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Laximibai Ranganath Fondekar and Others Vs. M/S. Ashwini Builders and Engineers and Others - Court Judgment

LegalCrystal Citation
CourtGoa State Consumer Disputes Redressal Commission SCDRC Panaji
Decided On
Case NumberC.D. Misc. Appln. No. MA(CD) 36 of 2013
Judge
AppellantLaximibai Ranganath Fondekar and Others
RespondentM/S. Ashwini Builders and Engineers and Others
Excerpt:
.....it is hereby ordered that the present  application for condonation of delay dated 14.12.2013 filed by the appellants  herein, is hereby dismissed and consequently the appeal presented before this commission also stands disposed off as dismissed.  the appellants are hereby directed to pay to the respondent nos. 1 and 2 the costs of rs. 5,000/- (rupees five thousand only) within 30 days from the date of this order.
Judgment:

Jagdish Prabhudesai, Member:

1. By this Order we shall dispose of the present application for condonation of delay filed by the Appellants herein at the time of presenting the Appeal  before this Commission against the Orders dated 20.8.2013 and 4.7.2013 passed by the Consumer Disputes Redressal Forum, South Goa, at Margao in Complaint No. 9/2000.

2. At the outset, we make it clear that we are only concerned about the maintainability of the aforesaid application for condonation of delay and hence we refrain from passing any comments on merits of the case.

3. It is necessary to state some brief facts as under :

I. It is stated in the application that the Appellants had filed a formal application dated 25.10.2012 in the Complaint No. 9/2000 before the Ld. District Forum at South Goa for bringing legal heirs of the deceased Complainant on record while the Complainant expired on 12.9.2010.  The said application was dismissed by the Learned Forum and the said complaint was also dismissed on 20.8.2013 on the ground that the complaint abates for non-bringing legal heirs of the deceased Complainant.

II. It is also alleged that the Complainants Advocate did not inform the Appellants in the matter of the steps required to be taken for the purpose of filing the said application.  The Appellants had given the names of the legal heirs of the Appellants alongwith the original Death Certificate but due to lack of proper advice the Appellants failed to take necessary steps to make formal application within the time frame.

III. It is further alleged that the Advocate then appearing for the Appellants did not inform about passing of the Order dismissing the application for bringing legal heirs as well as the Order dismissing the complaint on 20.8.2013.  The contents of para No. 8 to 18 of the application for condonation of delay, are self-explanatory as explaining  the facts and circumstances under which the Appeal could not be filed within the prescribed time limit.

IV. The Appellants state that there is a delay of  about 111 days i.e. three months and 21 days in filing the present Appeal and in view of the aforesaid circumstances, the Appellants have prayed that the aforesaid delay in filing the present Appeal be condoned in the interest of justice and the Appeal be taken on record.

4. The Respondents Nos. 1 and 2 have opposed vehemently the present application vide reply dated 6.2.2014 on following amongst other grounds :

I. That the application is misconceived, untenable at law and therefore deserves to be dismissed in limine. II. That the application does not reflect the signature of the Appellants and that no sufficient cause is spelt out for condoning the delay.

III. That the Appeal  ought to have been filed within the prescribed time limit of 30 days and considering the fact that the  Learned Lower Forum has passed the Order on 4.7.2013, then there is a delay of 131 days in filing the Appeal.

IV. That the Appellants are without any just and probable cause, blaming their previous Advocate on record for the delay caused in bringing the legal heirs on record and have failed to own up any responsibility in diligently pursuing the matter, on themselves.

V. That although the Complainant expired on 12.9.2010 and the original Death Certificate was submitted on 6.12.2010 by one of the Appellants, however, most dates were taken by the Appellants to bring the legal heirs on record as required by law.  No justification is given by the Appellants for failure to take steps for a period of almost two years between 6.2.2010 till 25.10.2005.

VI. Since no sufficient ground is made out by the Appellants, the Respondent No. 1 and 2 prayed that the application for condonation be dismissed with costs.

5. We have perused the documents as well as the original file of Lower Forum in Complaint No. 9/2000.  We have heard oral arguments advanced by Learned Counsels for both the parties.

6. At the outset, it is observed that condoning the delay in filing the Appeal within the prescribed time limit under Consumer Protection Act, 1986, is a discretionary relief and not as a matter of right.  However, it has been held time and again by Higher Courts that such a discretion shall be exercised judiciously and cautiously as the facts and circumstances of each case may demand.

7. In our considered opinion, the Appellants herein were duty bound to explain each days delay by narrating the circumstances in cogent and convincing manner so as to hold that the same constitutes sufficient cause in condoning the alleged delay.  The Appellants have failed to do so.

8. It is observed that whereas the application under consideration mentions that the delay sought to be condoned is 111 days, the same has been objected by the Respondents.  At the time of arguments, Ld. Advocate for the Appellants placed before this Commission the document captioned as the acknowledgement receipt  comprising certified copy issued by Asst. Registrar of District Forum South Goa dated 17.12.2013 inter alia showing the date of delivery of the Order to be 17.12.2013. The Learned Counsel for the Appellants, then, submitted that in view of the said receipt/acknowledgement, the delay caused in filing the present Appeal is much lesser period than the alleged delay of 111 days as mentioned in the application for condonation of delay.

