State Consumer Disputes Redressal Commission
Sri Subhajit Sardar vs Smt Chandra Dutta on 2 March, 2023
Cause Title/Judgement-Entry STATE CONSUMER DISPUTES REDRESSAL COMMISSION WEST BENGAL 11A, Mirza Ghalib Street, Kolkata - 700087 First Appeal No. A/243/2022 ( Date of Filing : 23 Sep 2022 ) (Arisen out of Order Dated 30/12/2019 in Case No. Complaint Case No. CC/296/2019 of District Kolkata-II(Central)) 1. Sri Subhajit Sardar S/o, Bablu Sardar. Naskarhat Madhyapara, Rabindrapally, P.S.- Kasba, Kolkata- 700 039. 2. Sri Samir Singh S/o, Debendra Singh. 257, Naskarhat Tagore Park, P.S.- Kasba, Kolkata- 700 039. ...........Appellant(s) Versus 1. Smt Chandra Dutta W/o, Lt Sanjoy Dutta. 275, Naskarhat, P.S.- Kasba, Kolkata- 700 039. 2. Sri Tapas Naskar Madhyapara Naskarhat, Rabindrapally, P.S.- Kasba, Kolkata- 700 039. ...........Respondent(s) BEFORE: HON'BLE MR. JUSTICE MANOJIT MANDAL PRESIDENT HON'BLE MRS. SAMIKSHA BHATTACHARYA MEMBER HON'BLE MR. SHYAMAL KUMAR GHOSH MEMBER PRESENT: Mr. Rathin Chakrabarty, Ms. S. Roy Chowdhury, Advocate for the Appellant 1 Saikat Mali,Abijit Bhuina, Advocate for the Respondent 1 Dated : 02 Mar 2023 Final Order / Judgement
HON'BLE MR. JUSTICE MANOJIT MANDAL, PRESIDENT This appeal has been filed against the order dated 30.12.2019 passed by the Learned District Consumer Disputes Redressal Commission, Kolkata, Unit II (in short, the 'District Commission') in connection with consumer case No. 296/2019.
Along with the appeal an application for condonation of delay has also been filed by the appellants seeking the following reliefs :-
"It is therefore prayed that your Lordship would graciously be pleased to condone the delay if any in filing the appeal and / or pass such other order or orders as your Lordship may deem fit and proper."
We have heard the Learned Advocates appearing for both the parties on the application for condonation of delay and also carefully perused the record.
Learned Advocate appearing for the appellants submits that the appellants did not receive the notice and have failed to contest the consumer case No. CC/296/2019. He has further submitted that the appellants have not received the free copy of the judgment from the Commission. He has further submitted that the impugned judgement is nullity. There is a delay in filing the instant appeal. So, the delay in filing the application should be condoned and appeal should be admitted.
On the other hand, Learned Advocate appearing for the respondents has submitted that the application filed by the appellants is not bona fide and it is not maintainable in law. He has further submitted that the delay caused for filing the appeal due to lack of knowledge of the appellants as regard to passing the impugned judgment in which the delay of 952 days for filing this appeal cannot be considered as a valid ground for condonation of delay as prayed for. He has further submitted that the inordinate delay in filing the present appeal beyond the prescribed statutory period of limitation cannot be condoned in any circumstances bypassing the statutory provisions under the law specially under the Consumer Protection Act. So, the application for condonation of delay should be dismissed.
Having heard the Learned Advocates appearing for both the parties and on perusal of the record it appears to us that the office has submitted a report that this appeal has been filed with a delay of 952 days.
It also appears to us that the judgment of this case was passed on 30.12.2019 and the present appeal has been filed on 23.09.2022. Now, we shall have to consider as to whether the application for condonation of delay should be allowed.
