(Delivered on 05/11/2024)
Per Mrs Kalyani Kapse, Hon’ble Presiding Member
1. Applicant has filed the present application for condonation of delay of 522 days in preferring the appeal under Section 27- A of the Consumer Protection Act, 1986 before this Commission and being aggrieved by the judgment and order dated 20/01/2023 passed by the learned Additional District Consumer Disputes Redressal Commission, Nagpur in Execution Application No. EA/15/10.
2. Heard, Mr. Ketan Ganorkar, learned advocate for the applicant/appellant and Mr. Ambilwade, learned advocate for the respondent/original complainant on the point of condonation of delays. Advocate for the applicant submits that when the judgment dated 20/01/2023 was passed by the learned Additional District Consumer Disputes Redressal Commission, Nagpur the applicant was lodged in Central Jail, Nagpur and did not have knowledge about the same. After he acquired knowledge about the said order, he informed his earlier counsel to obtain necessary documents and file appeal. However, the same was not filed by the counsel and applicant did not have knowledge about the same and he remained under a bonafide belief that the appeal was filed and steps were taken by his family members and counsel for filing appeal.
3. It is in the month of July 2024 that he came to know that the appeal against the order of conviction was not filed and hence, it took some time for him to arrange for the amount of fine to be paid before the learned Additional District Consumer Disputes Redressal Commission, Nagpur and also to engage his lawyer for filing present appeal. Hence, the appeal ought to have been filed by the appellant on or before 19/02/2023. However, since the appeal is being filed on later stage, there is delay in filing the appeal of 522 days . The appellant further contended that on account of fact the appellant was lodged in Jail and hence, for rendering necessary instructions for filing appeal took some time and also he required some time to arrange for the amount of fine due to financial hardships. Hence, the delay being for bonafide reason deserves to be condoned.
4. The notice was issued to the non applicant/complainant and thereafter the non applicant/complainant has filed reply to the application for condonation of delay on 29/08/2024 and he strongly opposed and application for condonation of delay and contended that the delay of 522 days without any sufficient caused needs to be dismissed. The present appeal was preferred by the applicant containing the delay of 522 days but failed to given any justification and failed to explain delay as required by the provisions of law. The present application filed by the applicant is barred by limitation and there is no cogent and convenient reason about why delay has been caused. The appellant has to explain day to day explanation regarding delay but such explanation has not been proved and explain in the application. The applicant has to prove when certified copy of judgment of order was received by the applicant and when applicant has decided to file appeal before this Court. That, explanation has not been mentioned by the applicant. The applicant has filed the application for condonation of delay, in this the delay has to be explained by way of filing solemn affirmation but delay condonation application is filed without support of affidavit and therefore, such application is not maintainable and deserves to be dismissed with cost.
5. We have heard Mr. Ketan Ganorkar, learned advocate for the applicant/appellant and Mr. Ambilwade, learned advocate for the respondent/original complainant on the point of condonation of delay on 10/10/2024 and it was closed for order on delay condonation application on 28/10/2024.
6. We are of the view that the for calculating the period of delay applicant has to mention date on which he received certified copy of the impugned judgment and order dated 20/01/2023 but date of certified copy was not mentioned and secondly his application for condonation of delay is filed without support of the affidavit. The applicant has mentioned in his application that he was lodged in the jail when the judgment & order was passed on 20/01/2023 and he has no knowledge about the order in the execution proceedings. In execution application bearing No. EA/15/10 the summons were duly served and final hearing took place and judgment was passed on 20/01/2023. As such the counsel for the applicant has full knowledge of the execution proceedings and order passed therein.
7. The record reveals that the order was passed on 20/01/2023 and first copy was issued on the same day. In the application date of receipt of certified copy was not mentioned, even the applicant has not properly calculated the period of delay in preferring the present appeal. Applicant submitted that appeal filed on 30/07/2024 but on perusal of record it shows that the appeal was filed on 07/08/2024 and we find that there is huge delay of 530 days in filing this appeal and too without any justification or proper explanation. Record shows that first free copy was issued on dated 20/01/2023 when the applicant preferred this appeal along with the application for condonation of delay as well as suspension of sentence and grant of bail. We have heard Mr. Ganorkar, learned advocate for the applicant and Mr. Ambilwade, learned advocate for the non applicant on the point of condonation of delay on 10/10/2024 and it was closed for order on delay on 28/10/2024. But in the meantime, applicant has approached Hon’ble High Court, Nagpur Bench and filed Criminal Writ Petition.
8. It is matter of record that on 28/10/2024 applicant has filed pursis stating that Hon’ble High Court, Nagpur Bench has vide order dated, 24/10/2024 directed this Commission to decide the application for suspension of sentence in accordance with law within seven working days from the date of receipt of order.
9. As the matter was already heard on delay condonation application on 10/10/2024 and it was closed for order on 28/10/2024 but for want of Coram, matter is adjourned to 05/11/2024 for order on delay condonation application it needs to decide with priority.
10. So far as aspect of delay of 530 days is concerned, we reject the application for condonation of delay. Hence, we pass the following order.
ORDER
- Application for condonation of delay of 530 days hereby by rejected.
- Consequently, the appeal stand disposed and subsequently the application for suspension of sentence and grant of bail, also disposed of.
- Copy of order be supplied to both the parties, free of cost.
