Bombay High Court
Abegail Vanlalliani Pachuau vs Digambar M Meshram And Ors on 29 July, 2025
Author: N. J. Jamadar
Bench: N. J. Jamadar
2025:BHC-AS:31842
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Arun Sankpal
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO. 9790 OF 2025
Abegail Vanlalliani Pachuau,
Age-50 year, Occ-Business,
R/s. 601, Orva Apartment,
Road No.1, TPS 4,
Almeida Park, Bandra West,
Mumbai, Maharashtra - 400 050. ..Petitioner
Versus
1. Digambar M Meshram
2. Akshay D. Meshram
Both Residing at, Rio 605, Mount Everest,
A-wing, Bhakti Park, Wadala (East),
Mumbai - 400 037.
3. Obelix Hospitality Pvt Ltd
Throgh its Director, Mr. Aditya J. Dwivedi,
29, Chaitali, Western Express Society,
Bandra (E), Mumbai 400 051.
ARUN
RAMCHANDRA
SANKPAL
4. Aditya Jagdish Dwivedi,
Digitally signed
by ARUN
RAMCHANDRA
SANKPAL
R/s. At Mathuradas Mills Compound,
Date: 2025.07.29
19:40:00 +0530 M. Joshi Marg, Lower Parel,
Mumbai - 400 013. ...Respondents
Mr. Anand Patwardhan, i/b Shivamsinh Deshmukh, Tarun Shetty and
Aditya Sharma, for the Petitioner.
Ms. Supriya Patil, for Respondent Nos. 1 and 2.
CORAM: N. J. JAMADAR, J.
RESERVED ON : 18th JULY 2025
PRONOUNCED ON : 29th JULY 2025
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JUDGMENT:
1. Rule. Rule made returnable forthwith and with the consent of the
learned Counsel for the parties heard finally.
2. By this Petition, the Petitioner takes exception to an order dated
20th May 2025, passed by the National Consumer Disputes Redressal
Commission ("National Commission") whereby an Application preferred
by the Petitioner for condonation of delay in filing First Appeal against
the order dated 15th June 2018 in Complaint Case No. CC/17/771 of
2017 passed by the State Consumer Disputes Redressal Commission
("State Commission") came to be dismissed. Consequently, the First
Appeal also stood dismissed as bared by limitation.
3. The Petitioner and Aditya Dwivedi (R4-OP No.2) entered into an
agreement to form a Limited Liability partnership under the name and
style of World Gourmet LLP to run a restaurant "UZO". Aditya Dwivedi
was also a director of Obelix Hospitality Private Limited (OP No.1).
4. Respondent Nos. 1 and 2/Complainant Nos. 1 and 2 filed a
complaint under Section 17(1) of the Consumer Protection Act 1986
("the Act of 1986") alleging inter alia that Aditya Dwivedi (R4-OP2)
had approached the Complainants and induced them to invest a sum of
Rs. 80 Lakhs by making a promise that the Opponent Nos. 1 and 2 will
provide regular monthly income to the Complainants of Rs. 1 Lakh per
month, in the least. Believing such representations, the Complainants
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invested a total sum of Rs.80 Lakhs with the OP Nos. 1 and 2, and
World Gourmet LLP of which the Petitioner (OP3) was a partner. The
amounts were paid during the period 3rd July 2014 to 28th July 2015
through banking channels as well as in cash.
5. As the Petitioner and other Opponents did not file the Written
Statement, the Complainant case No. CC/17/771 of 2017 proceeded
without written version of the Opponents. By a judgment and order
dated 15th June 2018, the State Commission was persuaded to allow the
Complaint and direct the Opposite Party Nos. 1 to 3, to refund the
amount of Rs. 80 Lakhs along with interest @ 12% per annum from the
date of payment till realisation. In addition, the State Commission
awarded Rs. 50,000/- each, towards the compensation and costs of
litigation.
6. The Petitioner preferred First Appeal No. 729 of 2019. Since there
was delay in preferring the Appeal, the Petitioner took out an
Application for condonation of delay. The principal reason ascribed for
not preferring the Appeal within the stipulated period of limitation was
that the Petitioner (Appellant-OP3) was unaware of the judgment and
order dated 15th June 2018. The Petitioner had appointed an Advocate
to defend the Complaint. However, the said Advocate did not diligently
pursue the Complaint. The Petitioner was not appraised of the
developments in the said Complaint. Nor the Petitioner was informed
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about the order dated 15th June 2018 passed by the State Commission.
