PER: HON’BLE MS. PINKI, MEMBER (JUDICIAL)

1. The present appeal has been filed on 04.09.2023 challenging the impugned order dated 06.07.2023 vide which Complaint Case No.44/2016 was passed by the District Consumer Disputes Redressal Commission-I (North), Tiz Hazari Courts Complex, Tiz Hazari, Delhi-110054.

2. This order will dispose off an application bearing IA No.2081/2023 seeking condonation of delay in filing the appeal, filed along with the appeal. Affidavit of Ms. Shweta Pokhriyal, Assistant Vice President (Legal) and Authorized Representative of the appellant has been filed along with this application.

3. Record has been carefully and thoroughly perused.

4. The application has been moved under Section 5 of the Limitation Act read with Section 21(b) of the Consumer Protection Act, 1986. However, it is being considered under Section 15 of the Consumer Protection Act, 1986 as it is arising out of Complaint Case No.44/2016.

5. The bare perusal of the application reflects that it has been preferred under Section 5 of the Limitation Act read with Section 21(b) of the Consumer Protection Act, 1986. However, the entire proceedings of the present case took place according to the Old Act. Hence, before delving into the merits of the present application, it is imperative to ascertain whether the present application bearing IA-2081/2023 filed along with the appeal on 04.09.2023 is maintainable under the New Act/Old Act.

6. The repeal of a law shall not affect the previous operation of any enactment i.e. the proceedings under Consumer Protection Act, 1986 shall continue for cases which had been filed prior to the implementation of Consumer Protection Act, 2019 on 20.07.2020.

The same can be gauged through the repeal and saving section (Section 107) of the Consumer Protection Act, 2019 which has been reproduced below:

“107. (1) The Consumer Protection Act, 1986 is hereby repealed.

(2) Notwithstanding such repeal, anything done or any action taken or purported to have been done or taken under the Act hereby repealed shall, in so far as it is not inconsistent with the provisions of this Act, be deemed to have been done or taken under the corresponding provisions of this Act.

(3) The mention of particular matters in sub-section (2) shall not be held to prejudice or affect the general application of section 6 of the General Clauses Act, 1897 with regard to the effect of repeal.”

7. We may also take the assistance of Section 6 (b) of the General Clauses Act, 1897 to further this view. Section 6 (b) of the General Clauses Act, 1897 has been reproduced below:

“6 Effect of repeal. : Where this Act, or any 1 [Central Act] or Regulation made after the commencement of this Act, repeals any enactment hitherto made or hereafter to be made, then, unless a different intention appears, the repeal shall not

(a) revive anything not in force or existing at the time at which the repeal takes effect; or

(b) affect the previous operation of any enactment so repealed or anything duly done or suffered thereunder”

8. Moreover, unless the legislature explicitly provides that the amendment is retrospective in nature, it will be considered prospective. The aforesaid view has been taken by the Apex Court in the case of CIT v. Vatika Township (P) Ltd. reported in (2015) 1 SCC 1 [LQ/SC/2014/970] wherein the Court discussed the proviso to Section 113 of the Income Tax Act, 1961 and held that it was prospective and not retrospective. While deciding the case, the Constitution Bench laid down certain general principles which have been reproduced as under:

“28. Of the various rules guiding how a legislation has to be interpreted, one established rule is that unless a contrary intention appears, a legislation is presumed not to be intended to have a retrospective operation. The idea behind the rule is that a current law should govern current activities. Law passed today cannot apply to the events of the past. If we do something today, we do it keeping in view the law of today and in force and not tomorrow's backward adjustment of it. Our belief in the nature of the law is founded on the bedrock that every human being is entitled to arrange his affairs by relying on the existing law and should not find that his plans have been retrospectively upset. This principle of law is known as lex prospicit non respicit: law looks forward not backward. As was observed in Phillips v. Eyre [Phillips v. Eyre, (1870) LR 6 QB 1] , a retrospective legislation is contrary to the general principle that legislation by which the conduct of mankind is to be regulated when introduced for the first time to deal with future acts ought not to change the character of past transactions carried on upon the faith of the then existing law.

29. The obvious basis of the principle against retrospectivity is the principle of “fairness”, which must be the basis of every legal rule as was observed in L'OfficeCherifien des Phosphates v. Yamashita-Shinnihon Steamship Co. Ltd. [L'OfficeCherifien des Phosphates v. Yamashita-Shinnihon Steamship Co. Ltd., (1994) 1 AC 486 : (1994) 2 WLR 39 :

(1994) 1 All ER 20 (HL)] Thus, legislations which modified accrued rights or which impose obligations or impose new duties or attach a new disability have to be treated as prospective unless the legislative intent is clearly to give the enactment a retrospective effect; unless the legislation is for purpose of supplying an obvious omission in a former legislation or to explain a former legislation. We need not note the cornucopia of case law available on the subject because aforesaid legal position clearly emerges from the various decisions and this legal position was conceded by the counsel for the parties. In any case, we shall refer to few judgments containing this dicta, a little later.”

