Case: Maqbool Ahmad Ansari & Another Vs. Branch Manager, Bank of Baroda Niryat Bhavan, Uttar Pradesh & Another

Rekha Gupta, Presiding Member 1. The present first appeal has been filed against the judgment dated 31st March 2016 of the Uttar Pradesh State Consumer Disputes Redressal Commission, Lucknow (the State Commission) in FA no. 1751 of 2015. 2. The brief facts of the case as per the appellant/complainant are that the appellants firm is a proprietorship concern engaged in manufacturing and export of hand knitted woollen carpets. In December 2007 in response to a purchase order of overseas buyer, the appellant manufactured carpets and made arrangements for its shipment through commercial documents with invoice for US $ 1,10,596.55 or INR Rs.43,51,974.24 bill of lading and bill of exchange. All the said documents were sent through the banker of the firm, i.e., Bank of Baroda, Niryat Bhavan, Bhadohi where the appellants firm was having a current account and EEFC Account. It was alleged that the respondents bank sent the said documents to the consignee bank the Meridian Bank with the following instructions: * Deliver the documents against payment and advice the details of payment over swift/ FAX; * Recovery or charges from the drawee; * Collection of subject to ICC publication no. 522; * Do not deduct any amount from the proceeds; * Advice non-acceptance / non-payment over Fax/ Telex/ swift; and * Outside India charges to be borne by the drawee; 3. In the year 2008, on an enquiry it was found that the amount of proceeds had not been credited to the appellants account but the consignment had been released against the original bill of lading. For the said act, the respondent Bank had served legal notice on the Meridian Bank and Meridian Bank has instituted a Declaratory Judgment Act against the respondent as also the petitioners before the District Court at Arizona asking for repudiation of their claim against the importer and its Banker. It was further alleged that the settlement agreement was arrived at between Bank of Baroda and Meridian Bank effective from 30.04.2010 for US $36,000 or INR Rs.16.20 lakh against the claim of US $ 1,10,596.55 or INR Rs.43,43,650.14. Hence, it was alleged that the respondent had committed deficiency of service by arriving at a settlement despite the instruction of the appellant not to settle the matter for less than US $ 75,298., due to which the appellants firm had sustained a loss to the tune of Rs.27,23,650.14. Hence, the appellant filed the consumer complaint no. 53 of 2011 before the State Commission seeking award of Rs.68,44,929/- (including compensation for mental agony and litigation cost) with interest @ 12% per annum from the date of filing of complaint till final decision. 4. The State Commission on 31.03.2016 passed the following order: The case is taken up. Nobody is present for the complainant nor has any application for adjournment been moved on their behalf. The counsel for the complainant is also absent today. Nobody is present from defendants side as well. We have perused carefully all the documents available on record. From the perusal of the paper book it transpires that the complaint is lying pending since the year 2011. Nobody has been appearing for the complainants from last several dates. On 17.01.2014, while granting a last opportunity for evidence the case was fixed for 11.03.2014, 44 complainants evidence. Various states of fixed for complainants evidence after 11.03.2014 and on 01.02.2016 and 22.03.2016 and order was passed to the effect that the complaint may be dismissed in case nobody appears for the complainant. Nevertheless nobody has appeared for the complainant today nor has any evidence in support of the complaint been filed it appears that the complainant is no more interest in the conduct of the case. Under these circumstances the complaint is liable to be dismissed in default of the complainants and for lack of evidence. The complaint is dismissed in default of the complainants and for lack of evidence. 5. Hence, the present First Appeal. 6. On-going through the order sheets of the State Commission it is an admitted fact that after 17.11.2014 no one has appeared on behalf of the appellant leading to the dismissal of the appeal. In the present appeal, the reasons given for the non-appearance are as under: * Although the case was proceeding for quite some time and response was awaited from the respondents/ opposite parties but apparently, the counsel representing the appellants before the Commission below failed to take notice of listing of the case and could not pursue the same effectively; * It may also be submitted that the applicants could not be informed by their counsel as to the status of the case or that they are required to file evidence therein; * Unfortunately the case of the appellants remained unattended on several hearings and the same was ultimately dismissed for want of prosecution on their part on 31.03.206; * The appellants came to know of the fact dismissal of the case only in the month of July 2016 when the copy of order dated 31.03.2016 was served upon them. 7. It is seen from the same, no specific reasons have been given as to why the Counsel could not appear. There is also no mention as to why the appellants were not vigilant in following the progress of the case either directly or through their counsel. Further, the appellant has failed to mention the action taken against their counsel for his continued absence from the Court. 