Lokeshwar Prasad, President:
1. The present appeal, filed by the appellant under Section 16 of the Consumer Protection Act, 1986 (hereinafter referred to as âthe Act) is directed against order dated 8.7.2003, passed by District Forum (Central), ISBT, Kashmere Gate, Delhi, in Complaint Case No. 1332/2003 entitled M/s. Misuki Export Pvt. Ltd. v. M/s. Comm-SYS-INC.
2. The facts, relevant for the disposal of the present appeal, briefly stated, are that the appellant M/s. Misuki Exports Pvt. Ltd. through its Director Shri Shyam Sunder Verma had filed a complaint under Section 12 of the Act before the District Forum, averring therein that appellant was a reputed business concern, engaged in the business of export of readymade garments. It was stated that the appellant entered into a business contract with the respondent on 25.8.2002 for the installation of a Panasonic System for a total consideration of Rs 20,000/-. It was stated that it was agreed between the parties that the respondent would provide one-year service free of charge. It was stated that the appellant had paid Rs. 5,000/- as advance money and the balance amount was to be paid on the installation of that system. It was alleged that in contravention of the business contract entered into between the parties the respondent failed to instal that system. Alleging deficiency in service on the part of the respondent, the appellant, in the complaint filed before the District Forum had claimed the refund of the amount of Rs. 5,000/- from the respondent together with interest. The appellant had also claimed business damages/loss of Rs. 5,00,000/- and compensation of Rs. 5,00,000/-.
3. The learned District Forum vide impugned order has held that the appellant was not a âconsumer within the meaning of Section 2(1)(d)(ii) of the Act and on the basis of above finding has held that the complaint, filed by the appellant, was not maintainable before a redressal agency, established under the Act.
4. Feeling aggrieved, the appellant has preferred the present appeal under Section 15 of the Act.
5. We have heard the learned Counsel for the appellant at length on the question of admission of the present appeal and have also carefully gone through the documents/material on record. In terms of the provisions contained in Section 15 of the Act, a person, aggrieved by an order, made by the District Forum, can prefer an appeal against such order to the State Commission within a period of 30 days from the date of the order. However, proviso to Section 15 of the Act provides that the State Commission may entertain an appeal even after the expiry of the above said period of 30 days, if it is satisfied that there was âsufficient cause for not filing the same within the above said period. The words âsufficient cause occurring in proviso to Section 15 of the Act, are of utmost significance. As per settled law, culled out from various judicial decisions, the above expression âsufficient cause, though deserves to receive a liberal interpretation, yet, a just and equitable balance has to be maintained between the right secured by the respondent as a result of expiry of the prescribed period of limitation and the injustice of depriving the appellant of adjudication control, which means the cause is bona fide and beyond the control of the appellant. Though, no hard and fast line can be drawn as to what affords âsufficient cause in a given case, yet, again, as per settled law, any cause which prevents a person from approaching the Court within time is âsufficient cause. In doing so, it is the test of a reasonable man in normal circumstances which has to be applied.
6. Admittedly the present appeal has not been filed by the appellant within the prescribed period of 30 days because the order being impugned in the present proceedings was passed by the learned District Forum on 8.7.2003 and the appeal has been filed by the appellant on 28.8.2003. Therefore, the question requiring consideration at the very threshold is as to whether the appellant has shown âsufficient cause for not filing the appeal in time within the meaning of proviso to Section 15 of the Act. Further Sub-rule (4) of Rule 8 of the Delhi Consumer Protection Rules, 1987, framed under Section 30 of the Act provides that when the appeal is presented after the expiry of the period of limitation as specified in the Act, the memorandum shall be accompanied by an application supported by an affidavit setting forth the facts on which the appellant relies to satisfy the Commission that he has âsufficient cause for not preferring the appeal within the period of limitation.
7. In the present case no such application as contemplated under Sub-rule (4) of Rule 8 of the Delhi Consumer Protection Rules, 1987 has been filed and only a bald statement has been made in para 4 of the memorandum of appeal that certified copy of the impugned order was obtained on 16.7.2003 and thereafter the appellant fell seriously ill, therefore, could not file the present appeal in time. In support of the above averments there is neither any supporting affidavit nor any document such as certificate from a registered medical practitioner. delay in filing the appeal cannot be condoned as a matter of generosity. Proof of âsufficient cause is a condition precedent for the exercise of such discretion by the appellate authority. In our above views, we stand fortified by a decision of the Honble National Commission in case Vice-Chairman, Delhi Development Authority v. O.P. Gauba, reported as III (1995) CPJ 18 (NC)=1986-96 CONSUMER 2731 (NS).
8. In the presence of the above facts and the position explained above, in our opinion, whatever liberal interpretation might be put on the words âsufficient cause it would be impossible for us to hold that there was no negligence on the part of the appellant. In our opinion, as a matter of fact, the appellant has miserably failed to show âsufficient cause for condoning the delay in filing the present appeal and, therefore, the present appeal is hopelessly barred by limitation.
9. The present appeal, filed by the appellant, besides being barred by limitation, is also devoid of substance on merits because the learned District Forum vide impugned order as already stated has held that the appellant is not a âconsumer within the meaning of Section 2(1)(d)(ii) of the Act. The Act stands amended after the coming into force of the Consumer Protection (Amendment) Act, 2002 (hereinafter referred to as âthe Amending Act of 2002'). As a result of coming into force of Amending Act of 2002, which has come into force w.e.f. 15th March, 2003, the definition of the word âconsumer as occurring in Section 2(1)(d)(ii) of the Act has been amended and in the said clause the following words have been added:
âbut does not include a person who avails of such services for any commercial purpose.â
10. Thus, as a result of amendment effected in the Act by the Amending Act of 2002 a person hiring or availing of âservice for any commercial purpose is not a âconsumer within the meaning of Section 2(1)(d)(ii) of the Act.
11. On the basis of documents/material on record it is not in dispute that the contract for the installation of Panasonic System was entered into by the appellant with the respondent in connection with his business activity i.e., export of readymade garments. This is further apparent from the fact that the appellant in the complaint had claimed business loss to the extent of Rs. 5,00,000/-. The learned Counsel for the appellant during the course of arguments has placed reliance on a decision of the Honble National Commission in case New India Assurance Co. Limited v. B.N. Sainani [III (1997) CPJ 1 (SC)], and a decision of the State Commission, Madhya Pradesh in case Narendra Singh v. New India Assurance Co. Limited and Another [I (1998) CPJ 31]. We have carefully gone through the above mentioned two decisions. There can be no two opinions insofar as the proposition of law laid down therein is concerned, but the same, in the given facts, in no way help the cause of the appellant in the present appeal because the above mentioned decisions relate to the period prior to 15.3.2003 when the amendments in the Act, as a result of Amending Act, 2003 had not come into force. As already stated, the position has changed after 15.3.2003 as a result of coming into force the Amending Act of 2003 which has excluded the services availed of or hired for commercial purposes from the definition of the word âconsumer
Thus, viewed from all angles, the above mentioned appeal, filed by the appellant, is devoid of substance. The same merits dismissal. Accordingly the same is dismissed in limine with no order as to costs.
However, before concluding we would like to make it clear that the dismissal of the present appeal by this Commission will not operate to the prejudice of the appellant in the matter of pursuing any other remedy that may be available to the appellant under any other law for the time being in force.
The present appeal, filed by the appellant, stands disposed of in above terms.
Appeal dismissed.