Sham Sunder (Retd.), President:
1. This appeal is directed against the order dated 08.11.2013, rendered by the District Consumer Disputes Redressal Forum-II, UT, Chandigarh (hereinafter to be called as the District Forum only) vide which, it dismissed the complaint, filed by the complainant (now appellant), with a liberty to resort to any other legal remedy, available to it, under the provisions of law, for redressal of its grievance.
2. The facts, in brief, are that, on 17.03.2012, the complainant deposited an account payee cheque, amounting to Rs.9,36,769/-, which was dishonoured, with the remarks œwrong account holder name?. The complainant was charged Rs.200/-, for the same, on 19.03.2012. When the matter was brought to the notice of the Opposite Parties, they corrected their mistake. Thereafter, the cheque was re-deposited, on 23.03.2012, for which the Opposite Parties charged interest, amounting to Rs.2,604.98Ps.
3. On 19.04.2012, the complainant placed requisition for issuance of non multi-city cheques, but the Opposite Parties, of their own, issued multi-city cheques. Later on, of their own, they issued non-multi city cheques, and thereby charged the complainant, twice It was stated that, on 20.04.2012, the complainant firm, issued RTGS remittance of Rs.5,99,056/-, to the Indian Oil Corporation Limited (IOCL) Panipat, but the Opposite Parties diverted the said payment to IOCL Bombay, by making entry, in a different account, as a result whereof, release of the raw material was delayed and the supply of tanker to the complainant firm, was held up. When the matter was taken up with the Opposite Parties, the payment was got reverted and the mistake was rectified. It was further stated that the Opposite Parties, arbitrarily charged interest, in the sum of Rs.1,107.84Ps., for wrong payment made by them.
4. It was further stated that, on 23.04.2012, the complainant firm, issued another RTGS for Rs.3.00 lacs to IOCL Panipat, but the Opposite Parties, committed a blunder, by entering the amount of Rs.30,00,056/-.The said mistake was finally rectified, on 01.05.2012, but the Opposite Parties charged interest of Rs.8,967.67Ps. Further, on 27.04.2012, the RTGS made by the complainant to M/s Rex Fuel Management Consultant failed, as the Opposite Parties, instead of feeding the beneficiarys account, fed the senders account, in their system, due to which, the remittance was reverted to its (complainant) account. It was further stated that the Opposite Parties, also kept on charging interest, on the previous transactions, without supplying any details.
5. It was further stated that vide letters dated 12.05.2012 and 16.05.2012, the Opposite Parties, demanded a sum of Rs.5,67,826/- and Rs.53,074/- respectively, from the complainant. The complainant requested the Opposite Parties, a number of times, to look into the matter, but to no avail. Legal notice dated 08.10.2012, was also served upon the Opposite Parties, upon which they simply replied vide letter dated 15.10.2012, that the matter had been forwarded to the Senior Officials, and their remarks/decision would be suitably communicated to the complainant, in due course. It was further stated that, however, no response was received, from the Opposite Parties. It was further stated that the aforesaid acts of the Opposite Parties, amounted to deficiency, in rendering service, as also indulgence into unfair trade practice. When the grievance of the complainant, was not redressed, left with no alternative, a complaint under Section 12 of the Consumer Protection Act, 1986 (hereinafter to be called as the Act only), was filed, seeking various reliefs, against the Opposite Parties.
6. The Opposite Parties, in their joint written version, pleaded that the complainant did not fall within the definition of a consumer, and the dispute involved, in the complaint, was not a Consumer Dispute, as it was a commercial contract, concluded between the parties, which was aimed at seeking working capital finance, for business purposes, which ran into crores of rupees. It was stated that the matter was amicably settled, with the complainant, by affording requisite credit to his account. It was denied that any excess or arbitrary rates of interest were applied, in respect of the account of the complainant. It was further stated that only the difference of interest, legally due, was debited to the account of the complainant firm. It was further stated that the exact position was duly explained to the complainant firm, vide letters dated 12.05.2012 and 16.05.2012, respectively. It was denied that any financial loss was caused to the complainant. It was further stated that neither there was any deficiency, in rendering service, on the part of the Opposite Parties, nor they indulged into unfair trade practice. The remaining averments, were denied, being wrong.
