Religare Securities Ltd vs Anant Prakash Sinha

REVISION Petition No. 1878 of 2013 has been filed against section 21 (b) of the Consumer Protection Act, 1986 for setting aside the order dated 26.9.2011, passed in Complaint Case No.333 of 2010 by State Consumer Disputes Redressal Commission, New Delhi (short, "State Commission ").

AS per facts of the complaint filed by respondent/complainant are that the respondent is customer of the petitioners/opposite parties who opened a Trading Account No.EP90 with the petitioner/opposite party no.1 i.e. M/s Religare Securities Ltd. He had been assured by the petitioner that any transaction in his account will be done only after approval of the respondent. The respondent had not executed any authorization or power of attorney in favour of the petitioner or its employees to do any act or deed on his behalf without knowledge to the respondent.

WHILE perusing the statement of January, 2010, the respondent found that in the said month Mr.Maniram Mahto, who is one of the employees of the petitioner had processed an unauthorized and unapproved options trading in his account EP90 which resulted in a loss of Rs.21 lakhs approximately. The respondent immediately informed this fact to the petitioner and the respondent also sent an e -mail on 8.2.2010 to Mr.Amit Dewan and lodged his protest/complaint. On the same day, there was a meeting held in the office chamber of the respondent at Gurgaon. In response of the above said complaint, which was attended by Mr.Jyoti Kandhari, Mr.Ranjan Kumar and Mr. Ranjeet Yadav as the representative of petitioner. The representatives accepted that the option trading done by Mr.Maniram Mahto in EP90 were blatantly wrong and should not have been done without knowledge and prior approval of the respondent. Mr.Jag Jyoti Khandhari assured that the loss to the extent of Rs.21 lakhs shall be made good within the month of February. The provisions made by them were confirmed by the respondent by his e -mail sent on 16.2.2010 to Mr.Amit Dewan and Mr.Ranjeet Yadav. Unfortunately, the promises made by Mr.Amit Dewan and Ors. in the meeting held on 8.2.2010 did not yield any result and the respondent was kept in a totally dark and confused state of mind causing a lot of mental agony and monetary loss to him.

THE respondent once again wrote an e -mail on 18.2.2010 to the Customer Care Religare with copy to Mr.Amir Dewan and Mr.Ranjeet Yadav. The respondent ''s email dated 18.2.2010 was responded by the Customer Care on same day but in a very carefully but ornamentally worded language. In spite of the fact that all details were there in the office of the petitioner, the respondent was asked to give settlement number/script names/date of trade etc. This shows that the customer care was also not sincerely interest in taking up the complaint of the respondent in an effect manner. In the aforementioned circumstance, after waiting for four months from the date of first complaint lodged with Mr.Amit Dewan, the respondent issued a legal notice dated 16.6.2010 duly served upon the petitioner for recovery of the loss and damages caused to the respondent. By the said legal notice, the petitioner was called upon to make good the loss of Rs.21 lakhs and interest thereon @ 18% p.a. since the loss was caused till the date of payment. Cost of the legal notice, it consultancy fee of the legal notice and consultancy fee of lawyer amounting to Rs.10,000/ - were also asked to be paid to the respondent within a period of seven days from the date of receipt of the said legal notice. The petitioner neither replied the above said legal notice nor took any step to correct their mistake till date. Vide order dated 26.9.2011, the State Commission passed the following order ; (i) Respondent no.1 is absent despite service hence, proceeded ex -parte. (ii) Notice issued to respondents 2 to 6 has not received back served or unserved. Issue again vide registered cover AD card for filing reply for 20.1.2012. (iii) One set of notice be given Dasti to the counsel for complainant as prayed. " Hence, the revision petition. Along with present revision petition, an application for condonation of delay of 498 days has also been filed. The reasons given for the delay are as follows ; "4. Vide the impugned order, the State Forum had proceeded ex -parte against the appellant as none appeared on behalf of the appellant on 26.9.2011. 5. That notice in the complaint was issued to the opposite parties on 31.1.2011 for 26.5.2011. On 26.5.2011, fresh notice was issued for 26.9.2011 since respondent nos.2 to 6 could not be served. 6. That on 26.9.2011, while the counsel was on his way to attend the matter, unfortunately, he met with an accident and therefore, could not appear before the State Commission. The next day counsel went and enquired about the matter. Upon verifying from the Registry, the counsel was informed that on 26.9.2011 fresh notice was again issued for 20.1.2012 as nos.2 to 6 could not be served.

