State Consumer Disputes Redressal Commission
Sri Prabir Dey vs Sri Goutam Mukherjee on 31 March, 2010
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/459/2009 DATE OF FILING: 30.11.09 DATE OF FINAL ORDER: 31.03.2010 APPELLANT Sri Prabir Dey Proprietor of M/s. Cosco Engineer Civil & Structural Grouting Vill & P.O. Kalikapur, P.S. Sonarpur Kolkata 700 150 and also at Vill Subhasgram, P.O. Kodalia P.S. Sonarpur, Pin 743 350 District South 24 Parganas RESPONDENT Sri Goutam Mukherjee 4A, Straight Lane, Chetla P.S. Chetla, Kolkata 700 027 BEFORE : HONBLE JUSTICE MR. A. CHAKRABARTI, PRESIDENT MEMBER : MRS. S. MAJUMDER FOR THE APPELLANT : Mr. B. Prasad, Advocate FOR THE RESPONDENT : Mr. S. Debray, Advocate : O R D E R :
HONBLE JUSTICE MR. A. CHAKRABARTI, PRESIDENT The Appellant has filed present application for condonation of delay of 590 days in preferring the appeal. The impugned order was passed on 15.4.08. The appellant has stated that he received the certified copy of the impugned order on 23.4.09 and he had no knowledge about the proceeding until the police station intimated the appellant about warrant of arrest. The Appellant, thereafter, appeared in the Execution Case and obtained bail on 06.5.09.
The case was entrusted with one Ld. Advocate, Shri Sanjoy Chakraborty for preferring appeal. From time to time the appellant visited the chamber of the said Ld. Advocate and was being assured that he would file appeal very soon. But on 24.11.09 the appellant again came to know that a warrant of arrest had been issued by the Forum due to non-appearance of the appellant.
Immediately an enquiry was caused from the Ld. Advocate as regards preferring the appeal and the appellant was told that appeal had been filed and the matter is pending. But as no case number was available, the appellant enquired from the State Commission and came to know that no appeal was filed. The appellant detected that he had been misrepresented by the Ld. Advocate and ultimately the appeal was filed with application for condonation of delay.
The Complainant/Respondent filed written objection disclosing that Forum had issued notice under Registered Post both at the residence and factory of the appellant which were returned with endorsement refused. Each and every application moved before the Forum was sent to the appellant under Registered Post with A.D. and all the time the appellant refused to receive the same. The Complainant/Respondent denied that appellant did not have any knowledge about the proceeding until issuance of warrant was intimated. The OP filed further supplementary objection disclosing the conduct of the appellant in course of the proceeding before the Forum.
Heard Mr. B. Prasad, the Ld. Advocate for the Appellant/Petitioner and Mr. S. Debray, the Ld. Advocate for the Respondent.
It appears that the contention of the appellant praying for condonation of delay has two parts. The first part is that the appellant had no knowledge of the proceeding before the Forum until police station intimated about the issuance of warrant of arrest on 23.4.09. In this respect the disclosure of the Complainant/Respondent of the records showing that the notices were being refused by the appellant at all the stages and copies of the documents have been disclosed in support of such contention. Moreover, the complainant respondent has filed Xerox copy of the Ordersheet in the complaint case and from order no.10 dated 11.1.08 it appears that the complainant and OP filed Hazira which shows that the OP was very much aware of the proceeding. The Forum has also noticed return of the notices from the OP/Judgment Debtor with endorsement refused. In the circumstances I find that the appellant has not successfully shown that the appellant did not know of the proceeding before the Forum till 23.4.09 as alleged by him in the application.
As regards the second part of the delay also it appears that a Ld. Advocate had been entrusted and the appellant repeatedly enquired about the filing of the appeal and was being assured that appeal would be filed. In such circumstance the appellant should have been concerned about not filing the appeal for such a long time particularly when he knew that in the Execution Case warrant of arrest had once been issued against the appellant.
In above view of the facts I do not find that there is proper explanation of not preferring the appeal within the period of limitation and the appellant is not entitled to any benefit as he refused the notice from the Forum and also in respect of the subsequent proceedings and applications which show he knew of the proceeding. On some occasion the appellant was represented in the proceeding before the Forum. Therefore, as I do not believe that the appellant did not know of the proceeding till 23.4.09, I do not find there is any good explanation of not preferring the appeal or that there was good reason for filing the same after a long delay of 590 days.
As regards the latter part of the explanation when the Ld. Advocate wrongly communicated the appellant that an appeal had been filed, the appellant had detected that the appeal was not filed as the number of the appeal was not given. In the circumstances on facts the appellants contentions cannot be accepted and in that view of the matter the law cited by the appellant does not require any consideration in details. The application is, therefore, dismissed. Accordingly the appeal also stands dismissed.
(S. Majumder) (Justice A. Chakrabarti) MEMBER(L) PRESIDENT