7. In the rejoinder, filed by the complainant, it was pleaded that, it being a partnership firm, was earning its livelihood, by engaging itself, in manufacturing and supply of all types of Bitumen, and other allied products, for which the services of the Opposite Parties were hired, by having various types of accounts, with them. The remaining averments, contained in the complaint, were reiterated, by the complainant, whereas, those, in the written reply, were repudiated.
8. The Parties led evidence, in support of their case.
9. After hearing the Counsel for the parties, and, on going through the evidence, and record of the case, the District Forum, dismissed the complaint, as stated above.
10. Feeling aggrieved, the instant appeal, has been filed by the appellant/complainant.
11. Alongwith the appeal, an application for condonation of delay of 61 days, as per the applicant/appellant (as per the office report 63 days), in filing the same (appeal), has been moved, stating therein, that, since, its (applicant/appellant) one of the Partners, was away from the city, for about three months, in connection with some social activities/establishment of Gaushalas, as a result whereof, he could not contact the Advocate concerned. It was further stated that, certified copy of the order impugned, remained with the son of the said Partner. It was further stated that, it was on 14.02.2014, when the said Partner of the applicant/ appellant came back, and came to know of the order impugned, the appeal was filed. It was further stated that, on account of the reasons, aforesaid, the delay of 61 days (as per the office report 63 days), in filing the appeal occurred. It was further stated that the delay, in filing the appeal, was neither intentional, nor deliberate. Accordingly, the prayer, referred to above, was made.
12. We have heard the Counsel for the applicant/appellant, on the application, for condonation of delay, as also, in the main appeal, at the preliminary stage, and have gone through the record of the case, carefully.
13. The question, that arises for consideration, is, as to whether, there is sufficient cause for condonation of delay of 61 days, as per the applicant/appellant (as per the office report 63 days), in filing the appeal, under Section 15 of the Act. It was held in Smt.Tara Wanti Vs State of Haryana through the Collector, Kurukshetra AIR 1995 Punjab and Haryana 32, a case decided by a Full Bench of the Punjab and Haryana High Court, that sufficient cause, within the meaning of Section 5 of the Limitation Act, must be a cause, which is beyond the control of the party, invoking the aid of the Section, and the test to be applied, would be to see, as to whether, it was a bona-fide cause, in as much as, nothing could be considered to be bonafide, which is not done, with due care and attention. In New Bank of India Vs. M/s Marvels (India): 93 (2001) DLT 558, Delhi High Court, it was held as under:-
œNo doubt the words œsufficient cause? should receive liberal construction so as to advance substantial justice. However, when it is found that the applicants were most negligent in defending the case and their non-action and want of bonafides are clearly imputable, the Court would not help such a party. After all œsufficient cause? is an elastic expression for which no hard and fast guide-lines can be given and Court has to decide on the facts of each case as to whether, the defendant who has suffered ex-parte decree has been able to satisfactorily show sufficient cause for non- appearance and in examining this aspect, cumulative effect of all the relevant factors is to be seen.?
14. In Oriental Insurance Co. Ltd. vs. Kailash Devi and Ors. AIR 19107 Punjab and Haryana 45, it was held as under:-
œThere is no denying the fact that the expression sufficient cause should normally be construed liberally so as to advance substantial justice, but that would be in a case where no negligence or inaction or want of bonafides is imputable to the applicant. The discretion to condone the delay is to be exercised judicially i.e. one is not to be swayed by sympathy or benevolence.?
15. In R.B. Ramalingam Vs. R.B. Bhuvaneswari, 2009 (2) Scale 108, the Supreme Court observed as under:-
œWe hold that in each and every case the Court has to examine whether delay in filing the Special 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?.
