Bombay High Court

Prof Nelly Rodrigues vs The Branch Manager Iffco Tokio General ... on 5 October, 2024

2024:BHC-GOA:1703                               5 WP 898 OF 2023.ODT
2024:BHC-GOA:1703




                Esha

                      IN THE HIGH COURT OF BOMBAY AT GOA

                                  WRIT PETITION NO. 898 OF 2023

                    Prof (Mrs) Nelly Rodrigues, Retired
                    Lecturer, wife of Adv. Jose J. Rodrigues,
                    aged 63 years, married, Indian National,
                    Resident of House No. 100, Calata,
                    Majorda, P.C. 403 712, Salcete, Goa.                      ... Petitioner
                                              Versus

                     1.    The Branch Manager, IFFCO TOKIO
                           General Insurance Co. Ltd., A/2,
                           Reliance House, Isidorio Baptista
                           Road, Pajifond, Margao, Salcete,
                           Goa.

                     2.    The Authorised Officer, IFFCO
                           TOKIO General Insurance Co. Ltd.,
                           2nd Floor, AFL House, Lok Bharati
                           Complex, Marol Moroshi Road,
                           Andheri (E), Mumbai.                                ... Respondents
                                                        *****

                     Mr. Shambhu S. Kakodkar, Advocate for the Petitioner.

                     Mr. Tarun V. Patel, Advocate for the Respondents.

                                              CORAM:         BHARAT P. DESHPANDE, J.

                                              DATED:         5th OCTOBER 2024

                ORAL JUDGMENT:

1. Rule. Rule made returnable forthwith.

2. The matter is taken up for final disposal at the admission

stage itself with consent of the learned Counsel for the parties.

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3. Heard Mr. Kakodkar for the Petitioner and Mr. Patel for the

Respondents.

4. The legality or otherwise of the order passed by the National

Consumer Disputes Redressal Commission, New Delhi vide order

dated 20.09.2023, is questioned in the present Petition under

Article 227 of the Constitution of India.

5. Mr. Kakodkar appearing for the Petitioner would submit

that a Revision was filed by the Petitioner before the National

Commission along with the Application for condonation of delay.

A reply was filed on behalf of the Respondents and thereafter,

rejoinder was filed by the Petitioner. He submits that the National

Commission by the impugned order dismissed the delay

Application without considering the grounds mentioned therein

and the fact that the Petitioner was ready and willing to produce

necessary documents to support her contentions.

6. Mr. Kakodkar would submit that the Petitioner has a very

strong case on merits and the delay is only of 125 days, which was

sufficiently explained and could have been condoned.

7. Mr. Kakodkar submits that after the order was passed by the

State Commission in an Appeal, the Petitioner engaged an

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Advocate from Delhi for the purpose of filing the Revision. She

forwarded all the documents as well as the affidavit within 30

days, however, due to shifting of the office premises of the office of

the Advocate at Delhi, the papers were misplaced.

8. Mr. Kakodkar submits that during the same time, the

husband of the Petitioner was ill and therefore, she was unable to

contact her Advocate at Delhi. He submits that thereafter, the

papers were again forwarded and accordingly, the Revision was

filed with a delay of 125 days.

9. Mr. Kakodkar submits that the Tribunal on extraneous

grounds and without giving opportunity to the Petitioner to

produce the documents, rejected the Application, thereby refusing

to entertain the Revision.

10. Mr. Kakodkar submits that the order is passed by the

National Commission, which is the Tribunal and therefore, the

order passed by such Tribunal could be assailed under Article 227

of the Constitution of India before this Court as held in the case of

Universal Sompo General Insurance Co. Ltd. Vs. Suresh

Chand Jain & Another, 2023 SCC OnLine SC 877.

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11. Mr. Kakodkar while placing reliance in the case of Esha

Bhattacharjee Vs. Managing Committee of

Raghunathpur Nafar Academy & Others, (2013) 12 SCC

649, would submit that the delay which is of only 125 days could

have been liberally considered and condoned thereby allowing the

Petitioner to argue the matter on merits.