To adjudicate this issue we deem it proper to refer to section 41 of the Consumer Protection Act, 2019 which runs as follows :-
"41. Any person aggrieved by an order made by the District Commission may prefer an appeal against such order to the State Commission on the grounds of facts or law within a period of forty-five days from the date of the order, in such form and manner, as may be prescribed:
Provided that the State Commission may entertain an appeal after the expiry of the said period of forty-five days, if it is satisfied that there was sufficient cause for not filing it within that period:
Provided further that no appeal by a person, who is required to pay any amount in terms of an order of the District Commission, shall be entertained by the State Commission unless the appellant has deposited fifty per cent. of that amount in the manner as may be prescribed:
Provided also that no appeal shall lie from any order passed under sub-section (1) of section 81 by the District Commission pursuant to a settlement by mediation under section 80."
On perusal of the aforesaid provision it is clear to us that the appeal against the order should be preferred within a period of 45 days from the date of order.
On perusal of the record produced before us it is clear that the impugned order was passed on 30.12.2019 and the present appeal was filed on 23.09.2022 i.e. after a delay of 952 days. The office has also submitted the report before this Commission that this appeal has been filed with a delay of 952 days.
In order to condone the delay of the said 952 days, the appellants have to satisfy this Commission that there was sufficient cause for preferring the appeal after the statutory period. The term "sufficient cause" has been explained by the Hon'ble Apex Court in Basawaraj and Ors. V. The Special Land Acquisition Officer reported in AIR 2014 SC 746. The relevant paras of the aforesaid judgment are reproduced as under :-
"9.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", inasmuch as may be necessary to answer the purpose intended. Therefore, the word "sufficient" embraces no more than that which provides a platitude, 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 exercises discretion, it has to be exercised judiciously. The appellant must satisfy the Court 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 court has to examine whether the mistake is bona fide or was merely a device to cover an ulterior purpose".
We also deem it appropriate to refer to Anil Kumar Sharma vs. United Indian Insurance Co. Ltd. and Ors. reported in IV (2015) CPJ 453 (NC), wherein the Hon'ble NCDRC held as under :-
"12. .............. we are not satisfied with the cause shown to justify the delay of 590/601 days. Day to day delay has not been explained. Hon'ble Supreme Court in a recent judgment of Anshul Aggarwal v. New Okhla Industrial Development Authority, IV (2011) CPJ 63 (SC) has held that while deciding the application filed 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."
From the aforesaid dicta of the Hon'ble Apex Court and the Hon'ble National Commission, it is clear that '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 and applicant must satisfy the Court 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 Hon'ble National Commission in a case being No. / revision petition No. 438 of 2021 (HDFC Bank Ltd. Vs. Deepak Goyal) has pronounced that :-
"Be that as it may, ordinarily we tend to adopt a liberal approach on the aspect of considering the point of condonation of delay and lean to take an indulgent view towards the side who seeks such condonation. It is for the reason that we prefer that a matter be decided on merits rather than closed at the threshold stage i.e. on the ground of delay but that does not imply that we may ever ride roughshod over the statutory requirement regarding the law of limitation wherever it has been provided by the legislature in its wisdom. It does not need much elaboration to state that when the period of limitation expires it simultaneously gives rise to a right which accrues to the other side and the other side cannot be divested of its accrued right for no adequate reason, that is why, whenever there is a delay, and whenever condonation on that aspect is sought, by either side, it has to discharge the onus of showing such factual basis from which may emanate the convincing grounds relying upon which such delay may be condoned. It goes without saying that such explanation has to be genuine and not an explanation just for the sake of explanation. Anything and everything said to bridge up a yawning gap of delay is not to be termed as legitimate explanation, which has to be sincere, honest and persuasively adequate and worthy of credence."
Reverting to the materials available before us para 3 to 12 of the application for condonation of delay is the explanation given by the appellants for the delay caused in filing the appeal. To explain the said delay, the appellants have stated in the said petition that no notice was served upon the appellants / opposite parties. As such, the appellants / opposite parties have failed to contest the case and the ex parte order was passed against the appellants. Further case of the appellants is that the appellants came to know about the impugned judgment on 15.07.2022. As such, there is delay in filing the appeal which is nominal.