16. In Balwant Singh Vs. Jagdish Singh and Ors, V (2010) SLT 790=III (2010) CLT 201 (SC), it was held as under:-
œThe party should show that besides acting bona fide, 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]?
17. In Mahant Bikram Dass Chela Vs. Financial Commissioner and others, AIR 1977, S.C. 2221, it was held as under:-
œSection 5 of the Limitation Act is a hard task-master and judicial interpretation has encased it within a narrow compass. A large measure of case-law has grown around Section 5, its highlights being that one ought not easily to take away a right which has accrued to a party by lapse of time and that therefore a litigation who is not vigilant about his rights must explain every days delay?
18. In Ansul Aggarwal Vs. New Okhla Industrial Development Authority, 2012 (2) CPC 3 (SC) it was held as under:-
œIt 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?
19. A bare reading of the first proviso, engrafted to Section 15 of the Act, makes it clear, that the material part of the language thereof is pari-materia to Section 5 of the Limitation Act, 1963. The stand taken by the Counsel for the applicant/appellant, in the application, that the delay of 61 days (as per the office report 63 days), in filing the appeal, occurred, on account of the reason that, one of its (applicant/appellant), Partners was away from the City, for about three months, in connection with some social activities/establishment of Gaushalas, as a result whereof, he (Counsel) could not be contacted, and it was only on 14.02.2014, when he (partner of the applicant/appellant), came back, it was revealed that the complaint had been dismissed, by the District Forum, does not merit acceptance, for the purpose of condoning the delay. It may be stated here, that the Consumer Complaint was filed through G.C. Walia and Jyoti Walia, Partners of the applicant/appellant Firm. If one of the Partners of the applicant/appellant was allegedly not present, in the city, for the period of three months, then after 08.11.2013, when the order impugned was passed, by the District Forum, the other Partner could have contacted the Advocate, to file an appeal, but it was not done. The other Partner, who was in station, could have also conveyed the decision of the Consumer Complaint, to the other Partner, on telephone, who was alleged away from the city, and, thereafter, the case file, alongwith the certified copy of the order impugned, could have been handed over to the Advocate concerned, for the purpose of filing an appeal, but this was also not done. The bald assertions of the applicant/appellant that since, one of its Partners was away from the City, for about three months, in connection with some social activities/establishment of Gaushalas, as a result whereof, the appeal could not be filed, in time, is of no significance, and could not be considered, as a valid ground, to condone the delay, in filing the same (appeal). Since, the instant appeal has been filed, after a long delay of 61 days (as per the office report 63 days), without furnishing any plausible explanation, it could be said that the applicant/appellant was not diligent in pursuing the matter. The prescribed period of limitation, as envisaged by Section 15 of the Act, for filing an appeal is 30 days, from the date of receipt of a copy of the order. The applicant/ appellant did not act, with due diligence, resulting into delay of 61 days (as per the office report 63 days), in filing the appeal, which is more than two times, beyond the prescribed period of limitation. As stated above, the cause, set up by the applicant/appellant, in the application, for condonation of delay, does not merit acceptance. The mere fact that the applicant/appellant, acted in a leisure mood, without envisaging the consequences, which could ensue, on account of non-filing of an appeal, within the period prescribed, under Section 15 of the Act, does not mean that it could be shown undue indulgence. The delay, in filing the appeal was, thus, intentional, willful and deliberate. Since, no sufficient cause is constituted, from the averments, contained in the application, the delay of 61 days, (as per the office report 63 days), cannot be condoned. The principle of law, laid down, in the aforesaid cases, is fully applicable to the facts of the instant case. The application is, thus, liable to be dismissed.
20. The next question, that arises, for consideration, is, as to whether, even if, sufficient cause is shown, it is obligatory, on the Commission, to condone the delay. The answer to this question, is in the negative. In Ram Lal and Ors. Vs. Rewa Coalfields Ltd., AIR 1962 Supreme Court 361, it was held as under:-
œIt 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 S.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 bona fides may fall for consideration; but the scope of the enquiry 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.?
