M/S. Emaar Mgf Land Limited New Delhi Vs. Rupinder Kaur and Others - Court Judgment

SooperKanoon Citationsooperkanoon.com/1107662
CourtPunjab State Consumer Disputes Redressal Commission SCDRC Chandigarh
Decided OnJan-25-2013
Case NumberMisc. Appl. No. 1127 of 2012 In First Appeal No. 731 of 2012
JudgeTHE HONOURABLE MR. INDERJIT KAUSHIK, PRESIDING MEMBER & THE HONOURABLE MR. BALDEV SINGH SEKHON, MEMBER
AppellantM/S. Emaar Mgf Land Limited New Delhi
RespondentRupinder Kaur and Others
Excerpt:
inderjit kaushik, presiding member 1. applicants/appellants- m/s emaar mgf land limited and another (in short, “the applicants”) have filed this application for condonation of delay of 210 days in filing the present appeal. 2. it was submitted that the applicants have filed the appeal against the order dated 04.10.2011 passed by the district forum, mohali. the applicants were regularly appearing before the district forum through their counsel and had filed their reply and evidence. later on, it came to light that the said counsel did not appear before the district forum on the date fixed for arguments. the applicants were under the bonafide belief that since the said counsel was taking care of the matter, he would duly intimate the status of the case. around 20.04.2012, the applicants were surprised to receive a legal notice dated 14.04.2012 sent by m/s chartered law associates on behalf of the respondents and the copy of the impugned order dated 04.10.2011 was enclosed along with the said notice. it was only after the receipt of above said notice that the applicants came to know that the district forum has passed the order against them. no copy of the order was received from the district forum by the applicants. 3. immediately on receipt of the said order, the applicants tried to obtain the papers from the counsel, but no papers were traceable and the applicants immediately engaged a new counsel and instructed him to apply for certified copy of the case file and impugned order as well as to draft the accompanying appeal. certified copies of the case papers and impugned order were obtained on 30.04.2012 and thereafter the appeal was drafted. if the limitation is considered from the date of order i.e. 04.10.2011, then there is delay of 210 days in filing the appeal, but if the same is counted from the date of knowledge of the impugned order, then there is delay of only 11 days in filing the appeal. 4. the above said delay is bonafide and was caused solely due to the fact that the impugned order was not received by the applicants and the counsel engaged did not appear before the district forum, nor intimated the case status to the applicants. in case the delay is not condoned, then irreparable loss and prejudice will be caused to the applicants. it was prayed that the application may be allowed and the delay of 210 days (if calculated from the date of impugned order) or 11 days (if calculated from the date of knowledge) in filing the appeal may be condoned in the interest of justice. 5. in the reply filed on behalf of the respondents, it was submitted that the applicants were very much appearing before the district forum and they were well aware about their case. the plea of the applicants is not believable and is based on conjectures and surmises. there is delay of 210 days in filing the appeal i.e. more than seven months. the applicants were continuously sleeping over the matter and failed to take further steps within the stipulated time. it is unbelievable that the applicants received a legal notice from the counsel for the respondents. it is also unbelievable that the district forum decided the complaint without giving chance of hearing to the applicants. the applicants were appearing in the case through their counsel, but they themselves never bothered to inquire about the stage of the case. the applicants have failed to mention the names of both the earlier as well as new counsel. no date of applying for the certified copy of the case file and impugned order is mentioned in the application. it is nowhere prescribed under the law that the limitation will start from the date of knowledge of the impugned order. on merits, it was denied that there is delay of 11 days in filing the appeal. other pleas of the application were also denied and it was prayed that the application may be dismissed. 6. we have heard the learned counsel for the parties and have gone through the record. 7. the explanation given by the applicants for condonation of delay is that the counsel, who represented them before the district forum did not appear on the date of passing of the impugned order, nor intimated the decision of the complaint to the applicants and only after the receipt of legal notice dated 14.04.2012, accompanying by the impugned order dated 04.10.2011, sent on behalf of the respondents, the applicants came to know about the passing of the impugned order and thereafter copy of the impugned order along with case papers were obtained and the appeal was filed immediately. 