HON’BLE JUSTICE SRI PRABIR KUMAR SAMANTA, PRESIDENT.

Appellant through Mr. Abhijit Gangopadhyay, the Ld. Advocate and Respondent through Mr. Debapriya Gupta, the Ld. Advocate along with Ms. Abha Alluy, the Ld. Advocate are present.  The Ld. Advocate for the Respondent undertakes to file Vokalatnama on the next date.

This is an application for condonation of delay in filing this appeal before this State Commission.  Initially the complaint was disposed of by the concerned Forum by judgement and order dated 10.01.2006.  The above appeal was filed on 20.08.2006 much after the expiry of the prescribed period of limitation.  The said appeal was not accompanied by any application whatsoever for condonation of delay.  However, the State Commission took up the appeal for hearing on merits without considering the fact of filing of the appeal after the expiry of the period of limitation.  The appeal was ultimately allowed by setting aside the said order dated 10.01.2006 passed by the District Forum.  Respondent – Complainant accordingly moved an application before the Hon’ble High Court under Article 227 of the Constitution of India by challenging the said order of the State Commission upon contention that the aforesaid appeal before the State Commission being barred by limitation, the State Commission ought not to have decided the same on merits without condoning the delay in filing the above appeal.  The Hon’ble High Court upon contested hearing has disposed of the said revisional application by setting aside the order of the State Commission and by granting leave to the O.P. – Appellant to file an application for condonation of delay before the State Commission with the observations as under :

“It is no doubt true that the first proviso to Section 15 of the said Act authorizes the Appellate Forum to entertain an appeal, even after the expiry of the period of limitation.  The said proviso provides that, if the appellate forum is satisfied that there was sufficient cause for non-filing of the appeal within the period of limitation then only appeal can be accepted on condonation of delay.  The said proviso, thus, makes it clear that no appeal can be accepted beyond the prescribed period of limitation unless the Court is satisfied with regard to the explanation for such delay.  No such explanation was given by the appellant in the instant case.  The learned Appellate Forum also proceeded on the basis, as if the appeal was within the time, as such the Appellate Forum also did not make any effort to find out as to whether reasons for the delay has been explained or not.  Such an approach of the learned Appellate Forum is absolutely contrary to the provision of Section of the said Act which does not provide that limitation should be reckoned from the date of supply of the certified copy, even though it is accepted that such certified copy is given by the Tribunal without any application from the party.  When a party is aggrieved by any order of the Forum, he must approach the Forum for supply of the certified copy of the order within 30 days, as 30 days is the time prescribed for filing an appeal before the Appellate Forum.  that apart, when the executability of the order of the Forum matured on expiry of thirty days from the date of the order, the appellant should have shown much promptness in this matter.

Even assuming that this Court accepts the submission of Mr. Gangopadhyay that his client could not file the said appeal within thirty days from the date of the order passed by the learned District Forum due to non-availability of the certified copy thereof, but still then, this Court finds that no explanation was given for the delay of twenty-seven days in filing the said appeal, which was caused subsequent to obtaining the certified copy of the said order.

As such, this Court holds that the learned Appellate Forum, ought not to have entered into the merit of the said time barred appeal without condoning the delay.

Under such circumstances, the order which is impugned in the instant revisional application is set aside.

Mr. Gangopadhyay, prays for leave to file an application for condonation of delay before the Appellate Forum.  In my view, no leave is necessary for filing such an application before the appellate forum.

It is, however, made clear that in the event the Insurance Company, namely, the opposite party herein, files any competent application for condonation of delay before the learned Appellate forum within a week from date, the learned Appellate Forum will consider the same on its own merit as early as possible after giving an opportunity of hearing to the petitioner herein.

          The revisional application is, thus, disposed of.

In view of the disposal of this revisional application in the manner as aforesaid, no further order need be passed on the petitioner’s application for vacating the interim order which was passed by this Court on 13^th January, 2008.  The said application is, thus, disposed of.

It is, however, clarified that the interim orders which were passed in this revisional application stands vacated”.

Pursuant to the direction as above given by the Hon’ble High Court the instant application for condonation of delay has been filed by the O.P. – Appellant before this State Commission.  It has been stated in the above application that the Ld. Advocate who was engaged before the District Forum did not inform the O.P. – Appellant the fact of disposal of the complaint case by a judgement and order dated 10.01.2006.  The O.P. – Appellant came to know of the same only on 15.05.2006 when a notice was served upon the O.P. – Appellant by the Complainant.  It has been stated therein that the O.P. – Appellant after having such knowledge of the aforesaid impugned order dated 10.01.2006 instructed the said Ld. Advocate to take steps for protecting the interest of the O.P. – Appellant, but unfortunately the said Ld. Advocate failed to take any such steps.  Surprisingly in the above explanation it has nowhere been stated as to when and how such instruction had been given by the O.P. – Appellant to the said Ld. Advocate.  It has also been stated in the above application that the O.P. – Appellant thereafter received a notice of show-cause on 14.07.2006 issued by the executing court.  After receipt of such notice the O.P. – Appellant further instructed the said Lawyer to prefer an appeal and this time the Ld. Advocate obtained the certified copy of the impugned order on 01.08.2006 and thereafter filed the appeal on 28.08.2006. 

