State Consumer Disputes Redressal Commission
Tata Motors Finance Limited vs Sri Abhijit Roy on 22 March, 2012
State Consumer Disputes Redressal Commission State Consumer Disputes Redressal Commission West Bengal BHABANI BHAVAN (GROUND FLOOR) 31, BELVEDERE ROAD, ALIPORE KOLKATA 700 027 S.C. CASE NO- FA/487/2011 DATE OF FILING: 29.11.2011 DATE OF ORDER: 22.03.2012 APPELLANT : Tata Motors Finance Limited, Kharagpur Branch, M/s. South Bengal Automobiles, Plot No-886,896, Railway Goods Shed, Kharagpur, Dist-Paschim Medinipur, Pin-721301. RESPONDENT : Sri. Abhijit Roy, S/o Subimal Roy, Vill-Dalapatipur, P.O. Kharar, P.S.-Ghatal, Dist-Paschim Medinipur. BEFORE HONBLE MEMBER : Smt. Silpi Majumder. HONBLE MEMBER :
Sri Debasis Bhattacharya.
FOR THE APPELLANT : Mr. Ritobrata Banerjee, Advocate.
FOR THE RESPONDENT: Mr. Apurba Chakraborty, Advocate.
Silpi Majumder, Member This appeal is filed by the Appellant out of time by 168 days from the date of passing of the judgment by the Ld. District Forum.
In the petition for condonation of delay it is stated by the Appellant that the impugned judgment was passed by the Ld. District Forum on 29.04.2011 and application for the certified copy was made on 16.05.2011 and the same was delivered to the appellant on 17.05.2011. The Ld. Advocate for the Appellant posted the said copy of the judgment to the solicitors firm in Kolkata on 19.05.2011 for their perusal and the same was received by the said firm in between 23.05.2011 to 26.05.2011. Owing to summer vacation in the Honble High Court, Kolkata from middle of May to June, the chamber of the solicitors firm was closed and hence the Advocates were unavailable. The chamber reopened on 13.06.2011 and the concerned Advocate got the certified copy in their hands on the said date and thereafter forwarded the same to their client company, being the Appellant in this case on the same date at their Kolkata office. The local office of the company received it on the next date and thereafter contacted their head office in Mumbai asking them for instructions for further course of action. The local office of the company posted the original certified copy to the head office in Mumbai on the next day i.e. 15.06.2011 and the head office received it on 24.06.2011. The legal department of the company in Mumbai had a meeting over the future course of action regarding the case on 29.06.2011. On the same day the head office contacted the local office and instructed them to enquire with the concerned solicitors in Kolkata and find out the possibilities of an appeal. The solicitor firm perusing the papers related with the case and the final order of the Ld. Forum below contacted the local office of the company and asked them to prefer an appeal against the impugned order dated 29.04.2011. The local office contacted the head office and intimated the same. Then the solicitors were instructed by the local office on 08.07.2011 for preferring an appeal against the impugned order. The solicitors have gone through the case papers and initiated the drafting of the memo of appeal. During course of drafting the solicitors required certain documents along with the original certified copy of the final order. Hence they asked the local office to provide the same through e-mail on 13.07.2011. The local office reverted back on 18.07.2011, stating that the same would be a bit delayed as the required documents are lying at the companys head office in Mumbai. The local office again contacted the solicitors after a few days and informed that some of the documents were missing at the head office and hence it would take some more time to send all the relevant documents. Thereafter on 27.07.2011 the local office received the scanned copies of the required documents through e-mail from the head office and then forwarded the same to their solicitors on the same day through e-mail. After few days the solicitors were informed by the company on 08.08.2011 that the vehicle in question was sold off through auction. Hence they asked the company to provide details of the sale proceedings. The local office, in turn, contacted their head office and asked for the same. Thereafter the head office provided the details to the local office on 12.08.2011. The local office forwarded the sale details to the solicitors in Kolkata on 18.08.2011. The draft of appeal after being made ready was forwarded for approval to the local office of the company via e-mail on 05.09.2011. The local office sent the draft to the head office which was returned on 13.09.2011 suggesting minor corrections. The solicitors received it from the local office on 14.09.2011 and after making necessary additions, alterations sent it back to the local office on 19.09.2011, which was, in turn, forwarded to the head office for a final check. The solicitors received the approved and final copy of the memo of appeal from the companys local office on 26.09.2011. In the meantime the father-in-law of the recorded Advocate got an accident and due to that accident he had to be hospitalized and the recorded Advocate could not attend his chamber during the end of September, 2011. The said injured person was kept in ventilator and finally expired on 01.01.2011 for which the brief had to be transferred to the present Advocate. The solicitors requested the company to issue a fresh vokalatnama in the name of the present Advocate, which they received on 29.09.2011. In the meantime all the Courts were closed due to Durga Puja vacation for one month of October, 2011, accordingly the chamber of the firm was also closed during that period. When the Courts re-opened, the appeal was finally made ready and notarized and is being filed on 29.11.2011 before this Commission. After deducting the statutory period of 30 days and 12 days of Durga Puja, the total effective delay comes to 168 days. According to the Appellant if the delay is not condoned and appeal not admitted, it will suffer irreparable loss and injury and accordingly prayer has been made for allowing the petition for condonation of delay.
