State Consumer Disputes Redressal Commission
Ketan Consultants Privait Ltd. vs Suresh Dattaraya Namjoshi on 24 November, 2011
STATE CONSUMER DISPUTES REDRESSAL COMMISSION, MAHARASHTRA
STATE CONSUMER
DISPUTES REDRESSAL COMMISSION, MAHARASHTRA
CIRCUIT BENCH
AT NAGPUR
5 TH FLOOR,
ADMINISTRATIVE BUILDING NO. 1
CIVIL LINES,
NAGPUR-440 001
First Appeal
No. A/10/66
(Arisen out
of Order Dated 18/11/2002 in Case No. M/05/41 of District None)
KETAN CONSULTANTS PRIVAIT LTD.
THROUGH ITS MANAGING DIRECTOR
SHRI CHANDRAKANT DIGAMBAR PURANIK
R 11 ZELAM APRTMENTS LAXMI NAGAR NAGPUR
...........Appellant(s)
Versus
SURESH DATTARAYA NAMJOSHI
R/O CHETAK PURI NEAR RAM MANDIR
GWALIER (MP)
...........Respondent(s)
BEFORE:
Hon'ble Mr.S.M. Shembole Presiding Member
Hon'ble Smt.Jayshree Yengal Member
Hon'ble Mr N. Arumugam Member
PRESENT:
Mr C Puranik - M.D.
......for the Appellant
Adv.Ms U Khatate
......for the Respondent
ORDER
Per Mr S M Shembole, Honble Presiding Member Matter was recalled at 2.50 p.m. but the Advocate appearing for the appellant did not turn up. Appellant submitted that his counsel is busy in High Court. Appellant further submitted that he has already filed Written Notes of Argument.
Order below Misc. Application No.MA/10/73 for Condonation of Delay in preferring the Appeal bearing No.A/10/66
1. This is an application for condonation of delay of 84 months, which was caused in filing the appeal against the judgement & order dtd.18.11.2002 passed by Addl. District Consumer Forum, Nagpur in Consumer Complaint No.CC/98/425.
2. We heard the applicant / appellant Mr Chandrakant Puranik proxy Adv. Ms U Khatate, appearing for non-applicant / respondent. So also, perused the application under order, reply given by non-applicant / respondent and copy of impugned judgement & order and other copies produced alongwith appellant.
3. It is submitted by the applicant / appellant, that he was not aware about the exparte judgement & order, which was passed on 18.11.2002. Thereafter, on 27.05.2005, he applied for recalling exparte judgement & order, which came to be dismissed on 06.06.2005.
4. Thereafter, on 24.06.2005, he filed Writ Petition in the Honble High Court, Bombay, Bench at Nagpur and stay was granted by the Honble High Court on depositing the amount of Rs.50,000/-. Thereafter, on 06.02.2009, he withdrew the Writ Petition.
5. On 24.01.2010, applicant / appellant filed the appeal alongwith an application for condonation of delay in this Commission.
6. According to the applicant / appellant, there was 84 months delay in preferring the appeal but it was not deliberate or with any mala fide intention but it was due to his illness. According to him, he was ailing seriously, continuously for about two & half years and he was advised by the Doctor for rest. In respect of this submission, he has also produced medical certificate dtd.08.03.2010 issued by Dr. A. R Chogle of Mumbai, which reflects that the applicant was under his treatment for Ankylosing Spondylitis for the last 8 months. He was advised for constant medical supervision, visiting him at Mumbai regularly. On all these grounds, he has submitted to condone the delay.
7. Per contra, proxy Adv.Ms U Khatate submitted that there is no just & reasonable ground to condone such inordinate delay more than 84 months. According to her, there was delay of 114 months in filing the appeal.
8. She has pointed out that when the applicant came to know about exparte judgement & order on 18.11.2002, he ought to have filed an application for setting aside the exparte judgement & order within 30 days. But he filed the application on 27.05.2005 i.e. after 30 months but no explanation is given for such delay.
9. Moreover, she has pointed out that the applicant had wrongly filed Writ Petition in the High Court, which was pending for more than three & half years. Further, she submitted that though the applicant was ailing and he was advised constant medical supervision, he was not bedridden. According to her, during the ailing period, applicant could have filed appeal by giving instructions to his counsel. She further submitted to dismiss the application.
10. Considering the above undisputed facts, there was delay of 30 months in filing the application to set aside the exparte order and further the appeal is filed after 10 months after withdrawing the Writ Petition from the High Court. We find much force in the argument advanced by Adv. Ms Khatate on behalf of non-applicant / respondent. Though the applicant had wrongly filed Writ Petition in the High Court, and consumed the time of about three & half years that period is excluded as provided u/s 14 of Limitation Act, in our view, there could be no difficulty for the applicant to file the appeal within stipulated period of Limitation or within reasonable period after withdrawal of Writ Petition.
11. As pointed out by the proxy Advocate for the non-applicant that though the applicant was ailing and advised for constant medical supervision by visiting the Doctor at Mumbai, he was not bedridden. In such situation, he could have contacted and instructed his counsel to file the application for setting aside the exparte judgement & order. Therefore, such inordinate delay on medical ground cannot be condoned. Further no explanation is given by the applicant as to why he could not file an application for setting aside exparte order within stipulated period of limitation.
12. Considering all these facts, we find no substance in the application under order. It is well settled law that in absence of any just & reasonable ground such inordinate delay cannot be condoned. Therefore, we are declined to condone the delay.
Hence, the following order:-
ORDER i. Application for condonation of delay stands dismissed.
ii. Consequently, the appeal bearing No.A/10/66 is rejected.
iii. No order as to cost.
iv. Copy of this order be supplied to
the parties.
Delivered on 24.11.2011.
[ HON'BLE S.M.
SHEMBOLE]
PRESIDING MEMBER
[ HON'BLE
SMT.JAYSHREE YENGAL]
MEMBER
[ HON'BLE N. ARUMUGAM]
MEMBER
sj