State Consumer Disputes Redressal Commission
Ashis Chowdhury vs Jayantee Chatterjee on 23 March, 2022
Cause Title/Judgement-Entry STATE CONSUMER DISPUTES REDRESSAL COMMISSION WEST BENGAL 11A, Mirza Ghalib Street, Kolkata - 700087 Revision Petition No. RP/42/2021 ( Date of Filing : 08 Dec 2021 ) (Arisen out of Order Dated 26/09/2019 in Case No. Complaint Case No. CC/328/2017 of District Nadia) 1. Ashis Chowdhury S/o, Lt Dilip Kumar Chowdhury. Basirhat, Old Market, P.S.- Opposite Basirhat, Pin- 743 311, Dist- North 24 Parganas. ...........Appellant(s) Versus 1. Jayantee Chatterjee D/o, Lt Sushil Chatterjee. Vill & P.O.- Dandirhat, P.S.- Basirhat, Dist- North 24 Parganas, Pin- 743 412. ...........Respondent(s) BEFORE: HON'BLE MR. JUSTICE MANOJIT MANDAL PRESIDENT HON'BLE MRS. SAMIKSHA BHATTACHARYA MEMBER PRESENT: Mr. Sourav Sengupta, Advocate for the Petitioner 1 none appears ......for the Respondent Dated : 23 Mar 2022 Final Order / Judgement
HON'BLE MR. JUSTICE MANOJIT MANDAL, PRESIDENT The Present Revision Petition has been filed by the petitioner/Opposite party praying for direction to the ld. District Commission to accept the Affidavit of Evidence /Affidavit in chief of the petitioner/Opposite party and allow him to effectively argue/defend his case in connection with CC/328/2017 pending before the ld. District Consumer Disputes Redressed Commission, North 24 Parganas at Barasat by allowing the instant petition.
Along with the Revision petition, an application for condonation of delay has also been filed by the petitioner/opposite party.
We have heard the Ld. Advocate of the respective parties on the application for condonation of delay and also carefully perused the record.
Upon hearing Ld. Advocates appearing for the parties and on perusal of the record it appears to us that by order dated 4.4.2018 opposite party was directed to file questionnaire on 1.8.2018. On 1.8.2018, the case was adjourned due to inclement weather as well as disturbance in the railway service and 2.1.2019 was fixed for filing questionnaire by the OP. On 2.1.2019 the Petitioner/OP prayed for time for filing questionnaire and prayer of the OP was allowed by the ld. District Commission subject to payment of cost of Rs.500/- payable to the Consumer Legal Aid Account. On 2.1.2019 Ld. District Commission was pleased to fix 24.1.2019 for filing questionnaire by the Petitioner/OP as a last chance. On 24.1.2019 the OP did not file any questionnaire as ordered in the last occasion. No payment of cost was also paid by the petitioner/OP. However another special chance was given to the petitioner/OP subject to payment of cost of Rs.500/- payable to the Consumer Legal Aid Account and fixed 26.4.2019 for filing questionnaire. On 26.4.2019 the matter was adjourned due to resolution of local Bar Association.
On 26.4.2019 ld. District Commission fixed the date on 9.7.2019 for filing questionnaire by the Opposite Party/Petitioner as a special chance. On 9.7.2019 no questionnaire was filed by the Petitioner/O.P. as such on that date Ld. Commission below was pleased to fix 26.9.2019 for filing affidavit in chief by the O.P. Hon'ble Supreme Court has held that the party who has not acted diligently or remain inactive is not entitled for condonation of delay.