8. It is also seen that the FA has been filed with a delay of 140 days as per the Registry. The number of days of delay has not been mentioned in the application for condonation of delay. The reasons given in the application for the delay are as under: * Unfortunately the case of the appellants remained unattended on several hearing and the same was ultimately dismissed for want of prosecutionon their part on 31.03.2016; * The appellant came to know of the fact dismissal of the case only in the month of July 2016 when the copy of order dated 31.03.2016 was served upon them; * Having been served with a copy of order of the appellant no. 1 contacted his counsel immediately and instructed him to do the needful at the earliest to get the case restored and he was in turn, assured by the counsel that the requisite application seeking restoration of the case has already been filed by him. However, on enquiring repeatedly as to the status of restoration application and no satisfactory response being given by his counsel the appellant no.1 engaged the services of another counsel to look into the matter and he was shocked to learn that no application for restoration of the case has been filed; * It was also brought to the knowledge of the appellant that the State Commission having not been vested with the power to recall or set aside an order of dismissal he will have to file an appeal before the National Commission at New Delhi against the judgment and order dated 31.03.2016; * Thereafter the appellant no. 1 instructed his counsel to do the needful and draft the appeal to be filed before the National Commission and the same was accordingly prepared; * Unfortunately, the process of engaging advocates took some more time and the prescribed period of limitation lapsed in the meantime and the appeal got barred by limitation; * Under these circumstances the delay in filing the appeal is on account of reasons beyond the control of the appellants and not at all deliberate or intentional on their part. 9. The appellants have failed to explain the day to day delay of 140 days. It appears that even after the complaint was dismissed for non-prosecution and the manner in which the complainant had pursued the case in the State Commission, they continued to be casual and vigilant and failed to actively pursue the matter and ensure that the First Appeal was filed on time. The appellant has again failed to mention the action initiated against the counsel for his failure to file the appeal on time with limitation. 10. At the same time, it is also well settled that sufficient cause with regard to condonation of delay in each case, is a question of fact. 11. In the matter of Anshul Aggarwal vs. New Okhla Industrial Development Authority, IV (2011) CPJ 63 (SC), the Apex Court has highlighted the object of Consumer Protection Act particularly expeditious and in expensive remedy to the consumers. It 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. 12. In Balwant Singh Vs. Jagdish Singh & Ors., (Civil Appeal no. 1166 of 2006), decided by the Apex Court on 08.07.2010 it was held: The party should show that besides acting bonafide, 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]. 13. In Ram Lal and Ors. Vs. Rewa Coalfields Ltd., AIR 1962 Supreme Court 361, it has been observed; It 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. 14. Similarly in Oriental Insurance Co. Ltd., vs Kailash Devi and Ors. AIR 1994 Punjab and Haryana 45, it has been laid down that: There 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. 15. In R.B. Ramlingam Vs. R.B. Bhavaneshwari, 2009 (2) Scale 108, it has been observed: We 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. 16. We are of the view that the appellant has failed to give sufficient cause by giving cogent reasons and justification to condone the inordinate delay of 140 days. The appellant has also failed to explain their absence before the State Commission on a number of dates in spite of warning by the State Commission. 17. Accordingly, we find that there is no sufficient cause to condone the inordinate delay of 140 days in filing the present appeal. The application for condonation of delay is without any merit as well as having no legal basis and is not maintainable.

Decision reasoning: 0[ds]9. The appellants have failed to explain the day to day delay of 140 days. It appears that even after the complaint was dismissed forn and the manner in which the complainant had pursued the case in the State Commission, they continued to be casual and vigilant and failed to actively pursue the matter and ensure that the First Appeal was filed on time. The appellant has again failed to mention the action initiated against the counsel for his failure to file the appeal on time with limitation10. At the same time, it is also well settled that sufficient cause with regard to condonation of delay in each case, is a question of fact16. We are of the view that the appellant has failed to give sufficient cause by giving cogent reasons and justification to condone the inordinate delay of 140 days. The appellant has also failed to explain their absence before the State Commission on a number of dates in spite of warning by the State Commission17. Accordingly, we find that there is no sufficient cause to condone the inordinate delay of 140 days in filing the present appeal. The application for condonation of delay is without any merit as well as having no legal basis and is not maintainable.