The Petitioner came to know about the said order when the Petitioner
received a call from Worli Police Station to the effect that a bailable
warrant was issued against her for the execution and enforcement of
the order passed by the State Commission. Thereafter, the Petitioner
gathered information, obtained the certified copy of the order passed by
the State Commission and, hence, there was delay in preferring the
Appeal.
7. The Respondent Nos. 1 and 3 resisted the prayer for condonation
of delay. It was inter alia contended that FA No. 671 of 2019 was filed
by Respondent Nos. 3 and 4 (OP- 3 and 4) along with Petitioner also.
The said Appeal was eventually dismissed by the National Commission
as the Appellants failed to satisfactory account for the huge delay of
about 220 days in filing the said Appeal. Even, the SLP (C) No. 9936 of
2022 preferred by the Respondent Nos. 3 and 4 against the said order
dated 24th January 2022, passed by the National Commission came to
be dismissed by the Supreme Court on 13 th July 2022. Therefore, the
Petitioner cannot be permitted to again pray for condonation of delay.
Respondent Nos. 1 and 2 also questioned the sufficiency of the cause
ascribed by the Petitioner for condition of delay.
8. It would be contextually relevant to note that by an order dated
26th April 2019, the National Commission granted ad-interim stay to the
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execution of the impugned judgment and award of the State
Commission, subject to the Petitioner depositing 50% of the amount
ordered to be paid by the State Commission. In compliance of the said
order, the Petitioner has deposited a sum of Rs. 62, 67,122/-.
9. By the impugned order the National Commission was persuaded
to reject the Application for condonation of delay observing inter alia
that the sole ground of inaction or negligence on the part of the
Advocate for the Petitioner cannot be said to be a sufficient cause to
condone the delay. The National Commission recorded that, the office
report indicated that the order was received by the Petitioner on 10 th
September 2018 and there was a delay of about 87 days in obtaining
certified copy of the order passed by the State Commission.
Condonation of such delay, in the view of the National Commission,
would defeat the purpose of the welfare and beneficial legislation which
has been enacted for the protection of the consumers and to provide
swift and cost effective remedies.
10. Being aggrieved, the Petitioner has invoked the writ jurisdiction.
11. Mr. Patwardhan, the learned Counsel for the Petitioner, would
submit that the National Commission has taken a very rigid and hyper-
technical view of the matter. Mr. Patwardhan laid emphasis on the fact
that the Petitioner had shown the bona fide by depositing 50% of the
amount ordered to be paid by the State Commission. This factor ought
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to have been given due weight. Mr. Patwardhan made a strenuous effort
to demonstrate that in the Complaint, the allegations of deficiency in
service, even if construed rather generously, are primarily against Mr.
Aditya Dwivedi. A passing reference is made in the Complaint that Mr.
Aditya Dwivedi is a partner of World Gourmet, and, therefore, the
Petitioner who is also a partner of the said LLP is jointly and severally
liable for the act of accepting the deposits. If the Petitioner have had
opportunity to participate in the Complaint proceeding before the State
Commission, the Petitioner would have successfully demonstrated that
no order could have been passed against the Petitioner.
12. Mr. Patwardhan would urge that the material on record would
show that the Petitioner had appointed Advocate, Hemant Kapoor; who,
despite filing the Vakalatnama, did not diligently defend the Petitioner.
In such circumstances, if the delay is not condoned and the Appeal
preferred by the Petitioner not heard on merits, the Petitioner would
suffer irretrievable prejudice, submitted Mr. Patwardhan.
13. In opposition to this Ms. Supriya Patil, the learned Counsel for the
Respondent Nos. 1 and 2, stoutly resisted the submissions canvassed on
behalf of the Petitioner. Ms. Patil laid special emphasis on the fact that
in Appeal No. 671 of 2019, the Petitioner was also shown as a party-
Appellant. There was non-compliance on the part of the Appellants, in
the said Appeal, to deposit 50% of the amount awarded by the State
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Commission. Therefore, the Application for condonation of delay along
with the said Appeal, came to be dismissed both for failure to ascribe a
sufficient cause for not filing the Appeal within the stipulated period
and non-compliance of the order to deposit the amount.
