V.B. GUPTA, PRESIDING MEMBER
Karnataka State Consumer Disputes Redressal Commission, Bangalore(for short, State Commission) vide impugned order dated 3.11.2011,dismissed Appeal Nos.2496 and 2497 of 2011, filed by the Petitioner/OP. Petitioner ought to have filed two separate petitions or in the alternative Registry ought to have given two separate numbers to these petitions. Be that it as may, along with revision petition, an application seeking condonation of delay of 251 days has also been filed.
2. Brief facts are that respondents/complainants in both cases are self employed person who supply fish to canteens and individuals by using Air Conditioned Tempo. In November, 2010, they purchased a freezer to store fish at their residence and canteen for Rs.29,500/- from the Petitioner who promised to deliver the freezer within a week. But on 17.11.2010, Petitioner delivered a bottle cooler alleging it to be a freezer which could be used for the storage of fish. Petitioner did not hand over the user manual, warranty card or delivery challan to them. However, respondents took delivery of the bottle cooler believing it to be a freezer. When they stored daily supply of fish in the said cooler, the fish got rotten at the end of the day. On very next day, they approached Petitioners show room and complained about the rotting of the fish for which they were assured by the petitioner to send a service mechanic to check out the problem. After that, respondents did not use the said cooler to store the fish. In the month of November, 2010, one service mechanic visited respondents house as well as the canteen and told that the said freezer is not a freezer which is used for storing fish but it is only a bottle cooler. This amount to unfair trade practice and deficiency of service. Request made by respondents to replace the bottle cooler and supply the freezer, vent in vain. Therefore, they filed complaints.
3. Defence taken up by petitioner in its written statement is that, one Madhava had purchased two Blue Star Chest Cooler by paying Rs. 58,400/- in cash for which, petitioner had issued the Cash-memo to him. After purchase, said Madhava requested petitioner to deliver the chest coolers to the respondents. As such, petitioner issued the delivery challan in the name of the respondents and delivered the chest/water coolers to them. After using the said chest cooler for nearly 25 days, respondents came to his show-room and, made false allegations. Respondents have filed the complaints only to harass him.
4. Dakshina Kannada District Consumer Disputes Redressal Forum, Mangalore, (for short, District Forum) vide order dated 15.7.2011, allowed the complaint and passed the following order;
œThe complaints are allowed. Opposite Party is directed to refund Rs.29,500/-(Rupees twenty nine thousand and five hundred only) to each Complainants along with compensation of Rs.2,000/- (Rupees two thousand only) each and litigation expenses of Rs.2,000/- (Rupees two thousand only) each to the Complainants within one month from the date of receipt of this order?.
5. Aggrieved by order of District Forum, respondents filed appeals before the State Commission, which were dismissed at the admission stage itself.
6. Hence, this revision.
7. I have heard learned counsel for the petitioner and gone through the record.
8. Grounds on which condonation of delay has been sought read as under;
œ aThis Revision petition impugns the common final order and judgment dated 03/11/2011 of the Honble State Commission in Appeal No.2496/ 2011 and 2497/2011, wherein the Honble State Commission dismissed the Appeal filed by the petitioner.
b. That the contents of petition are not repeated herein for the sake and brevity. Hence same may be read as part of the present application.
c. The petitioner approached the Honble High Court to set aside the order of the Honble State Commission and the writ petition was disposed off by the Honble High Court with the finding that the remedy lies with the Honble National Commission. Hence the petitioner approached this Honble Commission. That the Petition was disposed off by the Honble High Court on 21.6.2012 and the Certified Copy was ready on ____hence the 251 days delay in filing this petition?.
9. It is well settled that sufficient cause with regard to condonation of delay in each case, is a question of fact.
10. InRam Lal and Ors. Vs. Rewa Coalfields Ltd., AIR 1962 Supreme Court 361, it has been observed;
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 forconsideration; but the scope of the enquiry while exercising the discretionarypower after sufficient cause is shown would naturally be limited only to such facts as the Court may regard as relevant ?.
11. Similarly,inOriental Insurance Co. Ltd. vs. Kailash Devi and Ors. AIR 1994 Punjab and Haryana 45,it has been laid down that;
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 bona fide is imputable to the applicant. The discretion to condone the delay is to be exercised judicially i.e. one of is not to be swayed by sympathy or benevolence?.
12.InœR.B. Ramlingam Vs. R.B. Bhavaneshwari, 2009 (2) Scale 108?, it has been observed ;
œWe hold that in each and every case the Court has to examine whether delay in filing the special appeal 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?.
13. Supreme Court in œAnshul Aggarwal vs. New Okhla Industrial Development Authority, IV (2011) CPJ 63 (SC)?laid down that;
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 againstthe orders of the consumer Foras.?
14. Further, Honble Supreme Court in œM/s Advance Scientific Equipment Ltd. and Anr. Vs. West Bengal Pharma and Photochemical Development Corporation Ltd. (Appeal (Civil) Nos. 17068-17069/2010, decided on 9 July 2010) wherein it observed inter alia, as under;
œ ¦¦We are further of the view that the petitioners venture of filing petition under Article 227 of the Constitution was clearly an abuse of the process of the Court and the High Court ought not to have entertained the petition even for a single day because an effective alternative remedy was available to the petitioner under Section 23 of the Act and the orders passed by the State Commission did not suffer from lack of jurisdiction?
15. In view of decision in M/s Advance Scientific Equipment Ltd.(supra) High Court ought not to have entertained the writ petition filed by the petitioner, since petitioner had an effective alternate remedy available under the Act. Under these Circumstances, the act of petitioner in approaching a wrong forum, shall not entitle him to have the delay condoned.
16. Under these circumstances, no sufficient cause is made out for condoning the long delay of 251 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).
17. Petitioner is directed to deposit the cost by way of demand draft in the name of œConsumer Legal Aid Account? within eight weeks from today.
18. In case, petitioner fails to deposit the cost within the prescribed period, then it shall also be liable to pay interest @ 9% p.a., till realization.
19. List on 15.02.2013 for compliance.