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A/112/2023

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remanded

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Judgment Summary — Ritu Bindal & Anr. v. Sant Parmanand Hospital & Anr. (12.04.2023)

Factual and Procedural Background

The present appeal was filed by the Appellant on 15.03.2023 challenging orders dated 27.09.2022 and 28.02.2023 passed by the Learned District Commission (North) in CC No. 606/2007 titled Ritu Bindal & Anr. v. Sant Parmanand Hospital & Ors. Along with the appeal, the Appellant filed an application (IA No.521/2023) seeking condonation of delay in filing the appeal.

After receipt of the District Commission's judgment, the Appellant inspected the file and, alleging incorrect inferences as to the date of filing of the complaint, filed a Review Application before the District Commission on 20.10.2022. That Review Application was listed first on 01.11.2022, notices were issued to respondents for 01.12.2022, respondents sought time to file reply, and after pleadings and hearings the review was finally heard on 10.02.2023 with the District Commission dismissing the review on 28.02.2023 on the ground that the District Commission had no power to review its own order under the Consumer Protection Act, 1986 (while noting the final judgment was passed after the enactment and implementation of the Consumer Protection Act, 2019).

The impugned judgment was pronounced on 27.09.2022. The appeal was filed on 15.03.2023, representing a delay of 163 days from the statutory thirty-day period prescribed under Section 15 of the Consumer Protection Act, 1986.

Legal Issues Presented

Whether the delay of 163 days in preferring the appeal filed on 15.03.2023 can be condoned under Section 15 of the Consumer Protection Act, 1986 by showing "sufficient cause".
Whether the period during which a Review Application was pending before the District Commission (20.10.2022 to 28.02.2023) can be excluded when computing the period of limitation for filing the appeal.
Whether the Appellant's conduct in filing a Review Application before the District Commission (despite the District Commission lacking power to review its own order) constitutes prosecution of the earlier proceeding with due diligence and in good faith so as to attract principles described in Zafar Khan (AIR 1985 SC 39) regarding exclusion under Section 14.

Arguments of the Parties

Appellant's Arguments

The Appellant's counsel submitted that because a Review Application was filed before the District Commission on 20.10.2022 and dismissed on 28.02.2023, the period during which the review application was pending should be excluded from the period of limitation for filing the appeal, since the Appellant was prosecuting proceedings before the District Commission "in good faith and with due diligence."

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Basawaraj and Ors. v. The Spl. Land Acquisition Officer, AIR 2014 SC 746	Definition and scope of "sufficient cause" — meaning "adequate" or "enough"; party must not have acted negligently, must show it was prevented by sufficient cause from prosecuting its case; discretion must be exercised judiciously.	The Commission relied on this exposition to frame the test for condonation: the Appellant must show absence of negligence or want of bona fides and provide a satisfactory explanation for the delay.
Anil Kumar Sharma v. United Indian Insurance Co. Ltd. & Ors., IV (2015) CPJ 453 (NC) (NCDRC)	Reinforces that delay must be satisfactorily explained; notes the object of expeditious adjudication under Consumer Protection Act and that highly belated appeals should not ordinarily be entertained.	The Commission cited it to emphasize that day-to-day delay must be explained and to underline the policy of promptness in consumer matters when considering condonation applications.
Lingeswaran Etc. v. Thirunagalingam, (SLP (C) Nos.2054‑2055/2022), judgment dated 25.02.2022	If delay is not properly explained and there are no merits, condonation should be refused; courts must not give a premium to parties guilty of delay or laches.	The Commission applied this reasoning to hold that where the delay was unexplained (or not satisfactorily explained) and there was lack of merit in the explanation, condonation should be refused.
Popat Bahiru Goverdhane v. Land Acquisition Officer, (2013) 10 SCC 765	Limitation must be applied with rigour where statute prescribes a special period; courts have no power to extend limitation on equitable grounds.	The Commission invoked this principle to stress the statutory prescription of limitation under the Consumer Protection Act and the limited scope for equitable extension.
Zafar Khan & Others v. Board of Revenue, U.P. & Others, AIR 1985 SC 39	To attract benefit of Section 14 (tolling), the party must show (i) prosecution of another civil proceeding with due diligence; (ii) the earlier and later proceedings relate to the same matter in issue; (iii) the former proceeding was prosecuted in good faith in a court which, due to defect of jurisdiction or similar cause, was unable to entertain it.	The Commission applied these criteria and found no material showing the Appellant prosecuted the review with due diligence and in good faith (since the District Commission lacked review power and the Appellant nevertheless pursued review). Therefore, the Appellant could not claim exclusion of the review period when computing limitation.

