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2015 DIGILAW 227 (UTT)

MITHLESH DEVI v. BRANCH MANAGER, AXIS BANK

2015-04-23

B.C.KANDPAL, D.K.TYAGI

body2015
ORDER : (Per: Justice B.C. Kandpal, President): This is complainant’s appeal under Section 15 of the Consumer Protection Act, 1986 against the order dated 29.09.2012 passed by the District Forum, Udham Singh Nagar, thereby dismissing her consumer complaint No. 33 of 2011. The appeal has been filed with a delay of 1 year 1 month and 17 days’. 2. The appellant has filed the delay condonation application (Paper No. 23) supported by her affidavit (Paper Nos. 24 to 25). In the affidavit, it has been averred that after passing of the impugned judgment and order dated 29.09.2012, the deponent along with Smt. Santosh Devi and Sh. Mitrapal had come to Dehradun sometime in the middle of October, 2012 and had discussed the matter with some Advocates at Dehradun and thereafter the appellant had asked Sh. Ram Kumar, Advocate to prepare the appeal against the impugned judgment and order and file the same before the Hon’ble Commission within the stipulated period. It has also been averred that the said Advocate had taken all the relevant papers from the appellant and had also taken the signatures of the appellant on the grounds of appeal and thereafter the appellant went back to her native village. It has further been alleged that thereafter the appellant regularly contacted the said Advocate in order to know about the fate of the appeal and was told about the date on phone by some person alleging himself to be Munshi of the Advocate. In the last week of November, 2013, the deponent along with the above two persons came to Dehradun to meet the Advocate and visited his place on 01.12.2013 and whereupon, she was shocked to gather that he had already expired in the last week of October, 2012. The appellant thereafter inquired about the person who was attending the calls, but no satisfactory reply was given. The appellant asked for return of the file, but the same was also not returned. The appellant thereafter came to the office of the Commission on 02.12.2013 to inquire about the appeal and on checking the register, came to know that no such appeal was listed on the date told to her. The appellant went back to her village and collected the papers and engaged another counsel, who prepared the appeal and filed the same on 16.12.2013. 3. The appellant went back to her village and collected the papers and engaged another counsel, who prepared the appeal and filed the same on 16.12.2013. 3. The respondent – bank filed objections against the delay condonation application in the form of affidavit of Sh. Anurag Negi (Paper Nos. 30 to 31), thereby refuting the allegations made by the appellant in the affidavit filed in support of delay condonation application and also stated that there are laches on the part of the appellant; that the appellant has purposely delayed filing of the appeal; that the appellant has not shown any sufficient cause for condonation of delay in filing the appeal and that the application for condonation of delay is liable to be dismissed. 4. We have heard the learned counsel for the parties on delay condonation application and have also perused the record. 5. From the perusal of the averments made in the affidavit filed in support of the delay condonation application, it is evident that the appellant has put all the blame on the counsel to whom she had entrusted the papers of the case for filing the appeal before the Commission. It is now well settled that a litigant / party can not be given any advantage if there is any default on the part of the counsel. 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 negligence of a litigant’s agent is negligence of the litigant himself and is not sufficient cause for condoning delay. The appellant should have showed promptitude in prosecuting the appeal and should not have fully left the matter to the counsel. The appellant can not take any advantage of any default on the part of her counsel. 6. This apart, there is a delay of 1 year 1 month and 17 days’ in filing the appeal, which can not be said to be an ordinary delay and there is certainly an inordinate delay in filing the appeal, which has not at all been satisfactorily explained by the appellant and we are of the considered view that the explanation set forth by the appellant for delay of 1 year 1 month and 17 days’ in filing the appeal, can not be said to be satisfactory in any manner. 7. 7. 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. 8. The Hon’ble National Commission in the case of Improvement Trust, Barnala Vs. Gurnam Chand and another; II (2014) CPJ 7 (NC), has held that the contention that the delay has occurred due to office procedure, is not acceptable and is not sufficient to condone the delay and the delay was not condoned. The Hon’ble National Commission in the case of Prem Prakash Goel and others Vs. Green Carriers and Contractors (Delhi) Pvt. Ltd. and another; II (2014) CPJ 22 (NC), has held that the fragile explanation does not ring the bell. In the said case, the day-to-day explanation was not given and the delay was not condoned. 9. In view of above, we are of the definite view that the appellant has not been able to sufficiently explain the delay of 1 year 1 month and 17 days’ in filing the appeal and, therefore, the application for condonation of delay is liable to be dismissed. 10. For the reasons aforesaid, the delay condonation application is dismissed. Consequently, the appeal is also dismissed as not maintainable, being barred by time. No order as to costs.