RAMINDER KAUR THROUGH HER SPECIAL ATTORNEY, JOGINDER PAL SINGH vs SANDEEP KHULLAR & ORS.

First Appeal no. 1164 of 2016 has been filed against the order dated 11.05.2016 of the Punjab State Consumer Disputes Redressal Commission (''the State Commission'') in Complaint Case no. 42 of 2008.

Briefly put facts relevant for the disposal of the present appeal are that the appellant/ complainant on 12.01.2004 entered into an agreement for construction of a residential house of 1000 square yards in Urban Estate of SAS Nagar, Mohali. The work was to be carried out on a turn-key basis and the project was to be completed within fifteen months. It was provided that in the event of default by the opposite party, the opposite party shall pay a compensation of Rs.15,000/- per day. Complainant paid a sum of Rs.1.15 crore. The complainant deputed M/s Verma and Associates to assess the quality of work done by the opposite party. It was alleged that the investigation revealed that the OP had over-charged a sum of Rs.6.45,962/- and there was a delay of 116 weeks in completion of the work. Further, there were many deficiencies and short comings in the work carried out. Hence, the appellant has filed a consumer complaint before the State Commission claiming compensation of Rs.69,24,929/- for the deficiency in service.

The opposite party denied the allegations in the complaint and stated that the complaint was not maintainable. He allege that the complainant had manipulated the drawings of the structure and plans by increasing and decreasing the construction site and he was compelled to stop the work for 33 months as the complainant could not make the payments in terms of the agreement. Further, complainant had supplied the marble after nine months in January 2005, which contributed to the delay in construction of the residential house. Water and Electricity bills were paid except for the period of 33 months. The opposite party deputed Architect Mr R D Sharma and approved Chartered Engineer to make an assessment of the work done.

The Punjab State Consumer Disputes Redressal Commission, Chandigarh vide its order dated 11.05.2016 while dismissing the complainant observed as under: "As a result of our above discussions, we find that amount of Rs.10,00,000/- is still due from complainant to OP which became the bone of contention of this case between the parties. The OPs are at liberty to recover it from complainant by filing recovery suit before competent forum and they can invoke the provision of Section 14 of Limitation Act, 1963 in that regard threat. The complainant could not establish her entitlement to various amounts, as pleaded in the complaint by means of independent and cogent evidence on the record. The complainant relied upon report of his expert Verma and Associates, but she has not tendered her affidavit nor affidavit of her above Valuer on the record to prove her claim. On the other hand, the OPs tendered in evidence affidavit of OP no. 1 Shri Sandeep Khullar, affidavit of Shri Des Raj Khullar OP no. 2 and affidavit of Shri R D Sharma on record to disprove the version of the complainant. Hence, the report of Valuer of complainant stands rebutted by the evidence of the OPs".

Hence, the present appeal.

The appeal has been filed with an application for condonation of delay. The application does not even mention the number of days of delay to be condoned. As per the report of the Registry, there is a delay of 79 days. We have heard the learned counsel for the appellant and also gone through the application for condonation of delay. The reasons given in the application for condonation of delay are as under: "The copy of the judgment and order dated 11.05.2016 was prepared by the Registry of the State Commission on 23.05.2016 send by post on 24.05.2016 and was received by the appellant/ complainant through her special power of attorney on 29.05.2016.

The appellant/ complainant is an NRI who lives in Europe. The present appeal is being filed through Special Power of Attorney Shri Joginder Pal Singh.

From the date of receipt of the copy, i.e., 29.05.2016, the appeal should have been filed in 30 days. However, there is a delay of ____ days in filing the present appeal. The delay has occurred on account of the fact that the special power of attorney who is taking care of the present case and is responsible for filing the appeal was unwell and remained bed ridden and was admitted in the hospital on account of PCT, i.e., 116 amino 7 acid prohormone expressed by neuroendocrine cells of the thyroid, pulmonary and pancreatic tissue and successively enzymatically cleaved into (immature) calcitonin, katacalacin, and an N Terminal reasons between 21.05.2016 to 11.06.2016. The power of attorney is also suffering from bacterial sepsis and septic shock.

The power of attorney also under gone a surgery for the above disease and is completely bed ridden. The doctor has advised complete bed rest till 15.09.2016 on which date his health will be reviewed and examined. A copy of the complete medical record pertaining to the special power of attorney of the appellant/ complainant is annexed.

The delay has occurred on account of ill health of the Special Power of Attorney Holder and the fact that the appellant/ complainant herself lives in Europe and the responsibility to look after the case was handed over to the Special Power of Attorney holder".

We have gone through the medical record. The Special Power of Attorney of the appellant who herself lives in Europe, is the father of the complainant and is 84 years old. As per discharge summary of Ivy Hospital he was hospitalised from 21.05.2016 to 11.06.2016. The other medical records attached to the application for condonation of delay are pathology/ lab reports. Counsel for the appellant admits that nowhere in the medical record was there any advice that the power of attorney should be on bed rest till September 2016.

The Appellant has failed to explain when she received the order of the State Commission on 29.05.2016 through her Special Power of Attorney why she failed to contact her counsel to take further action in the matter, particularly as her 84 year old father was ill and incapable of pursuing the case. It would appear from the application for condonation of delay that the appellant herself took no initiative in the matter. Learned counsel for the appellant could not explain why the appellant could not contact and instruct her counsel by any means of communication for such a long period. We are not convinced with the explanation and the reasons given for the delay of 79 days. This view is further supported by the following judgment: In Anshul Aggarwal v. New Okhla Industrial Development Authority , IV (2011) CPJ 63 (SC), it has been held 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".

In R.B. Ramlingam v. R.B. Bhavaneshwari , I (2009) CLT 188 (SC)= I (2009) SLT 701=2009 (2) Scale 108, it has been observed that "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".

In Ram Lal and Others v. Rewa Coalfields Ltd ., AIR 1962 Supreme Court 361, it has been observed that "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 Section 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 bonafides may fall for consideration; but the scope of the inquiry 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 Sow Kamalabai, W/o Narasaiyya Shrimal and Narsaiyya, S/o Sayanna Shrimal Vs. Ganpat Vithalroa Gavare , 2007 (1) Mh. LJ 807, it was held that "the expression ''sufficient cause'' cannot be erased from Section 5 of the Limitation Act by adopting excessive liberal approach which would defeat the very purpose of Section 5 of Limitation Act. There must be some cause which can be termed as a sufficient one for the purpose of delay condonation. I do not find any such ''sufficient cause'' stated in the application and no such interference in the impugned order is called for".

In Balwant Singh Vs. Jagdish Singh & Ors ., ( Civil Appeal no. 1166 of 2006 ), decided by the Apex Court on 08.07.2010 it was held:

"The party should show that besides acting bonafide, it had taken all possible steps within its power and control and had approached the Court without any unnecessary delay. The test is whether or not a cause is sufficient to see whether it could have been avoided by the party by the exercise of due care and attention. [Advanced Law Lexicon, P. Ramanatha Aiyar, 3rd Edition, 2005]".

Accordingly, we find that there is no ''sufficient cause'' to condone the delay of 79 days in filing the present appeal. The application for condonation of delay is without any merit as well as having no legal basis and is not maintainable. Consequently, the present appeal being barred by limitation is dismissed with no order as to cost.