Court's Reasoning and Analysis

The Commission began by quoting Section 15 of the Consumer Protection Act, 1986 and noting that an appeal to the State Commission must be preferred within thirty days from the date of the order, subject to the State Commission entertaining an appeal after the period if satisfied of "sufficient cause".

The impugned judgment date (27.09.2022) and the filing date of the appeal (15.03.2023) meant a delay of 163 days. The Commission explained that to condone such delay the Appellant must show "sufficient cause" as interpreted by the Supreme Court in Basawaraj — i.e., the explanation must show absence of negligence or lack of bona fides and that the party was prevented by sufficient cause from prosecuting its case.

The Commission reviewed the Appellant's explanation: filing of a Review Application on 20.10.2022 which was heard and dismissed by the District Commission on 28.02.2023. The Appellant's counsel submitted that the period during which the review was pending should be excluded from limitation because the Appellant was prosecuting proceedings in good faith and with due diligence.

The Commission rejected that submission for the following reasons (as drawn from the opinion):

The Consumer Protection Act does not vest the District Commission (formerly District Forum) with power to review its own orders; the Appellant's counsel was aware of this lack of power.
Because the Appellant nevertheless filed and pursued the Review Application knowing that the District Commission lacked review/recall powers, the Commission found there was no material to show the Appellant prosecuted that remedy with due diligence and in good faith as required by Zafar Khan.
Accordingly, the Appellant could not claim that the review period be excluded when computing the limitation period for the appeal.
The Commission also invoked authorities (Anil Kumar Sharma, Lingeswaran, Popat Bahiru) to emphasise that unexplained or unjustified delay militates against condonation and that limitation in consumer matters must be applied strictly to preserve expeditious adjudication.

In sum, the Commission concluded there was "complete lack of bonafides and inaction" on the part of the Appellant, making this an inappropriate case to exercise discretion in favour of condoning the delay.

Holding and Implications

Holding: The application for condonation of delay filed by the Appellant is dismissed and, consequently, the appeal filed beyond the stipulated period is also dismissed. There shall be no orders as to costs.

Implications:

Direct effect on the parties: The Appellant's application for condonation (IA No.521/2023) and the appeal filed on 15.03.2023 have been dismissed as barred by limitation; the appeal will not be adjudicated on merits by the Commission.
No wider or new precedent is claimed to have been set by this decision; the Commission applied established principles from the precedents cited to reach its conclusion that the Appellant's conduct did not justify exclusion of the review period or condonation of delay.

Order signed by: Justice Sangita Dhingra Sehgal (President), Pinki (Member (Judicial)), and J.P. Agrawal (Member).

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RITU BINDAL AND ANOTHER v. SANT PARMANAND HOSPITAL

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RITU BINDAL & ANR. V. SANT PARMANAND HOSPITAL &

ANR.

12.04.2023

IA NO.590/2023 IN FA NO.112/2023

The present Appeal was filed by the Appellant on 15.03.2023 challenging the impugned order dated 27.09.2022 and 28.02.2023 passed by Ld. District Commission (North) in CC No. 606/2007 titled as Ritu Bindal & Anr. v. Sant Parmanand Hospital & Ors. Alongwith appeal, there is an application filed by the Appellant seeking condonation of delay in filing the present appeal.

Therefore, vide this order we shall dispose of the aforesaid application for condonation of delay in the above appeal. The application has been moved on behalf of the Appellant bearing IA No.521/2023 seeking condonation of delay in filing the appeal on the following ground:

1. …….

2. That immediately after the receipt of the said judgment passed by the Hon'ble District Commission, the Appellant first got the file of the Hon'ble North District Commission inspected and verified that the inference drawn by the Hon'ble Commission with respect to the date of filing of the present com plaint were apparently incorrect, filed Review Application before the Hon'ble Commission on 20.10.2022, which was listed for first hearing on 01.11.2022.

3. After the first hearing of the Review Application, the Hon'ble Commission being prima facie satisfied with the submissions of the

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Appellant ordered for notice of the Review Application to the Respondents for 01.12.2022.

4. That the Respondents after being served for the aforesaid date, appeared before the Hon'ble District Commission on 01.12.2022 and sought time for filing of the reply to the application.

