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Judgment
PETITIONER has filed this petition challenging order dated 11.10.2011, passed by State Consumer Disputes Redressal Commission, Maharashtra ( for short as '' State Commission'')
RESPONDENT/complainant filed a complaint under Section 12 of the Consumer Protection Act, 1986 (for short as '' Act'') against petitioners (O.Ps.) before District Forum, claiming return of extra amount of Rs. 3,37,500/-, charged from him by respondents for the payment seat for the course of BDS in petitioners'' college. Petitioners appeared before the District Forum and raised certain preliminary objections, which were rejected by the District Forum, vide its order dated 8.12.1999.
Aggrieved by the order, petitioners filed an appeal before the State Commission, which was dismissed.
THEREAFTER, District Forum, gave four chances and hundred days to the petitioners to file their written statement or objections but they did not file the same. Accordingly, District Forum passed an order on 22.1.2010 to proceed with the complaint without the written statement. After hearing the complainant, it allowed the complaint and passed the following orders on 20.3.2010; " 1) Opposite parties 1 to 3 should jointly and separately give to the Complainant Rs., 3,37,500/- along with 6 % interest from date 16.1.1998 and Rs. 5,000/- as expenses for this case. 2) Opposite parties 1 to 3 should jointly and separately obey these orders with no mistake and latest by date 15/5/2010. After then, they should present the '' Compliance Report'' about obeying these orders before the court until date 30/5/2010 with no mistake. 3) Otherwise, opposite parties 1 to 3 should take notice that they will be liable to punishable actions under Section 27 of Consumer Protection Act 1986 ".
Petitioners filed an appeal before the State Commission. Along with it, an application seeking condonation of delay was also filed.
STATE Commission, vide impugned order, dismissed the application for condonation of delay. Consequently, the appeal was also rejected. This is how much the matter has reached before this Commission. It is contended by learned counsel for the petitioners that petitioners never received the copy of order dated 20.3.2010, passed by the District Forum and they became aware of the same only when notice of execution application was received from the District Forum. Petitioners have also placed on record the reasons that led to filing of the appeal on 13.1.2011, due to health reasons of the petitioners. State Commission erroneously rejected the application for condonation of delay and dismissed the appeal without any consideration of the case of the petitioners on merits. It is also contended that respondent has no case on merits, thus, impugned order is liable to be set aside.
REGARDING application seeking condonation of delay, State Commission in its impugned order observed; " According to Mr. Lahoti, learned counsel for the applicant, the delay of 62 days was in preferring appeal , whereas learned counsel for the Non applicant, there is delay of more than 6 months. It is submitted by counsel for the applicant that though as per the record of the District Consumer Forum, the copy of the order was sent to the appellant by post, it was not received and, therefore, on 6.10.2010 the appellant applied for copy of the order and received it on 13.10.2010, and, thereafter, filed the appeal on 14.1.2011, whereas according to the learned counsel for the non-applicant, copy of the order was sent to the applicant on 10.5.2010 and it was sent on the address given by the appellant and as such, it must have been received by the applicant, but he falsely suppressed this fact and applied for the copy on 6.10.2010. Thus, according to the learned counsel for the non applicant, there was delay of more than 6 months in preferring appeal and such inordinate delay, in the absence of any just and reasonable ground can not be condoned. On all these grounds, it is submitted to dismiss the application. On perusal of office endorsement on the certified coy of the impugned order, it reflects that the copy of the order was sent to the applicant by post Under Certificate of Posting on the correct address of the applicant given in the complaint. Therefore, it will have to be presumed that it must have been received by the appellant. Hence we find much force in the submission made by learned counsel for the non applicant. It is submitted by the learned counsel for the applicant that there was delay in filing appeal as dean of the applicant dental college as well as its President were ailing. In support of this contention, the applicant has produced medical certificate dated 12.11.2010 issued by Dr. Agashe which reflects that Shri Ashutosh Goenka who is the Dean of the said college, is suffering from Diabetics, BP etc. but it does not reflect that he was bedridden. Therefore, the same can not be considered for condonation of such delay. Moreover this certificate reflects that the dates have been changed by overwriting which also creates suspicion about its genuineness. Not only this, but it also reflects that initially, the President was directed for rest for 3 months and, by over writing, it is changed for 2 months. Therefore, this certificate is being suspicious, cannot be considered. Apart from the above facts, even if the Dean of the college was ailing, the Secretary or President who were party to the proceeding could have filed appeal within time after receipt of copy of the judgment and order but no explanation is given as to why they did not took steps to file appeal in time. However, learned counsel for the applicant made feeble attempt to explain that President of the said College was also ailing, but no medical certificate to that effect is produced. Therefore, the same statement also cannot be considered. Even if the President was ailing, the Secretary could have filed the appeal, but no explanation is given as to why he did not file the appeal in time. Again learned counsel for the applicant made feeble attempt and tried to explain that the Secretary of the college being the Son of the Dean was attending his ailing father. But as there is no record to show that the President of the college was ailing, question of looking after him by his son i.e. the Secretary, does not survive. There being no satisfactory and reasonable ground to condone such inordinate delay, the same cannot be condoned. Hence we decline to condone the delay and pass the following order. 1. The application for condonation of delay stands dismissed. 2. Consequently, the Appeal is also rejected. 3. No order as to cost ".