ON 20.1.2012, the counsel for the appellant appeared before the Ld.State Forum and sought time to file reply to the complaint. The ld.State Forum again issued fresh notice for 28.5.2012 as respondent nos.2 to 6 could not be served.

ON 28.5.2012, counsel for the appellant had filed an application under section 26 of the Consumer Protection Act, 1986 praying that the said application should be decided before calling upon the respondents to file its reply as the complainant is not a consumer within the meaning ascribed to it under section 2 (1) (d) of the Act. However, the said application could not be taken up for hearing as it was not on record. The Hon ''ble Court issued fresh notice again for 17.9.2012 as nos.2 to 6 was not served. Dasti notices were also issued in addition. On 17.9.2012, proxy counsel for the appellant sought to argue the aforesaid application but the Hon ''ble Court directed the counsel to file his Vakalatnama on the next date of hearing and also issued notice to respondent nos.2 to 6 for 28.1.2013.

ON 28.1.2013, when the counsel sought to argue the application, the ld. State Forum apprised the counsel for the appellant that the appellant had already been proceeded ex -parte on 26.9.2011 as none appeared on its behalf. The counsel promptly made an oral request to recall the impugned order and hear the application filed under section 26 of the Act. Although, Ld. State Forum recorded the appearance of the counsel for the appellant but declined to recall the impugned order as it was of the view that it cannot recall its own order and the same can be done only by the Hon ''ble National Commission.

THEREAFTER , in February, counsel for the appellant applied for copy of the impugned order dated 26.9.2012 and the same was given to the appellant on 3.4.2013. Thereafter, counsel for appellant prepared the appeal and sent it for signatures to the appellant. The appeal was signed by the appellant and was sent back to the counsel for filing the same on 29.4.2013. " We have heard learned counsel for the petitioner and gone through the record.

THE ex -parte order was passed on 26.9.2011. It is stated that the very next day counsel went and enquired about the matter. Upon verifying from the Registry, he was only informed that on 26.9.2011, fresh notice was again issued for 20.1.2012 as nos.2 to 6 could not be served. He stated that the counsel (name not mentioned) was not informed of the ex -parte order. That, he came to know of the order only on 28.1.2013 and thereafter, in February, counsel applied for copy of the impugned order and the same was given on 3.4.2013. Thereafter, the revision petition was filed on 6.5.2013.

COUNSEL for petitioner could not explain that if as per his version, the counsel for the petitioner has been attending the Court regularly since 20.1.2012, how he remained unaware of the ex -parte order passed on 26.09.2011 till 28.1.2013. Respondents no.2 to 6 are officials of the petitioner. It is also seen from the order dated 20.1.2012 while marking the presence of the counsel that Mr. Amardeep, proxy counsel for Mr.Rohit Puri, for opposite party no.1 clearly recorded "though proceeded ex -parte vide order dated 26.9.2011 ". Hence, the plea of the petitioner that he was unaware of the ex -parte order prior to 28.1.2013 does not stand. Hence, the application for condonation of delay of 489 days is hopelessly barred by limitation.

IN view of the above facts, we are of the view that the petitioner has failed to give any proper justification for the long delay of 498 days. The petitioner has failed to give day to day justification with dates as also "Sufficient Cause " for condoning the delay of 498 days. It is well settled that "Sufficient Cause " for condoning the delay in each case is a question of fact.

