This appeal has been filed by M/s. A.S.R. Properties, against the order dated 30.12.2016 of the State Consumer Disputes Redressal Commission, West Bengal, (in short ‘the State Commission’) passed in CC No.344/2015.

2.      Brief facts of the case are that the appellant firm M/s. A.S.R. Properties entered into development agreement with the respondent/complainant and as per this agreement appellants were to get the building plan approved within one year.  The complaint was filed just after one year alleging deficiency against the appellants. Appellant No.2 and appellant No.3 are the partners of the partnership firm appellant No.1 i.e. M/s. A.S.R. Properties.  The State Commission proceeded ex-parte against the appellants/opposite parties and finally passed the following order on 30.12.2016:-

“That the instant complaint is allowed exparte with a cost of Rs.10,000/-.

The OPs are jointly and severally directed to make payment of Rs.3,00,000/- towards compensation for harassment and mental agony within one month from date, otherwise the amount shall carry an interest @ 9% p.a. from this date till its full realisation.”

3.      Hence the present appeal.

4.      Heard the learned counsel for the appellants at the admission stage.  The learned counsel mentioned that the appeal could not be filed in time as the appellant No.3, who is wife of appellant No.2 was suffering from cancer and appellant No.2 was busy in her treatment and could not take care of the present litigation.  Learned counsel further stated that appellant No.2 and appellant No.3 are the partners of partnership firm appellant No.1 and both of them were pre-occupied with the disease of appellant No.3. Hence the appeal could not be filed in time. It has been prayed to condone the delay of 562 days as mentioned in the application for condonation of delay.

5.      It was further stated that the appellants have very strong case on merits and could not get any opportunity to present their version before the State Commission and therefore, the appeal should be allowed for the sake of justice.  It was stated that after the main development agreement dated 29.08.2014 was executed, there was another agreement signed between the parties dated 17.11.2014 wherein the responsibility for obtaining the approvals of building plan was shifted to the respondent/complainant.  However, this agreement dated 17.11.2014 was not filed before the State Commission by the complainant.   As the appellants could not get any opportunity to file their reply before the State Commission, this agreement was not brought to the notice of the State Commission.  Hence, the complaint of the complainant has been allowed and therefore it is necessary to decide the appeal of the appellants on merits.  

6.      I have given a thoughtful consideration to the arguments advanced by the learned counsel for the appellants.  The present appeal has been filed with a delay of 536 days as mentioned by the Registry and the appellants have filed an application for condonation of delay for condoning the delay of 562 days.  The reason mentioned in this application is as follows:-

“3.  It is stated that since Appellant No.3, being the wife of Appellant No.2 and also one of the partner to appellant No.1 firm, was suffering from several deceases including cyst in the ovary since 2015 till the beginning of 2018, therefore, the Appellants were not in a position to contest the present matter before the Hon’ble State Commission or to seek appropriate legal remedies available to them within the stipulated time period.  Thereafter, the appellants took sometime for accumulating the expenses for filing the present matter and thereafter filed the present matter.  Hence, there has been a delay. 

7.      From the above, it is clear that even if one partner i.e. appellant No.3 was suffering from cancer, Appellant No.2, who was also a partner should have taken due care to contest case before the State Commission and to file the appeal in time.  In the application for condonation of delay the appellants have not clarified as to how did they get the information of the exparte order passed by the State Commission.  It was orally stated by the learned counsel for the appellants that the order of the State Commission was received by the appellants in January, 2017 and the appeal has been filed in August, 2018.  Once it is accepted that exparte order dated 30.12.2016 passed by the State Commission was received by the appellant No.2 in January, 2017 he should have taken care to file the appeal in time if he was really aggrieved.  It is clear that no step was taken to file the appeal before this Commission and appeal has been filed after lapse of 536 days.  The main opposite party was the partnership firm/ Appellant No.1 and there must have been some employees working under the firm. Even if there is no employee, it was the duty of the partner appellant No.2 to have taken steps to file the appeal in time before this Commission.  Consumer disputes are to be decided in time and they cannot be allowed to linger on for indefinite period.  Hon’ble Supreme Court in Anshul Aggarwal vs. New Okhla Industrial Development Authority, IV (2011) CPJ 63 (SC) has laid down that;

“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 for filing appeals and revisions 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.”

8.   Decision of Anshul Aggarwal (Supra) has been reiterated in CicilyKallarackal Vs. Vehicle Factory, IV (2012) CPJ 1(SC) 1, wherein Hon’ble Supreme Court observed;

“4. This Court in Anshul Aggarwal v. NOIDA, (2011) CPJ 63 (SC) has explained the scope of condonation of delay in a matter where the special Courts/ Tribunals have been constituted in order to provide expeditious remedies to the person aggrieved and Consumer Protection Act, 1986 is one of them. Therefore, this Court held that while dealing with the application for condonation of delay in such cases the Court must keep in mind the special period of limitation prescribed under the statute (s).

  5.    In the instant case, condoning such an inordinate delay without any sufficient cause would amount to substituting the period of limitation by this Court in place of the period prescribed by the Legislature for filing the special leave petition. Therefore, we do not see any cogent reason to condone the delay.         

6.      Hence, in the facts and circumstance of the case as explained hereinabove, we are not inclined to entertain these petitions. The same are dismissed on the ground of delay.”

9.      In R.B. Ramlingam Vs. R.B. Bhavaneshwari, 2009 (2) Scale 108, Supreme Court observed:-

“We hold that in each and every case the Court has to examine whether delay in filing the special appeal 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 diligence in the prosecution of his appeal/petition”.

10.    The above quoted authoritative judgments of the Hon’ble Supreme Court are clearly applicable in the present case and negligence and deliberate inaction are imputable to the appellants in filing the present first appeal.  As the reason given for delay in filing the appeal is not convincing and the cause shown is not sufficient to condone the huge delay of 536 days, accordingly, the application for condonation of delay is dismissed.  Consequently, the First Appeal No.1301 of 2018 is also dismissed.