HON’BLE MR. JUSTICE MANOJIT MANDAL, PRESIDENT

1. This appeal has been filed under section 41 of the Consumer Protection Act, 2019 by the appellants against the order dated 22/03/2023 passed by the Learned District Consumer Disputes Redressal Commission, Kolkata, Unit – IV ( in short, ‘the District Commission’) in connection with consumer case No.  CC/34/2021.

2. Along with the appeal an application for condonation of delay has been filed by the appellants. The office has submitted a report that this appeal has been filed with a delay of 124 days.

3. Heard the Learned Advocate appearing for the parties over the application for condonation of delay and carefully perused the application for condonation of delay and its written objection and relevant documents.

4. Having heard the Learned Advocate appearing for the appellants and on perusal of the record and the application for condonation of delay and its written objection thereto it appears to me that in the application the reason for the delay in filing of the appeal is that the appellant preferred the review application against the impugned order dated 22/03/2023 and the said application was dismissed on 20/07/2023.

5. Another ground for condonation of delay is that the appellants instructed through the engaged Advocate for preferring the appeal against both the judgment and the order and after preparation of the draft appeal, the same was sent to the Kolkata office of the appellants for approval. Due to overburden with various such drafts to be approved there is a delay for approval of the draft copy of the appeal. Upon perusal of the record and the application for condonation of delay it appears to me that after immediate disposal of the review application the appellants have not filed the present appeal. There is a delay of 50 days in filing the instant appeal under hearing after disposal of the review application. To explain the said delay of 50 days the appellants have stated that due to overburden by the head office there is a delay for approval of the draft copy. I fail to accept such contention of the appellants. I think that the said grounds are not satisfactory, reasonable and believable. I think that the appellants have filed the present appeal before this Commission only after the filing of the execution application. The submission of the Learned Advocate appearing for the appellants is not believable and acceptable and the said submission of the Learned Advocate for the appellants is nothing but an attempt to mislead the Commission.

6. I think that the appellant / opposite party No. 4 has filed the instant appeal along with the application for condonation of delay only to get rid from the execution case. So, the cause shown by the appellant is not sufficient, believable and acceptable.

7. The Hon’ble Apex Court in Ram Lal and Ors.  – Vs. Rewa Coalfields Limited, AIR 1962 Supreme Court 361 has observed as under :-

“It is, however, necessary to emphasize that even after sufficient cause has been shown a party is not entitled to the condonation of delay in question as a matter of right. The proof of a sufficient cause is a discretionary jurisdiction vested in the Court by S.5. If sufficient cause is not proved nothing further has to be done; the application for condonation has to be dismissed on that ground alone. If sufficient cause is shown then the Court has to enquire whether in its discretion it should condone the delay. This aspect of the matter naturally introduces the consideration of all relevant facts and it is at this stage that diligence of the party or its bona fides may fall for consideration; but the scope of the enquiry while exercising the discretionary power after sufficient cause is shown would naturally be limited only to such facts as the Court may regard as relevant.”

8. The Hon’ble Supreme Court in another case of R.B. Ramlingam vs. R.B. Bhavaneshwari, I (2009) CLT 188 (SC), has stated that a court has to apply the basic test while dealing with the matters relating to condonation of delay, whether the Petitioner has  acted with reasonable diligence or not. The court has held as under :

“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.”

9. In another case reported in (2011) 14 SCC 578 (Anshul Aggarwal vs. New Okhla Industrial Development Authority ),  the Hon’ble Apex has held that the special nature of the Act has to be kept in mind while dealing with the special period of limitation prescribed therein.

10. The Hon’ble Supreme Court has held in a case reported in 2022 Livelaw (SC) 430 (The State of U.P. v. Satish Chand Shivhare ) that once an appeal is found to be barred by limitation there can be no question or obligation of the Court to consider the merits of the case of the appellant.

11. In another case reported in II (2014) CPJ 570 (NC) – (Regional Provident Fund Commissioner v. 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.

12. The Learned Advocate appearing for the appellant during his argument has relied on the judgments reported in 1987 SCC OnLine Bom 32, (1988) 2 Supreme Court Cases 142, (1987) 2 Supreme Court Cases 107 and an unreported judgment passed by the Hon’ble National Commission in Revision Petition No. 1562 of 2011. However, reliance on these four judgments in the adjudication of the appeal, facts being at variance, would be misplaced.

13. In view of the above decisions and under these facts and circumstances, I find no sufficient ground to condone the inordinate delay of about 124 days. The present appeal is nothing but an attempt to abuse the process of law.

14. The application for condonation of delay is accordingly dismissed. The appeal is, thus, dismissed being barred by limitation without being admitted.

15. The appeal is, thus, disposed of accordingly.