum, petitioner filed appeal. State Commission, vide impugned order, partly allowed the compliant and directed the respondent to refund a sum of Rs.1,80,000/- together with interest @ 9% p.a. from 15.11.2002 till realization to the petitioner.

Not satisfied with the order of the State Commission, petitioner has filed present revision petition along with application for condonation of delay. Taking up first the application for condonation of delay, in the entire application no period of delay has been mentioned nor it has been stated as to for which period the delay should be condoned.

IT is contended by learned counsel that grounds for condonation of delay have been mentioned in para 5 of the application. Relevant averments with regard to condonation of delay are reproduced as under ; "5. The petitioner was residing at Mumbai at the time of filing the First appeal before the Hon ''ble State Consumer Disputes Redressal Commission, Maharashtra State, however in the due course he had to shift his place of residence to his native place of Kerala, on account of his ill health and age related ailments and he was undergoing Ayurvedic treatment for a long time. Moreover, the petitioner had no place to live in Mumbai after his retirement. Therefore, all the communications addressed to the petitioner were being sent to his old address and the petitioner was unable to receive them. Thereafter, the petitioner traced the address of his counsel in Mumbai and obtained the details regarding disposal of appeal in the year 2009. Thereafter, at his request, the counsel at Mumbai arranged the present counsel at Delhi to file the present case. 3. It is respectfully submitted that there was no willful lathes or negligence on part of the petitioner even though he had been showing all due diligence in conducting the case. However, owing to his ill health he was unable to obtain the details of the case or to instruct his counsel regarding the further course of action. 4. It is submitted that the delay of ... ..... days is not intentional and the same was occurred due to the above-mentioned circumstances, beyond the control of the petitioner. It is respectfully submitted that if the delay is not condoned, the petitioner may suffer irreparable injury, and hence this Hon ''ble Court may have the indulgence to condone the delay in the interest of justice. "

Impugned order was passed on 2.4.2009 and copy of order was received by the petitioner on 3.8.2009. Revision petition has been filed only on 1.2.2012. Thus, as per office report, there is delay of 822 days.

AS per petitioner ''s own case, he has obtained the details regarding disposal of the appeal in the year 2009. However, there is no whisper in the entire application as to when the present counsel in Delhi was arranged and when was he asked to file the present case. Moreover, in the entire application, petitioner has nowhere mentioned about the nature of ailment and what treatment he has undergone ; as to whether he was confined to bed or not. No medical evidence with regard to the ailment or treatment has been placed on record by the petitioner. Application for condonation of delay is absolutely vague and without any legal basis. It is well settled that "sufficient cause " for condoning the delay in each case is a question of fact. 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. "

Similarly, in Oriental Insurance Co. Ltd. vs. Kailash Devi and Ors. AIR 1994 Punjab and Haryana 45, it has been laid down that; "There is no denying the fact that the expression sufficient cause should normally be construed liberally so as to advance substantial justice but that would be in a case where no negligence or inaction or want of bona fide is imputable to the applicant. The discretion to condone the delay is to be exercised judicially i.e. one of is not to be swayed by sympathy or benevolence. "

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. "

Further, 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. The expression "sufficient cause" employed in Section 5 of the Indian Limitation Act, 1963 and similar other statutes is elastic enough to enable the courts to apply the law in a meaningful manner which sub serves the ends of justice. Although, no hard and fast rule can be laid down in dealing with the applications for condonation of delay, this Court has justifiably advocated adoption of a liberal approach in condoning the delay of short duration and a stricter approach where the delay is inordinate - Collector, Land Acquisition, Anantnag v. Mst. Katiji (1987)2 SCC 107, N. Balakrishnan v. M. Krishnamurthy (1998) 7 SCC 123 and 10 Vedabai v. Shantaram Baburao Patil (2001) 9 SCC 106 ".

RECENTLY, Apex Court in Anshul Aggarwal Vs. New Okhla Industrial Development Authority, IV (2011) CPJ 63 (SC) has observed ; "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 ".

The observations made by the Apex Court in the authoritative pronouncements discussed above, are fully attracted to the facts and circumstances of the present case. It also transpires from the record that there was delay of one year and one month in filing of the appeal before the State Commission, though it was condoned. However, it only goes on to show that the petitioner has been pursuing the present litigation in a very careless and casual manner. When there is delay of 822 days, a valuable right has accrued to the opposite party, that is, the respondent who cannot be deprived of that legal advantage. After going through the entire application, I am satisfied that no reasonable explanation whatsoever has been given for seeking condonation of delay nor any sufficient cause or cogent reason has been given which entitles the petitioner to have the delay condoned.

Accordingly, application for condonation of delay being without any legal basis is not maintainable and has been filed just to waste the time of this Commission. Consequently, application for condonation of delay is hereby dismissed with cost of Rs.20,000/- (Rupees Twenty Thousand only). Hence, present revision petition also stand dismissed being barred by limitation.

PETITIONER is directed to deposit the cost by way of demand draft in the name of "Consumer Legal Aid Account " of this Commission, within four weeks from today. In case, petitioner fails to deposit the aforesaid cost within the prescribed period, then he shall also be liable to pay interest @ 9% p.a., till realization.

List on 30.10.2012 for compliance.