8. this explanation given by the applicants is not tenable, because the applicants were duly represented by the counsel before the district forum and were taking legal advice from their counsel before the district forum throughout the pendency of the complaint and if the counsel has not appeared on the date of passing the impugned order, then also the applicants were supposed to know the fate of the complaint and they could make inquiry from the district forum. even otherwise, the name of the counsel, who represented the applicants before the district forum, is not disclosed nor the name of new counsel engaged by them is mentioned in the application. even no date is given as to when the new counsel was engaged. affidavit of the previous counsel has also not been filed. the applicants remained silent for a long period and it was only after the receipt of legal notice date 14.04.2012 sent on behalf of the respondents that the applicants suddenly thought of filing the present appeal. the impugned order was passed on 04.10.2011 and as per pleading of the application, the legal notice was received by the applicants on 14.04.2012 and from 04.10.2011 to 14.04.2012, no explanation is forthcoming as to why the applicants have not inquired about the fate of the complaint from their counsel or from the district forum. the application filed by the applicants is altogether silent to explain the delay in filing the appeal. the applicants have adopted a careless and casual approach, taking it granted that the delay of whatsoever period will be condoned, but the law of limitation has undergone a sea change and now it is settled that the delay can be condoned when it has been properly explained, but the delay due to casual approach cannot be condoned, at the asking of the applicant. 9. the honble supreme court in case “lanka venkateswarlu (d) by lrs. vs state of a.p. and others”, 2011 (2) rcr civil-880 (sc), after considering the entire case law on the point of delay, in para-26(relevant portion) observed as under:- “once a valuable right has accrued in favour of one party as a result of the failure of the other party to explain the delay by showing sufficient cause and its own conduct, it will be unreasonable to take away that right on the mere asking of the applicant, particularly when the delay is directly a result of negligence, default or inaction of that party. justice must be done to both parties equally. then alone the ends of justice can be achieved. if a party has been thoroughly negligent in implementing its rights and remedies, it will be equally unfair to deprive the other party of a valuable right that has accrued to it in law as a result of his acting vigilantly”. 10. in another case “oriental arora chemical industries limited vs gujarat industrial development corporation”, (2010) 5 scc- 459, the honble supreme court observed as follows:- “we have considered the respective submissions. the law of limitation is founded on public policy. the legislature does not prescribe limitation with the object of destroying the rights of the parties but to ensure that they do not resort to dilatory tactics and seek remedy without delay. the idea is that every legal remedy must be kept alive for a period fixed by the legislature. to put it differently, the law of limitation prescribes a period within which legal remedy can be availed for redress of the legal injury. at the same time, the courts are bestowed with the power to condone the delay, if sufficient cause is shown for not availing the remedy within the stipulated time”. 11. honble punjab and haryana high court in case reported as “union of india and ors. vs hari singh “, 2009(4) rcr (civil)-654, declined to condone the delay for taking the matter in casual manner. in para-7, it was observed as follows:- “even otherwise, no explanation is forthcoming from 15.09.2004 to 18.01.2005 for not filing the appeal. the pleadings in application itself show that the matter was being taken in most casual manner, without bothering for the law of limitation”. 12. in view of above discussion and the law laid down, it is clear that the delay has to be explained properly and the delay on account of negligence, default or inaction cannot be condoned. in the present case, as discussed above, no valid reason or the explanation has been given for condonation of the delay of 210 days. 13. in view of the above discussion, the application filed by the applicants for condonation of delay of 210 days in filing the present appeal, being without any merit, is dismissed. main case 14. as the application for condonation of delay has been dismissed, therefore, the appeal i.e. f.a. no.731 of 2012 also stands dismissed. no order as to costs. 15. the applicants had deposited an amount of rs.25,000/- with this commission at the time of filing of the appeal and another sum of rs.2,00,000/- vide receipt dated 12.09.2012 in compliance of the order dated august 28, 2012 passed by this commission. both these amounts with interest accrued thereon, if any, be remitted by the registry to the respondents/complainants in equal shares by way of a crossed cheque/demand draft after the expiry of 45 days under intimation to the learned district forum and to the applicants. 16. remaining amount as per the impugned order passed by the district forum shall be paid by the applicants to the respondents/ complainants within 45 days of the receipt of copy of the order. 17. the arguments in the application were heard on 17.01.2013 and the order was reserved. now the order be communicated to the parties.
Judgment:

Inderjit Kaushik, Presiding Member

1. Applicants/appellants- M/s Emaar MGF Land Limited and another (In short, “the applicants”) have filed this application for condonation of delay of 210 days in filing the present appeal.