WE have gone through the application for condonation of delay, filed before the State Commission along with copy of the medical certificate. Admittedly, there is over writing in the medical certificate. Thus, the authenticity of this medical certificate is doubtful and the same is of no help to the petitioners. Since, there are three petitioners in this case, there is no plausible explanation as to what prevented other two petitioners from filing the appeal, within the period of limitation.
It is well settled that ''sufficient cause'' 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 ."
In ''R.B. Ramlingam Vs. R.B. Bhavaneshwari, 2009 (2) Scale 108'', Supreme Court 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."
RECENTLY, Supreme Court in ''Anshul Aggarwal vs. New Okhla Industrial Development Authority, IV (2011) CPJ 63 (SC)'' has laid down that; " 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, in the present case, no sufficient cause has been shown for not filing the appeal before the State Commission within the period of limitation. As far as merits of this case are concerned, it is apparent from the record that initially petitioners appeared before the District Forum and raised preliminary objections, which were dismissed. Thereafter, petitioners did not appear before the District Forum, though it granted petitioners four opportunities and hundred days to file their written statement. However, for the reasons best known to the petitioners they had chosen not to appear before the District Forum nor did they file their written statement. Under those circumstances, District Forum rightly proceeded exparte against the petitioners. Thus, averments made in the complaint remains un-rebutted, since petitioner had no defence.
IN Ravinder Kaur Vs. Ashok Kumar, AIR 2004 SC 904, Apex Court observed ; " Courts of law should be careful enough to see through such diabolical plans of the judgment debtor to deny the decree holders the fruits of the decree obtained by them. These type of errors on the part of the judicial forum only encourage frivolous and cantankerous litigations causing law''s delay and bringing bad name to the judicial system."
LOOKING from any angle, we do not find any infirmity or illegality in the impugned order. Present revision petition has been filed just to delay the matter and to deprive the respondent fruits of the award passed by the District Forum. It is well settled that no leniency should be shown to such type of litigants who in order to cover up their own fault and negligence, goes on filing meritless petitions in different foras. Time and again Courts have held that if any litigant approaches the Court of equity with unclean hands, suppress the material facts, make false averments in the petition and tries to mislead and hoodwink the judicial Forums, then his petition should be thrown away at the threshold. Equity demands that such unscrupulous litigants whose only aim and object is to deprive the opposite party of the fruits of the decree must be dealt with heavy hands.
In our opinion, present petition is nothing but a gross abuse of process of law. The same is meritless and having no legal force, is required to be dismissed with punitive costs. Accordingly, we dismiss the present petition with costs of Rs.50,000/- (Rupees Fifty thousand only).
COSTS of Rs.50,000/- (Rupees fifty thousand only) be deposited by the petitioners by way of demand draft in the name of ''Consumer Legal Aid Account'' of this Commission, within one month from today. In case, petitioners fail to deposit the aforesaid costs within the prescribed period, then they shall also be liable to pay interest @ 9% p.a., till realization.
PENDING applications also stand disposed of. List for compliance on 25.5.2012.