Learned Advocate appearing for the appellants has drawn the attention of this Commission to the track consignment report where the postal authority made an endorsement with the remark 'insufficient address'.
We fail to accept the case of the appellants. By keeping the memo of appeal and the copy of the complaint case side by side, it appears to us that the address of the appellants as mentioned in the memo of appeal and the address as mentioned in the copy of complaint are same and identical. Therefore, we may conclude that notices upon the opposite parties have been sent to the correct address and it must be presumed that the notice have been made effective. Moreover, it is not correct that the appellants came to know about the filing of the complaint case on 15.07.2022 while the police of Kasba P.S. informed them. We think that such plea has been taken by the appellants when W/A was issued against them in execution case only to get rid of complaint case and to condone the delay though they had full knowledge about the complaint case. So, the plea as taken by the appellants / opposite parties is not convincing and believable at all and the said plea prima facie to have been made with the intention to mislead the Commission and to get the condonation petition allowed at the admission stage itself.
The Hon'ble Supreme Court has held in a case reported in 2022 Livelaw (SC) 430 - ( State of UP Vs. Satish Chand Shivhare ) that once an appeal is found to be barred by limitation, there can be no question of obligation of the Court to consider the merits of the case of the appellant.
In another case reported in II (2014) CPJ 570 (NC) - (Regional Provident Fund Commissioner Vs. S. Shiva Shankar Rao) the Hon'ble National Commission held that in this case day to day delay was not explained, the cases are barred by limitation.
In a recent judgment, the Hon'ble Supreme Court observed that the condonation of delay would depend on the background of each and every case; and routine explanation would not enough. The Hon'ble Supreme Court in University of Delhi Vs. Union of India in Civil Appeal Nos. 94889489 of 2019 arising out of SLP (Civil) Nos. 55815582 of 2019 decided on 17/12/2019 has held as under :-
"The consideration for condonation of delay would not depend on the status of the party namely the Government or the public bodies so as to apply a different yardstick but the ultimate consideration should be to render even handed justice to the parties. Even in such case the condonation of long delay should not be automatic since the accrued right or the adverse consequence to the opposite party is also to be kept in perspective. In that background while considering condonation of delay, the routine explanation Page 24 of 34 would not be enough but it should be in the nature of indicating "sufficient cause" to justify the delay which will depend on the backdrop of each case and will have to be weighed carefully by the Courts based on the fact situation ....................
That apart when there is such a long delay and there is no proper explanation, laches would also come into play while noticing as to the manner in which a party has proceeded before filing an appeal".
Under these facts and circumstances and on careful perusal of the materials on record it appears to us that the complainant has failed to explain day to day delay in filing the instant appeal.
Accordingly, we may conclude that the appellants have failed to prove sufficient cause or justify the delay in filing the present appeal.
Learned Advocate for the appellants in support of her argument relied on the judgment reported in 2022 liveLaw (SC) 550 ( Manager, IndusInd Bank Ltd. & Anr. Vs. Sanjay Ghosh). However, reliance of this judgment in the adjudication of this case, facts being at variance, would be misplaced.
The appellants were silent till the W/A was issued by the Learned District Commission and when the W/A was issued against the appellants, then and there the appellants filed the present appeal before this Commission. In the result, the submission of the Learned Advocate appearing for the appellants that the appellants got knowledge of the impugned order on 25.07.2022 is nothing but an attempt to mislead the Commission.
In view of the above, we find no sufficient ground to condone the inordinate delay of about 952 days. The present appeal is nothing but an abuse of process of law.
The application for condonation of delay is accordingly dismissed.
Accordingly, the appeal is dismissed being barred by limitation.
[HON'BLE MR. JUSTICE MANOJIT MANDAL] PRESIDENT [HON'BLE MRS. SAMIKSHA BHATTACHARYA] MEMBER [HON'BLE MR. SHYAMAL KUMAR GHOSH] MEMBER