2. It was submitted that the applicants have filed the appeal against the order dated 04.10.2011 passed by the District Forum, Mohali. The applicants were regularly appearing before the District Forum through their counsel and had filed their reply and evidence. Later on, it came to light that the said counsel did not appear before the District Forum on the date fixed for arguments. The applicants were under the bonafide belief that since the said counsel was taking care of the matter, he would duly intimate the status of the case. Around 20.04.2012, the applicants were surprised to receive a legal notice dated 14.04.2012 sent by M/s Chartered Law Associates on behalf of the respondents and the copy of the impugned order dated 04.10.2011 was enclosed along with the said notice. It was only after the receipt of above said notice that the applicants came to know that the District Forum has passed the order against them. No copy of the order was received from the District Forum by the applicants.

3. Immediately on receipt of the said order, the applicants tried to obtain the papers from the counsel, but no papers were traceable and the applicants immediately engaged a new counsel and instructed him to apply for certified copy of the case file and impugned order as well as to draft the accompanying appeal. Certified copies of the case papers and impugned order were obtained on 30.04.2012 and thereafter the appeal was drafted. If the limitation is considered from the date of order i.e. 04.10.2011, then there is delay of 210 days in filing the appeal, but if the same is counted from the date of knowledge of the impugned order, then there is delay of only 11 days in filing the appeal.

4. The above said delay is bonafide and was caused solely due to the fact that the impugned order was not received by the applicants and the counsel engaged did not appear before the District Forum, nor intimated the case status to the applicants. In case the delay is not condoned, then irreparable loss and prejudice will be caused to the applicants. It was prayed that the application may be allowed and the delay of 210 days (if calculated from the date of impugned order) or 11 days (if calculated from the date of knowledge) in filing the appeal may be condoned in the interest of justice.

5. In the reply filed on behalf of the respondents, it was submitted that the applicants were very much appearing before the District Forum and they were well aware about their case. The plea of the applicants is not believable and is based on conjectures and surmises. There is delay of 210 days in filing the appeal i.e. more than seven months. The applicants were continuously sleeping over the matter and failed to take further steps within the stipulated time. It is unbelievable that the applicants received a legal notice from the counsel for the respondents. It is also unbelievable that the District Forum decided the complaint without giving chance of hearing to the applicants. The applicants were appearing in the case through their counsel, but they themselves never bothered to inquire about the stage of the case. The applicants have failed to mention the names of both the earlier as well as new counsel. No date of applying for the certified copy of the case file and impugned order is mentioned in the application. It is nowhere prescribed under the law that the limitation will start from the date of knowledge of the impugned order. On merits, it was denied that there is delay of 11 days in filing the appeal. Other pleas of the application were also denied and it was prayed that the application may be dismissed.

6. We have heard the learned counsel for the parties and have gone through the record.

7. The explanation given by the applicants for condonation of delay is that the counsel, who represented them before the District Forum did not appear on the date of passing of the impugned order, nor intimated the decision of the complaint to the applicants and only after the receipt of legal notice dated 14.04.2012, accompanying by the impugned order dated 04.10.2011, sent on behalf of the respondents, the applicants came to know about the passing of the impugned order and thereafter copy of the impugned order along with case papers were obtained and the appeal was filed immediately.