(emphasis in original)

9. Similarly, the Apex Court in Hitendra Vishnu Thakur vs State of Maharashtra reported in 1994 (4) SCC 602, [LQ/SC/1994/591] the court has culled out the ambit and scope of an amending Act and its retrospective operation and has held the following:

“26. The Designated Court has held that the amendment would operate retrospectively and would apply to the pending cases in which investigation was not complete on the date on which the Amendment Act came into force and the challan had not till then been filed in the court. From the law settled by this Court in various cases the illustrative though not exhaustive principles which emerge with regard to the ambit and scope of an Amending Act and its retrospective operation may be culled out as follows:

(i) A statute which affects substantive rights is presumed to be prospective in operation unless made retrospective, either expressly or by necessary intendment, whereas a statute which merely affects procedure, unless such a construction is textually impossible, is presumed to be retrospective in its application, should not be given an extended meaning and should be strictly confined to its clearly defined limits.

(ii) Law relating to forum and limitation is procedural in nature, whereas law relating to right of action and right of appeal even though remedial is substantive in nature.

(iii) Every litigant has a vested right in substantive law but no such right exists in procedural law.

(iv) A procedural statute should not generally speaking be applied retrospectively where the result would be to create new disabilities or obligations or to impose new duties in respect of transactions already accomplished.

(v) A statute which not only changes the procedure but also creates new rights and liabilities shall be construed to be prospective in operation, unless otherwise provided, either expressly or by necessary implication."

10. Taking into account the aforesaid discussion, we conclude that the Consumer Protection Act, 2019 is prospective in nature. Thus, the cases pending or adjudicated and rights/obligations created before the coming into effect of the Consumer Protection Act, 2019 will continue to be adjudicated under the Old Act i.e. Consumer Protection Act, 1986. Hence, the applicants cannot resort to the provisions as inculcated in the New Act so far as the present case is concerned this case will be governed by the provisions of the Old Act.

11. Application for condonation of delay has been filed on various grounds. Para No. 2 to 11 of the application read as under:

“2. That the Appellant/ Applicant waited to receive the free copy of the certified copy of the Impugned Order from the registry of the Hon'ble District Commission. After waiting for the free copy of the certified copy of the Impugned Order the Petitioner applied for a copy after paying the requisite fees. The certified copy of the Impugned Order was prepared and delivered to the Local Counsel of the Petitioner Company on 13.07.2023. That after the pronouncement of the Order dated 06.07.2023 the Appellant applied for the Certified Copy of the Order on 13.07.2023 since the free copy was not received by it. A certified copy of the Order was received by the Appellant on the same day i.e. 13.07.2023.

3. That the facts and circumstances of this matter have been dealt with in great detail in the accompanying First Appeal and the same is not reiterated herein for the sake of brevity and the Appellant craves leave of this Hon'ble Commission to refer to and rely upon the contents of the First Appeal for the purposes of this application.

4) That after receiving the Order the Appellant sent the matter to its legal department for its opinion and once the instructions for filing an Appeal were received it assigned the matter to one Advocate Ram (D/11939/2021) for filing an Appeal before this Hon'ble Commission.

5) That Delhi was inflicted by severe floods during the months of July and August, thereby severely impacting daily life of the residents of Delhi. The Advocate was also one of the affected people in this natural calamity.

6) That it is submitted that the Advocate Ram (D/11939/2021), to whom the matter was initially assigned, operates out of his residence cum office at E-2/8, Shivaji Colony, 5th Pusta Sonia Vihar, Delhi, 110094. This address is located at one of the most affected areas by the floods that inflicted in month of July and August 2023.

7) That Owing to the said floods, all the documents kept at the office/residence of the Advocate were seeped by water and rendered illegible and unusable.

8) That it is also summited that since it is an office cum residence space the present Advocate had to face challenges not only at work but also on personal front as his house was completely flooded. In this difficult time the Advocate was rendered unable to continue working on the said case. Accordingly he requested the company to engage another Advocate.

9) That owing to above mentioned facts and circumstances, the company had to search for a new Advocate, and the said Advocate was expeditiously engaged. However there had already been a considerable delay in the said matter.