14. As the said order attained finality, with the dismissal of SLP (C)
No. 9936 of 2022, preferred thereagainst, Ms. Patil would urge, the
Petitioner cannot be permitted to urge the self-same grounds again.
15. As regards the cause ascribed by the Petitioner for condonation of
delay, Ms. Patil would urge there is not a shred of material in support of
the bald assertion that the Advocate appointed by the Petitioner did not
diligently defend the proceeding. Nothing prevented the Petitioner from
filing the Written Statement on 3rd October 2017, the last day stipulated
by the State Commission to file the Written Statement. The Petitioner
has resorted to the litigative strategy by putting the entire blame on the
Advocate, whilst the Petitioner's acts and conduct betrayed negligence
of the highest order, submitted Ms. Patil,
16. I have given anxious consideration to the rival submissions
canvassed across the bar. At the outset, it is necessary to note that the
Petitioner had been pursuing her remedies independently of Respondent
Nos. 3 and 4 (OP No. 1 and 2). The material on record indicates that
the Petitioner had filed FA No. 729 of 2019, in her individual capacity.
Whereas First Appeal No. 671 of 2019 was filed by the other opposite
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parties. This fact becomes evident from the order passed by the National
Commission on 16th July 2019, which records that a submission was
made on behalf of the Petitioner, in the said FA No. 671 of 2019, that
she had neither filed the said Appeal nor had she instructed any
Advocate to file the same on her behalf.
17. Thus, on the one hand, the Petitioner had filed an independent
Appeal, i.e., FA No. 729 of 2019, on the other hand, in Appeal No. 671
of 2019, filed by the other opposite parties, the Petitioner appeared and
made a statement that she had not filed the said Appeal. It is not the
case that after FA No. 671 of 2019 was dismissed by the National
Commission, the Petitioner filed another Appeal disowning the said
Appeal No. 671 of 2019. Therefore, the independent Appeal filed by the
Petitioner cannot be interdicted on the ground that the order passed in
FA No. 671 of 2019, dismissing the said Appeal on the ground of delay
and non-compliance of the deposit order, attained finality.
18. The National Commission was justified in appreciating the prayer
for condonation fo delay keeping in view the object of the Consumer
Protection Act. An indiscriminate condonation of delay in filing the
proceedings/Appeals before the Consumer Foras would defeat the
object of securing a swift and cost-effective remedy to the consumers.
The Consumer Protection Act thus stipulated a time-frame for the
processes leading to the disposal of the Complaint and for assailing the
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orders passed by the respective Foras. Viewed through this prism, a very
liberal exercise of discretion to condone the delay may frustrate the very
legislative intent.
19. In the case of Anshul Aggarwal Vs New Okhla Industrial
Development Authority,1 the Supreme Court cautioned that while
deciding the Application 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 the Supreme Court was to
entertain highly belated petitions filed against the orders of the
consumer foras. Holding this, the Supreme Court rejected an
Application to condone the delay of 233 days in filing the Petition
against the order passed by the National Commission.
20. A profitable reference can also be made to the Constitution Bench
judgment in the case of New India Assurance Co Ltd Vs Hilli
Multipurpose Cold Storage (P) Ltd,2 wherein the approach of the Cours
in the matter of delay in filing the proceeding under the Consumer
Protection Act was expounded as under:
"28. It is true that 'justice hurried is justice buried'. But
in the same breath it is also said that 'justice delayed is
justice denied'. The legislature has chosen the latter, and
1 (2011) 14 SCC 579.
2 (2020) 5 SCC 757.
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for a good reason. It goes with the objective sought to be
achieved by the Consumer Protection Act, which is to
provide speedy justice to the consumer. It is not that
sufficient time to file a response to the complaint has
been denied to the opposite party. It is just that
discretion of extension of time beyond 15 days (after the
30 days period) has been curtailed and consequences for
the same have been provided under Section 13(2) (b)
(ii) of the Consumer Protection Act. It may be that in
some cases the opposite party could face hardship
because of such provision, yet for achieving the object of
the Act, which is speedy and simple redressal of
consumer disputes, hardship which may be caused to a
party has to be ignored."
(emphasis supplied)
21. The justifiability of the order passed by the National Commission
is required to be appreciated keeping in view the aforesaid position in
law. The Court must be alive to the legislative object in prescribing the
period of limitation. However, at the same time, if a case for
condonation of delay is made out, a party cannot be non-suited on the
premise that the condonation of delay would defeat the object of the
enactment.