The Hon'ble Supreme Court in the case of "R.B.Ramlingam -Vs- R.B.Bhavaneshwari reported in 1(2009) CLT 188 (SC) has also described the test for determining whether the petitioner has acted with due diligence or not . The Hon'ble Supreme Court has held as under :
" we hold that in each and every case the court has to examine whether the delay in filing special leave petitions stands properly explained. This is the basic test which needs to be applied. The True guide is whether the petitioner has acted with reasonable diligent in the prosecution of his appeal/petition"
Condonation of delay is not a matter of right and the petitioner has to set out the case showing sufficient reasons which prevented him to come to the Court/Commission within the stipulated period of limitation. The Hon'ble Supreme Court in the matter of Ram Lal and Others -Vs- Rewa Coal fields Limited, AIR 1962 Supreme Court 361 has held as under -
"It is however, necessary to emphasis that even after sufficient cause has been shown a party is not entitled to the Condonation of delay in question as a matter of right. The proof of a sufficient cause is a condition precedent to the exercise of the discretionary jurisdiction vested in the court by Section 5. If sufficient cause is not proved nothing further has to be done ; the application for condoning delay has to be dismissed on that ground alone. If sufficient cause is shown then the court has to enquire whether in its discretion it should condone the delay. This aspect of the matter naturally introduces the consideration of all relevant facts and it is at this stage that diligence of the party or its bonafides may fall for consideration ; but the scope of the enquiry while exercising the discretionary power after sufficient cause is shown would naturally be limited only to such facts as the court may regard as relevant"
The burden is on the petitioner to show that there was sufficient cause for the delay. The expression 'sufficient cause' has been discussed and defined by the Hon'ble Supreme Court in the case of Basantaraj and Another Vs. The Spl. Land Acquisition Officer, 2013 AIR SCW 6510 as under ;
" 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" , in as much as may be necessary to answer the purpose intended. Therefore, the word "sufficient" embraced no more than that which provides a platitude, which , 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 exercise discretion, it has to be exercised judiciously. The petitioner must satisfy the Commission 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 Commission has to examine whether the mistake is bona fide or was merely a device to cover an ulterior purpose.
We have discussed in our foregoing paras that the petitioner has not acted diligently and remained inactive in filing questionnaire though several adjournments were given to the petitioner. In the premises noted above it is clear that there was no sufficient cause for not filing the questionnaire by O.P. in time. Considering this and on consideration of the abovenoted rulings, we hold that the petitioner is not entitled for condonation of delay.
In this particular case, the petitioner, however does not mention the delay in filing the Revision petition. According to the office record, there is delay of 714 days which is over and above the period of 90 days statutorily given to file the Revision petition. Under the Consumer Protection Act, Consumer Commission are required to decide the cases in summary manner within the time frame i.e. within 90 days from the date of filing, in case, no expert evidence is required to be taken, and within 150 days, whereever expert evidence is required to be taken . The only reason given for condonation of delay is that OP do not have any control over the steps taken or not taken by the Ld.Advocate . The Opposite party has been suffering much in his personal and professional life due to various family dispute and illegal acts and action of his staff. The other reason given for condonation of delay is that his mother finally succumbed to cancer after suffering for a long time and making it a costly affair, all aid upto the misery that the Op has been thrown into. Another reason given for condonation of delay is that Ld. Advocate engaged for the petitioner Mr. Debasish Chaterjee is unfortunately expired on 14.10.2020 which led to the said delay in fling the Revision petition. We are not at all satisfied with the cause shown.
In view of the decision of the Hon'ble Apex Court in Anshul Agarwal -Vs- New Okhla Industrial Development Authority - IV (2011) CPJ 63 (SC) it has been held that while deciding the application 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. Relevant observations are as under -
" it is also apposite to observe that while deciding an application filed in such cases 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 and filing appeal and revision in consumer matters and the object of expeditious adjudication of the consumer disputes will get defeated if this Court was to entertain highly belated petitions filed against the orders of the Consumer Foras".
In view of the above observation and on the basis of above facts and circumstances we are of the view that the delay of 714 days cannot be condoned without sufficient cause being shown. The application for condonation of delay is dismissed. Consequently, the Revision petition is dismissed as barred by limitation. Interim order granted earlier be vacated.
[HON'BLE MR. JUSTICE MANOJIT MANDAL] PRESIDENT [HON'BLE MRS. SAMIKSHA BHATTACHARYA] MEMBER