8. This explanation given by the applicants is not tenable, because the applicants were duly represented by the counsel before the District Forum and were taking legal advice from their counsel before the District Forum throughout the pendency of the complaint and if the counsel has not appeared on the date of passing the impugned order, then also the applicants were supposed to know the fate of the complaint and they could make inquiry from the District Forum. Even otherwise, the name of the counsel, who represented the applicants before the District Forum, is not disclosed nor the name of new counsel engaged by them is mentioned in the application. Even no date is given as to when the new counsel was engaged. Affidavit of the previous counsel has also not been filed. The applicants remained silent for a long period and it was only after the receipt of legal notice date 14.04.2012 sent on behalf of the respondents that the applicants suddenly thought of filing the present appeal. The impugned order was passed on 04.10.2011 and as per pleading of the application, the legal notice was received by the applicants on 14.04.2012 and from 04.10.2011 to 14.04.2012, no explanation is forthcoming as to why the applicants have not inquired about the fate of the complaint from their counsel or from the District Forum. The application filed by the applicants is altogether silent to explain the delay in filing the appeal. The applicants have adopted a careless and casual approach, taking it granted that the delay of whatsoever period will be condoned, but the law of limitation has undergone a sea change and now it is settled that the delay can be condoned when it has been properly explained, but the delay due to casual approach cannot be condoned, at the asking of the applicant.

9. The Honble Supreme Court in case “Lanka Venkateswarlu (D) By Lrs. Vs State of A.P. and Others”, 2011 (2) RCR Civil-880 (SC), after considering the entire case law on the point of delay, in Para-26(relevant portion) observed as under:-

“Once a valuable right has accrued in favour of one party as a result of the failure of the other party to explain the delay by showing sufficient cause and its own conduct, it will be unreasonable to take away that right on the mere asking of the applicant, particularly when the delay is directly a result of negligence, default or inaction of that party. Justice must be done to both parties equally. Then alone the ends of justice can be achieved. If a party has been thoroughly negligent in implementing its rights and remedies, it will be equally unfair to deprive the other party of a valuable right that has accrued to it in law as a result of his acting vigilantly”.

10. In another case “Oriental Arora Chemical Industries Limited Vs Gujarat Industrial Development Corporation”, (2010) 5 SCC- 459, the Honble Supreme Court observed as follows:-

“We have considered the respective submissions. The law of limitation is founded on public policy. The legislature does not prescribe limitation with the object of destroying the rights of the parties but to ensure that they do not resort to dilatory tactics and seek remedy without delay. The idea is that every legal remedy must be kept alive for a period fixed by the legislature. To put it differently, the law of limitation prescribes a period within which legal remedy can be availed for redress of the legal injury. At the same time, the courts are bestowed with the power to condone the delay, if sufficient cause is shown for not availing the remedy within the stipulated time”.

11. Honble Punjab and Haryana High Court in case reported as “Union of India and Ors. Vs Hari Singh “, 2009(4) RCR (Civil)-654, declined to condone the delay for taking the matter in casual manner. In Para-7, it was observed as follows:-

“Even otherwise, no explanation is forthcoming from 15.09.2004 to 18.01.2005 for not filing the appeal. The pleadings in application itself show that the matter was being taken in most casual manner, without bothering for the law of limitation”.

12. In view of above discussion and the law laid down, it is clear that the delay has to be explained properly and the delay on account of negligence, default or inaction cannot be condoned. In the present case, as discussed above, no valid reason or the explanation has been given for condonation of the delay of 210 days.

13. In view of the above discussion, the application filed by the applicants for condonation of delay of 210 days in filing the present appeal, being without any merit, is dismissed. Main Case

14. As the application for condonation of delay has been dismissed, therefore, the appeal i.e. F.A. No.731 of 2012 also stands dismissed. No order as to costs.

15. The applicants had deposited an amount of Rs.25,000/- with this Commission at the time of filing of the appeal and another sum of Rs.2,00,000/- vide receipt dated 12.09.2012 in compliance of the order dated August 28, 2012 passed by this Commission. Both these amounts with interest accrued thereon, if any, be remitted by the registry to the respondents/complainants in equal shares by way of a crossed cheque/demand draft after the expiry of 45 days under intimation to the learned District Forum and to the applicants.

16. Remaining amount as per the impugned order passed by the District Forum shall be paid by the applicants to the respondents/ complainants within 45 days of the receipt of copy of the order.

17. The arguments in the application were heard on 17.01.2013 and the order was reserved. Now the order be communicated to the parties.