22. On the aforesaid touchstone, reverting the facts of the case, I am
conscious that, at this juncture, the Court is not expected to delve into
the merits of the claim in the Complaint. Nor the legality and propriety
of the order passed by the State Commission which was impugned
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before the National Commission in the Appeal, can be examined.
Nonetheless the broad case of the Complainant deserves to be taken
into account not for the purpose of assessing its merits but to ascertain
whether refusal to condone the delay would cause irretrievable
injustice.
23. The tenor of the Complaint is that Aditya Dwivedi (R4) induced
the Complainants to part with a sum of Rs.80 lakhs by representing
them that he would provide the service and return an amount of Rs.1
lakh per month to facilitate the Complainant to earn their regular
livelihood. The Petitioner came in the frame in her capacity as a partner
of World Gourmet LLP, to the account of which also the Complainants
were made to transfer various amounts. It is imperative to note that no
allegation of any representation emanating from the Petitioner has been
made. Nor is it alleged that the Petitioner induced the Complainants to
part with any amount.
24. Keeping this context in view, if the material on record is
appraised, it appears that the Petitioner had appointed Mr. Hemant
Kapoor, Advocate to represent the Petitioner. The order passed by the
State Commission on 11th October 2017 records that on 3rd October
2017, the last day given by the State Commission to file the written
version, Advocate Hemant Kapoor had filed Vaklatnama. However, he
did not care to file the written version on that day.
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25. It is true on the basis of the assertions in the Application and the
copies of the orders passed by the State Commission, an inexorable
inference may not be justifiable that the default on the part of Advocate
Hemant Kapoor was the sole factor which contributed to delay. A trend
is discernible that the delay is often sought to be attributed to the
Advocate, who represented the party claiming condonation of delay,
with a view to gain advantage in the proceeding by contending that a
party should not be made to suffer the consequences on account of the
default or negligence on the part of an Advocate. However, the fact
remains that the Petitioner had appointed an Advocate. He had filed
Vakalatnama. Moreover, on account of the alleged failure on the part of
the said Advocate, the Petitioner claimed to have lodged a Complaint
with the Bar Council for professional misconduct. Thus, it cannot be
said that the Petitioner had ascribed a wholly unsustainable ground for
the condonation of delay.
26. It is trite that an Application for condonation of delay cannot be
construed very rigidly. Some amount of delay or indolence is bound to
exist in every case. A factor which assumes critical salience is, the
element of bona fide. In the case at hand, as noted above, the Petitioner
had deposited 50% amount, i.e., Rs. 62, 67,122/- pursuant to the
interim order passed by the National Commission. The material on
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record does not show that there was deliberate negligence or inaction
on the part of the Petitioner.
27. These elements of bona fide and possibility of irretrievable
prejudice, in the light of the nature of the claim in the Complaint, if the
order passed by the State Commission is executed without the Petitioner
being provided an opportunity to assail the legality, propriety and
correctness thereof before the National Commission, persuade this
Court to hold that the delay ought to have been condoned by the
National Commission.
28. The conspectus of the aforesaid consideration is that the delay in
filing the Appeal No. 729 of 2019, deserves to be condoned. However,
Respondent Nos. 1 and 2/Complainants deserve to be adequately
compensated by awarding costs.
29. Hence the following order:
:ORDER:
(i) The Petition stands allowed.
(ii) The impugned order dismissing the Application
No.NC/IA/6745 of 2019 for condonation of delay and
consequently FA No.729 of 2019 stands quashed and set aside.
(iii) The Application for condonation of delay NC/IA/6745 of
2019 stands allowed.
(iv) The delay in preferring the Appeal stands condoned.
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(v) The Petitioner shall pay costs of Rs. 1 lakh each to
Respondent Nos. 1 and 2 within a period of three weeks from
today. Payment of costs shall be condition precedent.
(vi) In the event costs is paid, the FA No. 729 of 2019 would
stand restored to the file of National Commission.
(vii) The National Commission is requested to decide the Appeal
on its own merits and in accordance with law, without being
influenced by any of the observations made hereinabove, which
were confined to determine the justifiability of the prayer for
condition of delay only.
Rule is made absolute to the aforesaid extent.
[N. J. JAMADAR, J.]