APEX Court in case 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 ". Hon ''ble Supreme Court in Post Master General and others vs. Living Media India Ltd. and another (2012) 3 Supreme Court Cases 563 has held; "24. After referring various earlier decisions, taking very lenient view in condoning the delay, particularly, on the part of the Government and Government Undertaking, this Court observed as under; "29. It needs no restatement at our hands that the object for fixing time -limit for litigation is based on public policy fixing a lifespan for legal remedy for the purpose of general welfare. They are meant to see that the parties do not resort to dilatory tactics but avail their legal remedies promptly. Salmond in his Jurisprudence states that the laws come to the assistance of the vigilant and not of the sleepy. 30. Public interest undoubtedly is a paramount consideration in exercising the courts'' discretion wherever conferred upon it by the relevant statutes. Pursuing stale claims and multiplicity of proceedings in no manner subserves public interest. Prompt and timely payment of compensation to the landlosers facilitating their rehabilitation /resettlement is equally an integral part of public policy. Public interest demands that the State or the beneficiary of acquisition, as the case may be, should not be allowed to indulge in any act to unsettle the settled legal rights accrued in law by resorting to avoidable litigation unless the claimants are guilty of deriving benefit to which they are otherwise not entitled, in any fraudulent manner. One should not forget the basic fact that what is acquired is not the land but the livelihood of the landlosers. These public interest parameters ought to be kept in mind by the courts while exercising the discretion dealing with the application filed under Section 5 of the Limitation Act. Dragging the landlosers to courts of law years after the termination of legal proceedings would not serve any public interest. Settled rights cannot be lightly interfered with by condoning inordinate delay without there being any proper explanation of such delay on the ground of involvement of public revenue. It serves no public interest. "

The Court further observed ; "27. It is not in dispute that the person(s) concerned were well aware or conversant with the issues involved including the prescribed period of limitation for taking up the matter by way of filing a special leave petition in this Court. They cannot claim that they have a separate period of limitation when the Department was possessed with competent persons familiar with court proceedings. In the absence of plausible and acceptable explanation, we are posing a question why the delay is to be condoned mechanically merely because the Government or a wing of the Government is a party before us. 28. Though we are conscious of the fact that in a matter of condonation of delay when there was no gross negligence or deliberate inaction or lack of bonafide, a liberal concession has to be adopted to advance substantial justice, we are of the view that in the facts and circumstances, the Department cannot take advantage of various earlier decisions. The claim on account of impersonal machinery and inherited bureaucratic methodology of making several notes cannot be accepted in view of the modern technologies being used and available. The law of limitation undoubtedly binds everybody including the Government. 29. In our view, it is the right time to inform all the government bodies, their agencies and instrumentalities that unless they have reasonable and acceptable explanation for the delay and there was bonafide effort, there is no need to accept the usual explanation that the file was kept pending for several months/years due to considerable degree of procedural red -tape in the process. The government departments are under a special obligation to ensure that they perform their duties with diligence and commitment. Condonation of delay is an exception and should not be used as an anticipated benefit for government departments. The law shelters everyone under the same light and should not be swirled for the benefit of a few. 30. Considering the fact that there was no proper explanation offered by the Department for the delay except mentioning of various dates, according to us, the Department has miserably failed to give any acceptable and cogent reasons sufficient to condone such a huge delay. 31. In view of our conclusion on Issue (a), there is no need to go into the merits of Issues (b) and (c). The question of law raised is left open to be decided in an appropriate case. 32. In the light of the above discussion, the appeals fail and are dismissed on the ground of delay. No order as to costs. "

UNDER these circumstances, no sufficient cause is made out for condoning the long delay of 498 days in filing the present petition. Accordingly, application for condonation of delay is not maintainable. Consequently, the present revision petition being hopelessly barred by limitation is hereby dismissed with cost of Rs.10,000/ - (Rupees Ten Thousand Only).

COST of Rs.5,000/ - to be paid to the respondent by way of demand draft in his name and remaining cost of Rs.5,000/ - to be deposited in the ''Consumer Legal Aid Account '' of this Commission, within four weeks from today. In case, petitioner fails to deposit the said cost within the prescribed period, then it shall also be liable to pay interest @ 9% p.a., till realization. List on 1.11.2013 for compliance.