9. It is however observed that the Appellants have failed to take appropriate steps such as moving fresh application alongwith the aforesaid certified copy of Order dated 17.12.2013 inter alia making appropriate amends to the present application in terms of actual alleged delay in filing the Appeal.

10. Be it as it may, we find that the Lower Court record in the original complaint as well as Roznamas recorded from time to time do indicate that the Appellants herein have to only blame themselves for not taking appropriate steps in bringing the legal heirs on record within the time limit as prescribed under the Consumer Protection Act, 1986.  We agree with the contention of the Respondent No. 1 that although the Complainant expired on 12.9.2010 and the original Death Certificate was submitted on 6.12.2010 by one of the Appellants, however, most dates were taken by the Appellants to bring the legal heirs on record as required by law.

11. We are also in agreement with the contention of the Respondent No. 1 and 2 that the Appellants herein have failed to make genuine and honest efforts to contact the lawyer in order to file appropriate application for a period between 6.2.2010 till 25.10.2012.

12. It is noticed that the present application for condonation is filed on 14.12.2013. The Respondents No. 1 and 2 have  filed their reply on 6.2.2014 inter alia raising various objections.  As if, to cure the defects and to cover up the case, the  Advocate Shri Gautam Fadte previously appearing for the Appellants before the Learned Forum, has filed his Affidavit dated 19.2.2014, thereby leaving room for a doubt, as to why the said Affidavit could not be filed alongwith the present application for condonation of delay.  In our opinion, it would be unsafe, unfair and improper to attach any due credibility  to this Affidavit filed by Shri Gautam Fadte, which Affidavit appears to be an utter afterthought and an attempt, in vain, to lend support to the contents of earlier  moved application for condonation.

13. We are also of the considered opinion that though Medical Certificate dated 13.12.2013 issued by Dr. Rajendra Hegde, Mental Health Consultant, Margao, certifying that Smt. Laximibai Ranganath Fondekar, was under his treatment from 13.12.2013 as she was suffering from Adjustment Reaction due to stress, we cannot attach due credibility to the said Certificate, as it appears that the Appellants were thereby trying to cover up her case only for finding an excuse for the delay caused in filing the Appeal.  Though it is alleged by the Appellant that there were two weddings in the family in the month of December, 2013 and thereafter she fell sick, no cogent and convincing proof in support of the said contention, has come forth in the present proceedings, in as much as we  fail to understand as to why anyone amongst the rest of other heirs could not take appropriate steps at appropriate time in the matter of  moving application to bring legal heirs on record within the time limit and thereafter contacting the same or any other lawyer at the earliest possible opportunity  so as to ensure that no further time is wasted in filing the Appeal.

14. We are unable to accept the contention of the Appellants that they could not take proper steps in filing the present Appeal as they were not properly advised by the lawyer.  The parties to the litigation cannot afford endless patience in looking for Advocates after Advocates till such time when the Appeal becomes time-barred.  In our opinion, the Appellants have failed to show sufficient grounds for condoning the alleged delay in filing the present Appeal.

15. In holding so, we stand fortified by the principles and guidelines as laid down by the  higher Courts in below mentioned cases :

"i. In Northern Power Distribution Co. Ltd.  V/s Alwala Mangamma and Ors.  2014(1) CPR 144 (NC) Honble National Commission held as under :

œCondonation of delay is an exception and should not be used as an anticipated benefit. As there is inordinate delay of 70 days in filing the Appeal, this delay cannot be condoned in the absence of  reasonable explanation constituting sufficient cause.?

ii. In R.B. Ramlingam V/s R.B. Bhavaneshwari 2013(4) CPR 785 (SC), our Apex Court held as under :

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?

iii. In Oriental Aroma Chemical Industries Ltd. V/s Gujarat Industrial Development Corporation 2013(4)  CPR 615 (SC),  our Supreme Court held as under :

œWe have considered the respective submissions.  The Law of limitation is founded on public policy.  The legislators have not prescribed 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. 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.?

iv. In Chandan Singh V/s National Insurance Company Ltd., 2014(1) CPR 549 (NC), Honble National Commission held that Petitioner has failed to show sufficient cause for condoning the delay of 139 days in filing of Revision Petition and has also failed to give day to day explanation for the said delay and hence application for condonation of delay was without any merit as well as having no legal basis and is not maintainable, hence dismissed.

16. In conclusion, we do apply the ratio of the aforesaid decisions of Honble Supreme Court and National Commission to the facts and circumstances of the present case and do hereby hold that the present application for condonation of delay filed by the Appellants herein is devoid of any substance as there is no sufficient cause shown by the Appellants herein to the satisfaction of this Commission and hence the same  deserves to be dismissed with costs.

17. Accordingly, we therefore  pass the following :

                                                                             ORDER

It is hereby ordered that the present  application for condonation of delay dated 14.12.2013 filed by the Appellants  herein, is hereby dismissed and consequently the Appeal presented before this Commission also stands disposed off as dismissed.  The Appellants are hereby directed to pay to the Respondent Nos. 1 and 2 the costs of Rs. 5,000/- (Rupees Five Thousand only) within 30 days from the date of this Order.


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