12. Mr. Kakodkar also placed reliance on the following

decisions:

(i) Rafiq & Another Vs. Munshilala & Another, AIR 1981 SC 1400;

(ii) Collector, Land Acquisition, Anantnag & Another Vs. Mst. Katiji & Others, AIR 1987 SC 1353;

(iii) GMG Engineering Industries & Others Vs. Issa Green Power Solution & Others, (2015) 15 SCC 659;

(iv) Bhivchandra Shankar More Vs. Balu Gangaram More & Others, (2019) 6 SCC 387;

(v) Sridevi Datla Vs. Union of India & Others, (2021) 5 SCC 321 and

(vi) M/s Sterling Agro Industries Ltd. Vs. Union of India & Others, AIR 2011 DELHI 174.

13. The rejoinder affidavit is also filed today refuting the

allegations made in the reply affidavit which is taken on record.

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14. Per contra Mr. Patel appearing for the Respondents would

submit that the grounds which are mentioned in the Application

filed before the National Commission are casually drafted and

cryptic. He submits that there are no calculations disclosed in the

Application about the number of days of delay, which is required

to be condoned and the place for mentioning such days is kept

blank. He submits that the ground which is mentioned in the

Application i.e. illness of the Petitioner, is not supported by any

document. Similarly, the specific details about the shifting of the

office of the Advocate at New Delhi are not disclosed.

15. Mr. Patel would submit that the rejoinder filed by the

Petitioner before the National Commission discloses separate

ground for condoning the delay i.e. the illness of the husband of

the Petitioner, which is not stated in the main Application. He

submits that the contention now raised that there was some error

in the Application for condonation of delay, cannot be presumed

as there is no such material placed before the Court.

16. Mr. Patel while placing reliance on the case of Esha

Bhattacharjee (supra) and more particularly, paragraph 22,

would submit that it is the duty of the Applicant to carefully draft

the Application disclosing sufficient grounds, enclosing necessary

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material to support it. It is the duty of the party to produce the

documents and it is not the duty of the Tribunal to call the party to

produce the documents.

17. Mr. Patel while placing reliance in the case of Estate

Officer, Haryana Urban Development Authority &

Another Vs. Gopi Chand Atreja, (2019) 4 SCC 612, would

submit that blaming the other Advocate for causing the delay is

not a good or sufficient ground.

18. The rival contentions fall for determination.

19. After the disposal of the Appeal filed before the Goa State

Consumer Disputes Redressal Commission, which was rejected on

26.03.2018, the Petitioner, who was the Respondent in the said

Appeal, preferred Revision under Section 12(b) of the Consumer

Protection Act, 1986. Such Revision was filed along with the

Application for condonation of delay.

20. The Application for condonation of delay along with the

Revision was presented somewhere in the month of November

2018. The Application for delay contains eight paragraphs. The

grounds for condoning the delay are found in paragraphs 4, 5, 6

and 7, which reads thus:

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"4. At the outset, the Petitioner submits an unconditional apology for the delay. It is submitted that the Petitioner during that time after the impugned order, was diagnosed with spinal stenosis and therefore, was undergoing treatment for the same in Goa. Therefore, the Petitioner was able to send instructions and engage a counsel in New Delhi only after he was treated for the same. The Petitioner is ready to submit the medical documents in support of the application, if, and when, the same will be required by the Hon'ble Commission.

5. Moreover, the Counsel engaged by the Petitioner was also undergoing a shift in his office premises and seemed to have misplaced the documents and affidavits required for filing of the instant petition.

6. It is submitted that the counsel so engaged was able to locate the said documents only some around 15 October, 2018 and thereafter, proceeded to draft the instant revision petition.

