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2013 DIGILAW 447 (UTT)

MOHAN SINGH BISHT v. AMIT SAHNI

2013-07-07

B.C.Kandpal, C.C.Pant

body2013
ORDER (Per: Mr. C.C. Pant, Member): Sh. Mohan Singh Bisht, complainant before the District Forum, Nainital in consumer complaint No. 86 of 2008, has filed an appeal under Section 15 of the Consumer Protection Act, 1986 against the order dated 29.07.2011 passed by the District Forum in the aforesaid complaint. The appeal has been filed with a delay of 226 days and an application with a prayer to condone this delay has also been filed along with the appeal by the complainant (herein after referred to as “applicant”). 2. We have heard the learned counsel for the applicant, respondent No. 1and respondent No. 2 and perused the material placed on record. 3. The learned counsel for the applicant submitted that the counsel engaged by the applicant to contest the case before the District Forum did not inform the applicant in respect of the status of his case and always told the applicant that he was taking care of the case and the applicant would be informed before the final arguments. The learned counsel further submitted that the applicant met his counsel almost every month in the year 2011, but could not collect any information with regard to the status of his case. Ultimately, on the advice of applicant’s neighbour, he sought information from the District Forum in respect of his case vide application dated 02.03.2012 under the provisions of Right to Information Act, 2005. The District Forum, vide its letter dated 16.03.2012, informed the applicant that his case was dismissed by the Forum. The District Forum’s letter was received by the applicant on 19.03.2012. The applicant approached another advocate (the present counsel) and engaged him as his new counsel. After inspecting the District Forum’s file on 21.03.2012, the applicant was advised by the new counsel to challenge the order dated 29.07.2011 passed by the District Forum and, thus, the applicant could get a certified copy of the said order on 21.03.2012. The learned counsel submitted that the appeal was prepared by him and was filed before the Commission on 11.04.2012. In support of the case, the learned counsel pressed into service the following decisions of Hon’ble Supreme Court:- 1. State of U.P. vs. Om Prakash Sharma and others; Allahabad Rent Cases, 1999 (2) 346 2. N. Balakrishnan vs. M. Krishnamurthy; (1998) 7 Supreme Court Cases 123 4. In support of the case, the learned counsel pressed into service the following decisions of Hon’ble Supreme Court:- 1. State of U.P. vs. Om Prakash Sharma and others; Allahabad Rent Cases, 1999 (2) 346 2. N. Balakrishnan vs. M. Krishnamurthy; (1998) 7 Supreme Court Cases 123 4. The learned counsel, thus, submitted that due to the aforesaid reasons, the appeal has been filed with a delay of 7 months and 12 days and prayed that the same be condoned. 5. The learned counsel for respondent No. 1 strongly opposed the delay condonation application and submitted that the applicant was well aware of the status of his case as he was in constant touch with his counsel. The learned counsel also submitted that the applicant had filed a copy of his driving licence on 03.06.2011, which was notarised by the Notary on 02.06.2011. This also shows that the status of the case was well within the applicant’s knowledge. The impugned order was passed by the District Forum on 29.07.2011. After the expiry of the limitation period for filing the appeal, the respondent No. 1 sent a notice to the applicant and also his financier I.C.I.C.I Bank, Haldwani on 01.01.2011 through his counsel in which the respondent No. 1 had referred to the judgment and order dated 29.07.2011 passed by the District Forum and had asked the applicant to pay the demurrage and other expenses for the truck in dispute, which was parked at his place. A photocopy of the postal receipt for sending the said notice has been filed by the respondent No. 1. The learned counsel, thus, pleaded that the applicant knew well the fate of his consumer complaint and, therefore, the averments made by him in his affidavit filed in support of the delay condonation application are totally false. 6. The learned counsel for respondent No. 2 argued that the consumer complaint was filed in the year 2008, but the applicant has not explained with regard to persuasions made by him in respect of his case in the year 2008, 2009 and 2010. 7. We considered the submissions made by the learned counsel for the parties. 6. The learned counsel for respondent No. 2 argued that the consumer complaint was filed in the year 2008, but the applicant has not explained with regard to persuasions made by him in respect of his case in the year 2008, 2009 and 2010. 7. We considered the submissions made by the learned counsel for the parties. The appeal has been filed with an inordinate delay of 226 days and explanation given by the applicant in this regard is, in nutshell, the negligence, carelessness and unethical conduct of the counsel engaged by him for contesting his case before the District Forum. Interestingly, inspite of these allegations against the counsel, the applicant has neither disclosed the name and identity of the said counsel nor has stated anything with regard to any legal action initiated by him against the said counsel. Per contra, the respondent No. 1 has averred that the said counsel always participated in the proceedings before the District Forum and had never been negligent or careless in discharging his professional obligations. The photocopy of the driving licence of the applicant (Paper No. 66) shows that it was notarised on 02.06.2011. That means the applicant was well aware of day-to-day status of his case. The applicant has not controverted this fact in his rejoinder affidavit (Paper Nos. 76 to 84). With regard to the legal notice sent by respondent No. 1 to the applicant-complainant, it has been averred by the applicant that due to family dispute with his brother’s family, he was compelled to leave the house and, thus, the applicant has stated that it is incorrect to say that he had due knowledge of the fate of his case and he had avoided the service of the notice in collusion with the postman. Even if we concede for a moment that the fate of his case was not in his knowledge and he could know about it only when he sought information under the provisions of Right to Information Act, 2005, we fail to understand as to what prevented him to collect the information directly from the District Forum. Now it is a well settled principle of law that it is also the duty of the complainant/litigant to collect the information regarding the status of his case, even if his counsel has committed any negligence or carelessness. 