National Consumer Disputes Redressal
Cox & Kings Ltd. vs Sri Kalyan Kumar Biswas & Anr. on 27 November, 2014
NATIONAL
CONSUMER DISPUTES REDRESSAL COMMISSION
NEW
DELHI
REVISION PETITION NO. 2196 OF 2014
(From the order dated 14.2.2014 in S.C. Case No.
FA/1239/2013 of the West Bengal State Consumer Disputes Redressal
Commission, Kolkata)
With
IA/3270/2014 (Stay)
1. COX & KINGS LTD.
TURNER MORRISON BUILDING,
NO-16, BANK STREET, FORT,
MUMBAI 400001, MAHARASHTRA
ALSO AT:
6, LITTLE RUSSEL STREET
GROUND FLOOR, KANKARIA ESTATE
P.S. SHEKESPEARE SARANI
KOLOKATA 700 071, WEST BENGAL
..........Petitioner(s)/Opp. Party (OP)
Versus
1. SRI KALYAN KUMAR BISWAS
R/O 10 MANDEVILLE GARDENS, FLAT NO-709, P.S GARIAHAT,
KOLKATA 700017 (W.B.)
2. SMT.BHARATI BISWASM, W/O MR.KALYAN KUMAR BISWAS,
R/O 10 MANDEVILLE GARDENS, FLAT NO-709, P.S GARIHAT, KOLKATA 700
019
(W.B.)
...........Respondent(s)/Complainants
BEFORE
HONBLE MR. JUSTICE
K.S. CHAUDHARI, PRESIDING MEMBER
For the Petitioner
: Mr. A.P.S. Ahluwalia, Sr.
Advocate
With Mr. Jitender
Mehta, Advocate with Mr. Ashish Gupta, A.R.
For the Res. No. 1 & 2 : In person
PRONOUNCED ON 27th November, 2014
O R D E R
PER JUSTICE K.S. CHAUDHARI, PRESIDING MEMBER This revision petition has been filed by the petitioner against the order dated 14.02.2014 passed by the West Bengal State Consumer Disputes Redressal Commission, Kolkata (in short, the State Commission) in S.C. Case No. FA/1239/2013 Cox & Kings Ltd. Vs. Kalyan Kumar Biswar & Anr. by which appeal was dismissed as barred by limitation.
2. Brief facts of the case are that complainants/respondents filed complaint before District Forum for refund of amount deposited for visa processing etc. OP resisted complaint and learned District Forum vide order dated 30.8.2013 allowed complaint and directed OP to refund amount along with compensation and litigation cost. OP filed appeal before State Commission along with application for condonation of delay and learned State Commission vide impugned order dismissed application for condonation of delay and subsequently dismissed appeal against which this revision petition has been filed.
3. Heard learned Counsel for the petitioner and respondent in person finally at admission stage and perused record.
4. Learned Counsel for the petitioner submitted that inspite of reasonable explanation for condonation of delay, learned State Commission committed error in dismissing application for condonation of delay and dismissing appeal; hence, revision petition be allowed and delay in filing appeal be condoned and matter may be remanded back to learned State Commission for deciding appeal on merits. On the other hand, respondent submitted that order passed by learned State Commission is in accordance with law; hence, revision petition be dismissed.
5. Admittedly, learned District Forum allowed complaint vide order dated 30.8.2013 and appeal was filed by OP on 20.11.2013. Petitioner filed application for condonation of delay before leaned State Commission and submitted that petitioner came to know about order of District Forum on 21.9.2013 and applied for copy on 23.9.2013 and obtained copy on the same day. It was further submitted that petitioner sent copy of District Forum order to higher authorities, but on account of Pooja vacations could not convey its opinion to the Advocate. On 21.10.2013, petitioner asked Advocate to file appeal. On 22.10.2013, Advocate of the petitioner asked for some documents which were provided on 30.10.2013 as they were in the custody of Regd. office of the petitioner. It was further submitted that draft of memo of appeal was sent on 8.11.2013 for approval of the concerned Department of the Regd. office and in such circumstances, delay occurred in filing appeal may be condoned.
6. Period of delay to be condoned in the application has not been mentioned.
Perusal of copy of District Forum order reveals that certified copy was given to the petitioner on 23.9.2013, though, as per endorsement free copy was despatched on 9.9.2013 by hand, but no document has been filed by respondent to prove that free copy was delivered to the petitioner on 9.9.2013. Respondents in the course of arguments submitted that they intimated about judgment to the petitioner in first week of September, but they have not placed any document on record to substantiate their argument and learned State Commission has also not taken note of intimation to the petitioner by respondents.
In such circumstances, it can be presumed that copy of order was received by petitioner on 23.9.2013 and appeal was filed on 20.11.2013 meaning thereby, there was delay of about 28 days in filing appeal whereas, learned State Commission dismissed application for condonation of delay on the basis of delay of 50 days reckoned from the date of order which is apparently not correct. As there was delay of only 28 days in filing appeal, looking to the averments in the application for condonation of delay, delay should have been condoned subject to cost. Learned Counsel for the petitioner has placed reliance on judgment of my Bench in R.P. No. 3024 of 2013 M/s. Cox & Kings Ltd. Vs. Shri Vijay Baburaoji Chandawar in which delay of 135 days was condoned subject to cost. He has also placed reliance on judgement of this Commission Coordinate Bench in IV (2012) CPJ 445 (NC) Mahindra Holidays & Resorts India Ltd. Vs. Vasantkumar H. Khandelwal in which delay of 70 days was condoned subject to cost by.
7. On the other hand, respondents placed reliance on judgment of Honble Apex Court in (2011) 14 SCC 579 Anshul Aggarwal Vs. New Okhla Industrial Development Authority in which delay of 233 days in filing Special Leave Petition was not condoned. He also placed reliance on judgment of this Commission in R.P. No. 4738 of 2012 NCR Vehicles Pvt. Ltd. Vs. Rais Ahmed & Anr. in which 257 days delay in filing appeal before State Commission was not condoned. He also placed reliance on judgment of this Commission in R.P. No. 329 of 2012 to 683 of 2012 Ajmer Vidyut Vitran Nigam Ltd. & Anr. Vs. Bhagga in which delay of 77 days to 203 days in filing revision petition was not condoned. In all the aforesaid cases, there was delay of more than 77 days whereas, in the case in hand, there is delay of only 28 days with reasonable explanation and in such circumstances, in the light of judgments relied on by Counsel for the petitioner, delay deserves to be condoned and revision petition is to be allowed.
8. Consequently revision petition filed by the petitioner is allowed and order dated 14.02.2014 passed by the State Commission, in S.C. Case No. FA/1239/2013 Cox & Kings Ltd. Vs. Kalyan Kumar Biswar & Anr. is set aside and delay in filing appeal before State Commission is condoned subject to payment of Rs.10,000/- as cost to the respondent and appeal is restored at its original number and matter is remanded back to learned State Commission with direction to decide appeal on merits after giving an opportunity of being heard to both the parties.
9. Parties are directed to appear before the State Commission on 7.1.2015.
..Sd/-
( K.S. CHAUDHARI, J) PRESIDING MEMBER k