The explanation as above given by the O.P. – Appellant in the above application give rise to the natural doubt in the minds of the State Commission as to the veracity of the statement made against the Ld. Advocate.  Because the above explanation is completely silent as to the date/time and the manner in which such instruction was given to the Ld. Advocate.  It is also more interesting to note that the same request that was made by the O.P. – Appellant to the said Ld. Advocate after receipt of the notice of show-cause issued by the executing court was complied with by him and certified copy of the impugned order was immediately applied for and obtained by him on 01.08.2006.  This particular fact strengthens an impression that no instruction had been given by the O.P. – Appellant to the said Ld. Advocate after the O.P. – Appellant came to know on 15.06.2006 of the fact of disposal of the complaint case by a judgement and order dated 10.01.2006.  Such view is taken in the absence of disclosure of the particular dates and the manner in which such instructions were given by the O.P. – Appellant to the said Ld. Advocate. 

It may further be stated that no explanation as to the period from 01.08.2006 till the date of filing of appeal on 28.08.2006 has also been given in the above application.  It is to be noted that on the date when the certified copy was obtained by the Ld. Advocate for the O.P. – Appellant the appeal was barred by limitation.  Knowing such fact no explanation whatsoever has been given by the O.P. – Appellant in the above application for the said period from 01.08.2006 till 28.08.2006. 

Mr. Gangopadhyay, the Ld. Advocate appearing on behalf of the Appellant in support of the above application has cited a decision of the Hon’ble Supreme Court in the case of State of Nagaland – vs. – Lipok Ao and Others reported in (2005) 3 SCC 752.  In the said decision the words “sufficient cause” have been interpreted by the Hon’ble Supreme Court.  It has been held that expression “sufficient cause” should be considered with pragmatism in a justice-oriented approach rather than the technical detection of sufficient cause for explaining every day’s delay.  Having regard to considerable delay of procedural red tape in the decision making process of the Govt., certain amount of latitude is permissible.  The State is an impersonal machinery working through its officers or servants.  Hence, it cannot be put on the same footing as a individual.  We have carefully considered the said decision of the Hon’ble Supreme Court in the perspective of the facts and circumstances of the case in hand.  The explanation for the delay in filing the above appeal has not been given on the ground that the Appellant being a Corporate organization had to go through a bureaucratic process and rely upon its officers and staffs for the purpose of filing of the appeal and as such there was such delay in filing the above appeal.  On the contrary a firm stand has been taken by the O.P. – Appellant that it had acted soon after it came to know of the order of the District Forum by giving instruction to its Ld. Advocate who failed to comply with the instruction of the O.P. – Appellant.  The entire blame has been put upon the shoulder of the Ld. Advocate without disclosing his name and the date and manner in which such instructions were given to its Ld. Advocate.  Interestingly the said Ld. Advocate was retained and entrusted to obtain the certified copy after receipt of the said show cause notice and file the appeal.  We are, therefore, of the clear view that the aforesaid cited decision does not comply in the facts and circumstances of this case. 

Mr. Gangopadhyay having faced with such situation submitted before us that this application should be considered sympathetically for the purpose of consideration of delay.  We are unable to accept such contention of Mr. Gangopadhyay.  In view of the explanation as above given in the above application, we are of the opinion that the O.P. – Appellant has not come forwardwith clean hands and disclosed the real circumstances under which the delay in filing the appeal had occasioned.   On the other hand it has filed the above application for condonation of delay by putting the entire blame upon shoulder of the Ld. Advocate to cover up its own laches and negligence.  Any lenient and sympathetic view on facts without foundation is impermissible.  That apart, the decision of the Hon’ble Supreme Court in the case of D. Gopinathan Pillai – vs. – State of Kerala and Another reported in (2007) 2 SCC 322 cited on behalf of the Complainant – Respondent has clearly laid down the law relating to the condonation of delay that it cannot be condoned merely on sympathetic ground when mandatory provision not complied with and delay not properly, satisfactorily and convincingly explained. 

For all the reasons as aforesaid we do not find any merit in the above application for condonation of delay.  The same is accordingly dismissed.  The appeal shall accordingly stand dismissed as being barred by limitation.  The prayer for stay of operation of this order is considered and rejected.