21. It is evident, from the principle of law, laid down in Ram Lal and Ors.s case (supra), that even 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, requires the Commission, to take into consideration, all the relevant factors, and it is, at this stage that diligence of the party(s) or its/their bonafides, may fall for consideration. In the instant case, as stated above, it was obligatory, on the applicant/appellant, to take immediate steps to ensure that the appeal was filed within the prescribed period, as envisaged by Section 15 of the Act. However, the Partners of the applicant/appellant, just slept over the matter, and did not take the requisite steps to file the appeal, in time. It was, thus, a case of complete lack of bonafides and inaction, on the part of the applicant/appellant. The principle of law, laid down in Ram Lal and Others case(supra) is fully applicable to the instant case. This is, therefore, not a fit case, in which this Commission, should exercise its discretion, in favour of the applicant/appellant, in condoning the delay.
22. Now coming to the main appeal, the Counsel for the appellant, submitted that, no doubt, the appellant is a Partnership Firm, and was engaged in the manufacturing of Bitumen and other allied products, but it was only for the purpose of livelihood of its Partners. He further submitted that, as such, the complainant fell within the definition of a consumer, but the District Forum was wrong, in holding to the contrary. He further submitted that the order of the District Forum, being illegal and invalid, is liable to be set aside.
23. The core question, that falls for consideration, is, as to whether, the complainant fell within the definition of a consumer or not, as defined by Section 2(1)(d)(ii) of the Act. For proper decision of this question, the provisions of Section 2(1)(d) and Section 2(1)(o), defining the `consumer` and service respectively, are extracted as under:-
œ(d) "Consumer" means any person who, -
(i) buys any goods for a consideration which has been paid or promised or partly paid and partly promised, or under any system of deferred payment and includes any user of such goods other than the person who buys such goods for consideration paid or promised or partly paid or partly promised or under any system of deferred payment when such use is made with the approval of such person but does not include a person who obtains such goods for resale or for any commercial purpose; or
(ii) [hires or avails of] any services for a consideration which has been paid or promised or partly paid and partly promised, or under any system of deferred payment and includes any beneficiary of such services other then the person who [hires or avails of] the services for consideration paid or promised, or partly paid and partly promised, or under any system of deferred payment, when such services are availed of with the approval of the first mentioned person [but does not include a person who avails of such services for any commercial purpose]; Added by Act 62 of 2002 w.e.f. 15.03.2003.
[Explanation. For the purposes of this sub-clause "commercial purpose" does not include use by a consumer of goods bought and used by him and services availed by him exclusively for the purposes of earning his livelihood, by means of self-employment;]
Section 2(1)(o) defines service as under:-
(o) "services" means service of any description which is made available to potential 16[users and includes, but not limited to, the provision of] facilities in connection with banking, Financing insurance, transport, processing, supply of electrical or other energy, board or lodging or both, 17[housing construction] entertainment, amusement or the purveying of news or other information, but does not include the rendering of any service free of charge or under a contract of personal service.?
24. According to Section 2(1)(d)(i) of the Act, the consumer does not include a person who obtains such goods for resale or for any commercial purpose. Section 2(1)(d)(ii), which was amended by Act 62 of 2002 w.e.f. 15.03.2003, clearly lays down that the person who hires or avails of the services, for a consideration, for any commercial purpose, shall not qualify, as a consumer. In the instant case, admittedly, the complainant is a Partnership Firm. There is also, no dispute, with regard to the factum that the complainant is engaged in commercial activity of manufacturing Bitumen and its other allied products, on a large scale. The appellant/complainant, availed of the credit limits, from the Opposite Parties, in crores of rupees, as is evident, from Annexure R-4, copy of the letter written by them (Opposite Parties), to it. The turnover of the complainant is very huge, running into crores. These credit facilities were availed of, in other words, the services of the Opposite Parties were hired by the complainant, for commercial purpose i.e. for manufacturing activity, aforesaid, to earn huge profits, and not for earning livelihood, by way of self-employment. Under these circumstances, the complainant did not qualify as a consumer, as defined by Section 2(1)(d)(i) and (ii) of the Act. It is, therefore, held that the complainant does not fall within the ambit of a consumer, and, as such, the complaint was not maintainable.