The Respondent appearing through his Ld. Advocate has raised vehement objection against the petition for condonation of delay. The Respondent has submitted that with malafide intention the Appellant has delayed the matter in preferring of this appeal and with a view to stall the decree for further considerable period. The Respondent has contended that sterio type explanation has been given in the petition for condonation of delay which cannot be at all entertained. According to the Respondent the petition is liable to be dismissed with exemplary cost.
We have perused the petition for condonation of delay and heard the submissions advanced by the Ld. Counsel for the parties. It is seen by us that the exparte order and judgment impugned was passed by the Ld. District Forum on 29.04.2011, application was made for getting the certified copy of the said judgment on 16.05.2011 and the same was delivered on the next date i.e. 17.05.2011. This appeal was filed on 29.11.2011 before this Commission along with a petition for condonation of delay. Hence, there is delay of 213 days in preferring this appeal from the date of passing of the judgment by the Ld. District Forum. The Appellant is entitled to get statutory period of limitation i.e. 30 days and for which no explanation is necessary. Furthermore, for getting certified copy of the judgment 2 days have been elapsed and the Appellant is also entitled to get the benefit of said two days. Therefore the Appellant is liable to give explanation for delay of 181 days.
We have noticed from the impugned judgment that the Appellant-OP did not turn up inspite of service of notice upon them and as such the complaint was heard and disposed of exparte. It is seen by us that the Appellant has referred its papers, documents and the copy of the judgment to its local office, head office and to the solicitors on various occasions for their official procedure, but in that context how the said days have been consumed, the explanation is silent. It has been stated in the paragraph no-9 of the petition that the companys head office received the original certified copy of the judgment on 24.06.2011, but why the legal department of the company in Mumbai sat in a meeting on 29.06.2011, the reason has not been given clearly. In para 13 of the said petition while the solicitor firm gave opinion for preferring an appeal after perusing the case papers and the final order of the District Forum, but at the time of drafting of the memorandum of appeal which documents and papers became inevitable for their perusal, the explanation is silent in that respect. In respect of paragraph no-18, we are to say that where the local office was asked for through an e-mail to provide some documents on 13.07.2011, why the local office took 5 days to give intimation to the said solicitor firm, in this regard there is no explanation. In respect of paragraph no-22 and 23, we are of the view that while the head office of the Appellant provided the required details to the local office on 12.08.2011, the local office took 6 days to communicate the said details to the solicitor. It is pertinent to mention that the firm of the solicitor and the local office of the Appellant are situated in Kolkata.
Next we are to mention that though the Appellant has mentioned in the petition about the summer vacation and puja vacation, but in the Consumer Forum/Commission there is no summer vacation and during Durga Puja festival the Forum/ Commission remains closed as per the holiday list maintained by the Government of West Bengal. So the question for deduction of 12 days from the total delay does not arise at all. As there is no scope for summer vacation in the holiday list of the Government of West Bengal, we are not at one with the Appellant that due to summer vacation in the Honble High Court, step could not be taken for preferring an appeal before the State Commission. Moreover the petition suffers from lacking of explanation for the period from middle of May to middle of June.
Though the Appellant has tried its best to provide explanation for delay, but there is some lacuna on the part of the Appellant for giving proper explanation. It may be said that the appellant has given explanation for 168 days delay, but the total delay excluding the statutory period of limitation is for 181 days. Therefore no explanantion has been given for 13 days in the said petition. There are various judgments passed by the Honble Supreme Court as well as the Honble National Commission wherein it has been held that sufficient cause and cogent ground has to be shown for delay. As in the instant petition sufficient and satisfactory cause or explanation has not been shown by the appellant and no explanation has been given for 13 days, we are not inclined to allow the petition for condonation of delay.
Hence, it is ordered, that the petition for condonation of delay is dismissed on contest without any cost and the appeal is also dismissed being barred by limitation.
Sri Debasis Bhattacharya Silpi Majumder Member Member