5. That the finally after completion of the pleading of the review application, the said review application was fixed for arguments on 17.01.2023 and then for 10.02.2023 after hearing the arguments on 10.02.2023 for orders on 28.02.2023.

6. That the Hon'ble District Commission however dismissed the said review application on 28.02.2023 for the reasons that the District Commission has no power to review its own order under the Consumer Protection Act, 1986 for review though the final judgment was passed after the enactment and implementation of the Consumer Protection Act 2019.

To adjudicate this issue, we deem it appropriate to refer to Section 15 of the Consumer Protection Act, 1986 which provides as under:

"Any person aggrieved by an order made by the District Forum may prefer an appeal against such order to the State Commission within a period of thirty days from the date of the order

in such form and manner as may be prescribed. Provided that the State Commission may entertain an appeal after the expiry of the said period of thirty days if it is satisfied that there was sufficient cause for not filing it within that period:

Provided further that no appeal by a person, who is required to pay any amount in terms of an order of the District Forum, shall be entertained by the State Commission unless the appellant has deposited in

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the prescribed manner fifty per cent of the amount or rupees thirty-five thousand, whichever is less." Perusal of the aforesaid statutory position reflects that the appeal against an impugned order should be preferred within a period of thirty days from the date of such order, as the complaint filed by the Appellant was filed under the old Consumer Protection Act. On perusal of record before us, it is clear that the impugned judgment was pronounced on 27.09.2022 and the present appeal was filed on 15.03.2023 with a delay of 163 days.

In order to condone the delay, the Appellant has to satisfy this commission that there was sufficient cause for preferring the appeal after the stipulated period. The term 'sufficient cause' has been explained by the Apex Court in Basawaraj and Ors. vs. The Spl. Land Acquisition Officer reported at AIR 2014 SC 746. The relevant paras of the aforesaid judgment are reproduced as under:-

"9. Sufficient cause is the cause for which Defendant could not be blamed for his absence. The meaning of the word "sufficient" is "adequate" or

"enough", inasmuch as may be necessary to answer the purpose intended. Therefore, the word

"sufficient" embraces no more than that which provides a platitude, which when the act done suffices to accomplish the purpose intended in the facts and circumstances existing in a case, duly examined from the view point of a reasonable standard of a cautious man. In this context,

"sufficient cause" means that the party should not have acted in a negligent manner or there was a want of bona fide on its part in view of the facts and circumstances of a case or it cannot be alleged that the party has "not acted diligently" or "remained

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inactive". However, the facts and circumstances of each case must afford sufficient ground to enable the Court concerned to exercise discretion for the reason that whenever the Court exercises discretion, it has to be exercised judiciously. The applicant must satisfy the Court that he was prevented by any

"sufficient cause" from prosecuting his case, and unless a satisfactory explanation is furnished, the Court should not allow the application for condonation of delay. The court has to examine whether the mistake is bona fide or was merely a device to cover an ulterior purpose.

" We also deem it appropriate to refer to Anil Kumar Sharma vs. United Indian Insurance Co. Ltd. and Ors. reported at IV(2015)CPJ 453(NC), wherein the Hon'ble NCDRC held as under: -

"12. ………we are not satisfied with the cause shown to justify the delay of 590/601 days. Day to day delay has not been explained. Hon'ble Supreme Court in a recent judgment of v. New Okhla Industrial Development Authority, IV (2011) CPJ 63 (SC) has held that while deciding the application filed for condonation of delay, the Court has to keep in mind that 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 the appeals and revisions, which are highly belated are entertained

." We further deem it appropriate to refer to judgment dated 25.02.2022 passed in Special Leave to Appeal (C) Nos.2054-2055/2022 titled as Lingeswaran Etc. Versus Thirunagalingam, wherein the Hon'ble Supreme Court held as under: -

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"5. We are in complete agreement with the view taken by the High Court. Once it was found even by the learned trial Court that delay has not been properly explained and even there are no merits in the application for condonation of delay, thereafter, the matter should rest there and the condonation of delay application was required to be dismissed. The approach adopted by the learned trial Court that, even after finding that, in absence of any material evidence it cannot be said that the delay has been explained and that there are no merits in the application, still to condone the delay would be giving a premium to a person who fails to explain the delay and who is guilty of delay and laches. At this stage, the decision of this Court in the case of Popat Bahiru Goverdhane v. Land Acquisition Officer, reported in (2013) 10 SCC 765 is required to be referred to. In the said decision, it is observed and held that the

law of limitation may

harshly affect a particular party but it has to be applied with all its rigour when the statute so prescribes. The Court has no power to extend the period of limitation on equitable grounds. The statutory provision may cause hardship or inconvenience to a particular party but the Court has no choice but to enforce it giving full effect to the same.