7. As a result of the above circumstances there has been a delay of ____ days for which the Petitioner seeks condonation"

21. Mr. Patel is justified in pointing out that the Accused did not

disclose the number of days of delay, which is required to be

considered in paragraph 7 as well as the prayer clause is blank

about the number of days which are required to be condoned. The

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above paragraph nos. 4, 5 and 6 in the Application for

condonation of delay shows two grounds, firstly, the illness of the

Petitioner and thereafter, the fault on the part of the Advocate at

Delhi, who misplaced the documents.

22. In the rejoinder filed before the Tribunal, the Petitioner

came up with another ground as stated in paragraph 7(b) wherein

she claimed that her husband was ill and therefore, there is a delay

in filing the Revision of about 93 days. The Petitioner then

disclosed that apart from 93 days, further delay of 30 days was due

to the fact that the file was misplaced and the Petitioner had to

forward another set of documents to her Advocate at Delhi.

23. The contention of Mr. Kakodkar that in the main

Application for condonation of delay, there was a typographical

error in paragraph 4 wherein the words "the husband of the

Petitioner" was not included, inadvertently. However, such

contention which is now raised. Such submission cannot be

accepted now, since in the rejoinder filed before the National

Commission, there is absolutely no such clarification or

explanation disclosed on affidavit. The rejoinder filed before the

National Commission in fact disclosed one more ground apart

from illness of the Petitioner.

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24. The National Commission while considering the grounds

raised in the Application, clearly observed that the other

submissions advanced before the Commission are totally different

and separate from the submissions that are found mentioned in

the Application.

25. A perusal of paragraphs 3 and 4 of the order of the National

Commission would go to show that a separate ground has been

raised while orally arguing the matter, which was not found

mentioned in the Application for condonation of delay.

26. Similarly, the Commission has observed the attitude of the

Petitioner wherein she stated that she is ready and willing to

produce the documents, if required by the Commission. At this

stage, it is necessary to note that the Petitioner approached the

Commission with a prayer for condonation of delay, disclosing

that she was ill. Thus, in order to substantiate such a ground, it

was the duty of the Petitioner to produce necessary documents

regarding her illness before the Commission so as to construe the

meaning of sufficient cause for the purpose condoning the delay as

provided under Section 5 of the Limitation Act. It is not the

Commission, which will be required to direct the Petitioner to

produce the documents. Such approach of the Petitioner is too

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casual while presuming that the delay would be condoned by

giving any reasons.

27. The Commission in its impugned order discussed the

decisions passed by the Apex Court as to what constitutes

sufficient cause.

28. While arguing the matter, Mr. Kakodkar failed to justify as

to what is sufficient cause which was placed before the

Commission. Similarly, he is unable to submit as to what is the

error or perverse finding in the impugned order so as to entertain

the Petition under Article 227 of the Constitution of India by this

Court.

29. The second ground which has been claimed is regarding

misplacement of documents in the office of the Advocate at Delhi.

Such aspect is also casually stated in the Application as found in

paragraphs 5 and 6. No specific details were disclosed. The

concerned Advocate even failed to file an affidavit to justify such

an aspect. If the documents were misplaced during shifting of his

office, it was incumbent upon the Advocate to justify it by filing an

affidavit as such fact was to the specific knowledge of said

Advocate only and not of Petitioner who is residing in Goa. Only

by making some averments in the Application for condonation of

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delay, the Petitioner/party cannot expect that it should be

accepted as a sufficient ground.

30. In the case of Esha Bhattacharjee (supra), the Apex

Court discussed in detail the parameters to be applied in an

Application for condonation of delay and curled out the broad

principles in paragraph no. 21. The said principles read as under:

21.1. (i) There should be a liberal, pragmatic, justice-oriented, non-pedantic approach while dealing with an application for condonation of delay, for the courts are not supposed to legalise injustice but are obliged to remove injustice.