10) That thereafter the present appeal was drafted right away however brother of the advocate for the Appellant was suddenly admitted on 20/08/2023 at Fortis Hospital with complaints of acute pain in the right side of the body. He was immediately admitted to the hospital the same night and was finally discharged 30/08/2023. As a result of his brother's illness, the advocate for the Appellant could not ensure in filling the First Appeal. The medical report and the discharge summary is attached as Annexure-1.

11) That due to the above-mentioned facts and circumstances, being an event covered under the doctrine of force majeure which were beyond the control of Appellant herein as well as their counsel, the present appeal is being filed with a delay of approximately 28 days.”

12. 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 the prescribed manner fifty per cent. of the amount or rupees twenty-five thousand, whichever is less]”

13. A perusal of the aforesaid statutory position reflects that the appeal against an order should be preferred within a period of thirty days from the date of impugned judgment. On perusal of record before us, it is clear that the impugned order was pronounced on 06.07.2023 and the present appeal was filed on 04.09.2023 i.e. after a delay of 30 days.

14. 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 in AIR 2014 SC 746 [LQ/SC/2013/914] . 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 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.”

15. We also deem it appropriate to refer to Anil Kumar Sharma vs. United Indian Insurance Co. Ltd. and Ors. Reported in IV(2015)CPJ453(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 Anshul Aggarwal 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.”

16. We further deem it appropriate to refer to Lingeswaran Etc. Versus Thirunagalingam in Special Leave to Appeal (C) Nos.2054- 2055/2022 decided on 25.02.2022, wherein the Hon’ble Supreme Court held as under: -

“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 PopatBahiruGoverdhane v. Land Acquisition Officer, reported in (2013) 10 SCC 765 [LQ/SC/2013/916] 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.

17. 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 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.

18. Reverting to the material available before us, we find that the impugned order was passed on 06.07.2023 and the period of limitation starts from the date of order which had expired on 05.08.2023. However, the reason stated for the delay that since the free copy was not delivered to appellant, the appellants applied for certified copy on 13.07.2023 and the same was received by the appellants on the same day i.e. 13.07.2023; upon receipt of the same, the matter was sent to its legal department for its opinion and assigned to Advocate Ram (Enrl. D/11939/2021) who operates out of his residence cum office at E-2/8, Shivaji Colony, 5th Pusta Sonia Vihar, Delhi-110094 which is located at one of the most affected areas by the flood that inflicted in month of July and August 2023; due to said flood in Delhi, all the documents kept at the office/residence of the advocate were seeped by water and rendered illegible and unusable; owing to these circumstances, a new advocate was expeditiously engaged; thereafter draft was prepared, however, brother of newly engaged advocate was suddenly admitted on 20.08.2023 at Fortis Hospital with acute pain in the right side of his body and was discharged on 30.08.2023 and due to mentioned facts, the present appeal was filed with a delay of approximately 28 days.

19. However, the plea taken by the appellants that due to severe flood in Delhi in the month of July and August, the office of previous counsel namely Mr. Ram (Enrollment No. D/11939/2021) situated at E-2/8, Shivaji Colony, 5th Pusta Sonia Vihar, Delhi-110094 was severely affected resulting the documents kept at the office of the said counsel were seeped by water and rendered illegible and unusable, cannot help the appellants to condone the delay as there was no flood in the month of August 2023 in any part of Delhi.

20. Further, no medical document/report has been filed by the appellant in support of their averments made in para 10 of the application. Furthermore, there is no Annexure-1 on record regarding the medical report and discharge summary of the brother of newly engaged advocate. A bare perusal of record shows that Annexure A/1 is certified copy of impugned order at page 29 to 32.

21. It has been submitted in para 2 of the application by the appellants that certified copy of the impugned order was prepared and delivered to the local counsel of the appellants on 13.07.2023. Even if we consider that the appellant has received the certified copy of the impugned order on 13.07.2023, in this circumstance also, the appellant was expected to file the appeal within the limitation period i.e. by 12.08.2023. Thus, still the delay of 23 days has occurred in filing the appeal.

22. In order to condone the delay, the appellants have to satisfy the Commission for delay of each day. However, the appellants have failed to show sufficient reason for delay of each day as required under the law. The applicants have abused the process of law and filed this appeal after immense delay without any reasonable ground.

23. As per the averments made in the application as well as the record, we are of the considered view that no cogent reason has been explained by the appellant to show the delay in filing the appeal.

24. Having regard to the statutory position discussed in para supra and the facts of the case, the applicant/appellant has failed to show any sufficient cause for the delay in filing the present appeal. Therefore, the application filed by the appellant seeking condonation of delay cannot be admitted and accordingly, the same is dismissed on the above grounds.

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

26. File be consigned to record room.