8. In the case of Vinod Kumar Patel Vs. Now it is a well settled principle of law that it is also the duty of the complainant/litigant to collect the information regarding the status of his case, even if his counsel has committed any negligence or carelessness. 8. In the case of Vinod Kumar Patel Vs. Sambit Kumar Das; III (2012) CPJ 703 (NC), it has been held by the Hon’ble National Commission that it is well settled that qui facit per alium facit per se. Negligence of a litigant’s agent is negligence of the litigant himself and is not sufficient cause for condoning delay. The applicant – complainant should have shown promptitude in prosecuting the consumer complaint and should not have fully left the matter to his counsel. It was the duty of the applicant to look after the consumer complaint instituted by him and he can not take any advantage of any default on the part of his counsel. This shows total callousness and absence of serious concern on the part of the applicant. In the case of VRL Logistic Ltd. and another Vs. M.M. Gears Pvt. Ltd. and another; III (2012) CPJ 293 (NC), there was delay of 351 days in filing the revision petition. It was alleged that the delay was caused due to default of counsel for the petitioner. The said contention was not accepted by the Hon’ble National Commission and it was held that there was persistent attitude of neglect from the side of the petitioner to prosecute the matter. In the case of Swiss International Air Lines Ltd. Vs. Jitender Mohan Bhasin and others; III (2012) CPJ 583 (NC), there was delay of 244 days in filing the revision petition. It was held by the Hon’ble National Commission that the petitioner has failed to offer convincing rationale of reasons in support of his application. The name of earlier counsel was not mentioned in the application. It was further held that it is the duty cast on the petitioner itself to find out what has happened to his case and whether appeal has been filed or not. He can not put all blame upon his counsel. It was also held that there was gross negligence, deliberate inaction and lack of bonafides are imputable to the petitioner and the delay was not condoned. He can not put all blame upon his counsel. It was also held that there was gross negligence, deliberate inaction and lack of bonafides are imputable to the petitioner and the delay was not condoned. The Hon’ble Apex Court in SLP Civil No. 1427 of 2011 decided on 15.04.2010 in Estate Officer, U.T. Chandigarh and another Vs. Kanwaljit Singh Kochhar and another, has observed: “In our view, the explanation given by the petitioners for delayed filing of the applications for condonation of delay is wholly unsatisfactory and keeping in view the fact that for filing appeals against the orders of the State Commission (Section 19) and the National Commission (Section 23) passed under the Consumer Protection Act, 1986, the limitation is 30 days only, we do not find any justification to entertain their prayer for condonation of delay.” 9. The case law cited by the learned counsel for the applicant cannot help the applicant because in these judgments the Hon’ble Supreme Court has made its observation in reference to the provisions of the Limitation Act. The Hon’ble Supreme Court has observed that the rules of limitation are meant to see that the parties do not resort to dilatory tactics but seek their remedy promptly. It is true that the Hon’ble Supreme Court had also said in its judgments that the courts should be liberal in considering condonation and advance justice, but at the same time, the Hon’ble Supreme Court has also observed that it should also be seen that the parties do not resort to dilatory tactics. In the instant case, as discussed above, it is evident that the applicant had not shown promptitude in prosecuting his consumer complaint and it appears that he had left the matter totally to his counsel. Therefore, in view of the decisions of the Hon’ble Supreme Court and Hon’ble National Commission, the explanation given by the applicant for cause of 226 days delay in filing the appeal is not convincing and acceptable. 10. Thus, the appeal is hopelessly barred by limitation. The explanation given by the applicant for cause of delay in filing the appeal is not convincing and, therefore, the application filed by the applicant for condonation of delay is liable to be rejected and the appeal is liable to be dismissed as barred by time. Even on merit, we do not find any force in this appeal. The explanation given by the applicant for cause of delay in filing the appeal is not convincing and, therefore, the application filed by the applicant for condonation of delay is liable to be rejected and the appeal is liable to be dismissed as barred by time. Even on merit, we do not find any force in this appeal. The District Forum, relying on the law laid down by the Hon’ble Supreme Court, has recorded the reasons for dismissal of the consumer complaint of the applicant – complainant. 11. Accordingly, the application filed by the applicant for condonation of delay in filing the appeal is rejected. As a consequence thereof, the appeal is dismissed being barred by time. No order as to costs.