21.2. (ii) The terms "sufficient cause" should be understood in their proper spirit, philosophy and purpose regard being had to the fact that these terms are basically elastic and are to be applied in proper perspective to the obtaining fact-situation.

21.3. (iii) Substantial justice being paramount and pivotal the technical considerations should not be given undue and uncalled for emphasis.

21.4. (iv) No presumption can be attached to deliberate causation of delay but, gross negligence on the part of the counsel or litigant is to be taken note of.

21.5. (v) Lack of bona fides imputable to a party seeking condonation of delay is a significant and relevant fact.

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21.6. (vi) It is to be kept in mind that adherence to strict proof should not affect public justice and cause public mischief because the courts are required to be vigilant so that in the ultimate eventuate there is no real failure of justice.

21.7. (vii) The concept of liberal approach has to encapsulate the conception of reasonableness and it cannot be allowed a totally unfettered free play.

21.8. (viii) There is a distinction between inordinate delay and a delay of short duration or few days, for to the former doctrine of prejudice is attracted whereas to the latter it may not be attracted. That apart, the first one warrants strict approach whereas the second calls for a liberal delineation.

21.9. (ix) The conduct, behaviour and attitude of a party relating to its inaction or negligence are relevant factors to be taken into consideration. It is so as the fundamental principle is that the courts are required to weigh the scale of balance of justice in respect of both parties and the said principle cannot be given a total go by in the name of liberal approach.

21.10. (x) If the explanation offered is concocted or the grounds urged in the application are fanciful, the courts should be vigilant not to expose the other side unnecessarily to face such a litigation.

21.11. (xi) It is to be borne in mind that no one gets away with fraud, misrepresentation or interpolation by taking recourse to the technicalities of law of limitation.

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21.12. (xii) The entire gamut of facts are to be carefully scrutinised and the approach should be based on the paradigm of judicial discretion which is founded on objective reasoning and not on individual perception.

21.13. (xiii) The State or a public body or an entity representing a collective cause should be given some acceptable latitude.

31. However, the Apex Court also found that taking the note of

the present date scenario, some more guidelines may also be

added to such principles. Such guidelines are found in paragraph

22.1 to 22.4, which read thus:

22.1. (a) An application for condonation of delay should be drafted with careful concern and not in a haphazard manner harbouring the notion that the courts are required to condone delay on the bedrock of the principle that adjudication of a lis on merits is seminal to justice dispensation system.

22.2. (b) An application for condonation of delay should not be dealt with in a routine manner on the base of individual philosophy which is basically subjective.

22.3. (c) Though no precise formula can be laid down regard being had to the concept of judicial discretion, yet a conscious effort for achieving consistency and collegiality of the adjudicatory system

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should be made as that is the ultimate institutional motto.

22.4. (d) The increasing tendency to perceive delay as a non-serious matter and, hence, lackadaisical propensity can be exhibited in a nonchalant manner requires to be curbed, of course, within legal parameters.

32. The principles/guidelines mentioned in paragraph 22.1 to

22.4 in the case of Esha Bhattacharjee (supra) are squarely

applicable to the matter in hand.

33. The learned Tribunal in its impugned order has observed

that the grounds mentioned in the Application for condonation of

delay cannot be construed as sufficient cause. It is immaterial

whether the delay is of few days or whether it is inordinate. The

concept of sufficient cause would apply to all such matters once

the period of limitation is over and a specific right accrues in

favour of the opposite party.

34. These observations of the National Commission cannot be

faulted with as the Application for delay was drafted in a very

casual manner and that too without any supporting documents.

The approach of the Petitioner that she is ready and willing to

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produce such documents as and when called upon by the

concerned Authority, cannot be construed as her willingness to

produce the documents. It is for the party to produce such

document along with the Application for delay so that the other

side is in a position to counter such documents. There was no

need to withheld such documents from the Tribunal and also from

the other side.

35. The jurisdiction of this Court under Article 227 of the

Constitution of India is though supervisory, it is certainly guided