From the aforesaid dicta of the Hon'ble Apex Court and the Hon'ble National Commission, it is clear that 'sufficient cause' means that the party should not have acted in a negligent manner or there was a want of bona fide on its part and applicant must satisfy the Court that he was prevented by any "sufficient cause" from prosecuting his case, and unless a satisfactory explanation is furnished, the Court should not allow the application for condonation of delay.

In the present case, the Appellant has explained the delay caused in filing this appeal, in para 2 to para 6 of the application for condonation of

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delay. On perusal of record before us, it is clear that the impugned judgment was pronounced on 27.09.2022. Thereafter, the Appellant preferred application on 20.10.2022 seeking review of the order dated 27.09.2022, which was subsequently dismissed by the Ld. District Commission vide its order dated 28.02.2023 and the present appeal was filed on 15.03.2023.

The Counsel for the Appellant, submitted that since he moved an application for review of the order dated 27.09.2022 before the District Commission on 20.10.2022 and the same was dismissed on 28.02.2023, that period is required to be excluded from the period of limitation, as he was prosecuting the proceedings, before the District Commission, in that application, in good faith and with due diligence.

The submission of the Counsel for the Appellant in this regard, does not appear to be correct. The Act does not vest the District Commission and the State Commission with the powers of review of its own order. The Counsel for the Appellant, was well aware of the fact that power of review, was not vested in the District Commission and despite that he moved an application for review/recall of the order dated 27.09.2022, vide which the complaint was dismissed.

In Zafar Khan and others Versus Board of Revenue, UP and others AIR 1985 Supreme Court 39, the Hon'ble Apex Court, observed that in order to attract the application of Section 14, the parties seeking its benefit, must satisfy the Court that (i) the party as the Plaintiff was prosecuting another civil proceeding, with due diligence (ii) that the earlier proceeding and the later proceeding relate to the same matter in issue and (iii) the former proceeding was being prosecuted in good faith

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in a Court which, from defect of jurisdiction or other cause of a like nature, is unable to entertain it. However, in the instant case, there is no material, available, on record, showing that the applicant/appellant was pursuing his remedy, by filing an application for recall of the order dated 22.11.2022, with due diligence and in good faith. On the other hand, in our considered opinion, the Appellant was pursuing that remedy, knowing fully well that the District Commission was not vested with the power to review or recall its order. Since the Appellant was not prosecuting the litigation, before the District Commission with due diligence and in good faith, he cannot seek exclusion of the period for counting the period of limitation. The submission of the Counsel for the applicant/appellant, in that regard, being without merit, must fail and the same is dismissed.

It is evident, from the well settled principle of law 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 upon the Appellant, to take immediate steps to ensure that the appeal was filed within the stipulated period, as envisaged under Section 15 of the Act. However, the Appellant knowing fully well that the District Commission was not vested with the power to review or recall its order filed a review application before the District Commission. It was, thus, a case of complete lack of bonafides and inaction, on the part of Appellant. This is, therefore, not a fit case, in which this Commission should exercise its discretion, in favour of the Appellant, in condoning the delay.

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Having regard to the statutory position discussed above and the facts of the case, the application filed by the Appellant seeking condonation of delay cannot be allowed and accordingly, the same is dismissed on the above grounds.

Consequently, the present appeal filed beyond the stipulated period shall also stands dismissed. However, in the facts of the case, there shall be no orders as to cost.

File be consigned to record room.

(Justice Sangita Dhingra Sehgal)

President

(Pinki)

Member (Judicial)

(J.P. Agrawal)

Member

RITU BINDAL AND ANOTHER v. SANT PARMANAND HOSPITAL

Judgment Summary — Ritu Bindal & Anr. v. Sant Parmanand Hospital & Anr. (12.04.2023)

Factual and Procedural Background

Legal Issues Presented

Arguments of the Parties

Appellant's Arguments

Table of Precedents Cited

Court's Reasoning and Analysis

Holding and Implications

RITU BINDAL AND ANOTHER v. SANT PARMANAND HOSPITAL

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