25. The Counsel for the appellant, however, placed reliance on Doson Chemicals Pvt. Ltd. and Ors. Vs. United Bank of India and Anr., First Appeal No.88 of 2000, decided on 09.12.2002, by the National Consumer Disputes Redressal Commission, New Delhi, and Punjab National Bank Vs. L.N. Navetia, IV (2006) CPJ 81 NC, in support of his contention, that the complainant fell within the definition of a consumer. It may be stated here, that Section 2(1)(d)(ii), was amended by Act 62 of 2002 w.e.f. 15.03.2003, and it was incorporated therein that services availed of, for commercial purpose, were excluded from the ambit of services, and person doing so, did not fall within the definition of a consumer. Doson Chemicals Pvt. Ltd.`s case (supra), was decided on 09.12.2002 i.e. before the amendment aforesaid, was incorporated in Section 2(1)(d)(ii), i.e. before. 15.03.2003. Similarly, in Punjab National Bank`s case (supra) the dispute related to the cash credit limit of Rs.5 lacs, which was obtained by the complainant, on 26.09.1992. The complaint was filed somewhere in the year 1996 i.e. before the amendment, referred to above, was carried out, in Section 2(1)(d)(ii), of the Act. Under these circumstances, no help from these cases, can be drawn by the Counsel for the appellant. On the other hand, in Economic Transport Organization Vs.Charan Spinning Mills (P) Ltd., and Anr., I (2010) CPJ 4 (SC), a Constitution Bench of the Hon`ble Supreme Court held that if the goods are purchased or the services are availed of, by the complainant, for any commercial purpose, then it does not fall within the definition of a consumer, and consequently, the consumer complaint will not be maintainable, in such cases. In Birla Technologies Ltd. Vs. Neutral Glass and Allied Industries Ltd. I (2011) CPJ 1 (SC) and Sanjay D.Ghodawat Vs. R.R.B.Energy Ltd., IV (2010) CPJ 178 (NC), a case decided by a Full Bench of the National Consumer Disputes Redressal Commission, New Delhi, similar principle of law, was laid down. In M/s MCS Computer Services (P) Ltd. Vs. M/s Allena Auto Industries Pvt. Ltd., Revision Petition No. 3517 of 2007, decided on 14.03.2012, it was, in clear-cut terms, held by the National Consumer Disputes Redressal Commission, New Delhi, that the respondent/complainant, being a Private Limited Company, and the commercial activity, being carried on by it, could not be said to be for earning its livelihood, by way of self employment. It was further held that the Private Limited Company, had to act through somebody, and the question of livelihood and self employment, would not arise. The principle of law, laid down, in the aforesaid cases, is fully applicable to the facts of the instant case. It is, therefore, held that since the complainant was engaged in manufacturing activity, aforesaid, on a large scale, to earn huge profits, it did not fall within the definition of a consumer, and, as such, the Consumer Complaint was not maintainable. The submission of the Counsel for the appellant, therefore, being devoid of merit, must fail, and the same stands rejected.
26. No other point, was urged, by the Counsel for the applicant/appellant.
27. For the reasons, recorded above, the application for condonation of delay of 61 days, (as per the office report 63 days), being devoid of merit, is dismissed. Consequently, the appeal, under Section 15 of the Act, is also dismissed, at the preliminary stage, with no order as to costs, being barred by time, as also, on the ground that the same was not maintainable, as the complainant did not fall within the definition of a consumer, under the Act.
28. Certified copies of this order, be sent to the parties, free of charge.
29. The file be consigned to Record Room, after completion.