| STATE CONSUMER DISPUTES REDRESSAL COMMISSION | | WEST BENGAL | | 11A, Mirza Ghalib Street, Kolkata - 700087 |
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| First Appeal No. A/312/2023 | | ( Date of Filing : 04 Sep 2023 ) | | (Arisen out of Order Dated 18/05/2023 in Case No. CC/157/2021 of District South 24 Parganas) |
| | | | 1. REALMARK ORACLE PROJECT LLP | | 209 AJC BOSE ROAD, KARNANI ESTATE, 4TH FLOOR, ROOM NO. 170 B, P.S.- BENIAPUKUR, P.O.- CIRCUS AVENUE, KOLKATA | | KOLKATA | | WEST BENGAL | | 2. GAGGAN LOHIA | | 209, AJC BOSAE ROAD, KARNANI ESTATE, 4TH FLOOR, ROOM NO. 170 B, P.S. BENIAPUKUR, P.O. CIRCUS ROAD, KOLKATA | | KOLKATA | | WEST BENGAL |
| ...........Appellant(s) | |
| Versus | | 1. MRS. AVERI ROY & Another | | PARK RAO, SAHEBPARA, P.S. & P.O. SONARPUR, KOLKATA | | 24 PARAGANAS SOUTH | | WEST BENGAL | | 2. MR. DEBADRI ROY | | KARMAKAR PARA NOA PARA MAHESHTALA KOLKATA | | 24 PARAGANAS SOUTH | | WEST BENGAL |
| ...........Respondent(s) |
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| BEFORE: | | | | HON'BLE MR. JUSTICE MANOJIT MANDAL PRESIDENT | |
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| PRESENT: | ABHIK DAS, Advocate for the Appellant 1 | | | ABHIK KUMAR DAS, Advocate for the Appellant 2 | | | Debasish Biswas, Advocate for the Respondent 2 | | | Debasish Biswas,Ivan Roy, Advocate for the Respondent 2 | |
| Dated : 28 Aug 2024 |
| Final Order / Judgement | HON’BLE MR. JUSTICE MANOJIT MANDAL, PRESIDENT - The present appeal has been filed by the appellants against the respondents challenging the order dated 18/05/2023 passed by the Learned District Consumer Disputes Redressal Commission, South 24 Parganas at Baruipur ( in short, ‘the District Commission’) in connection with consumer case No. CC/157/2021.
- 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 64 days.
- Having heard the Learned Advocate appearing for the parties and on careful perusal of the record and the application for condonation of delay it appears to me that in the application the reasons for the delay in filing the appeal are that the appellant No. 2 Gagan Lohia was suffering from severe lower back pain for which he could not move properly and the doctor prescribed him to take bed rest unless and until his health condition improves.
- Another reason for the delay in filing the appeal is that the then Lawyer of the appellants was very much reluctant regarding guiding the appellants / opposite parties properly. The erstwhile Lawyer never advised the appellants / opposite parties to file appeal before the higher forum.
- Upon perusal of the prescriptions issued by Dr. R. N. Bhattacharjee (Annexure ‘A’) it appears to me that Dr. R. N. Bhattacharjee prescribed the appellant No. 2 to take bed rest for 45 days and to do MRI scan left spine but the record goes to show that the appellant has not filed the MRI report of the appellant No. 2 before this Commission. Another prescription issued by Dr. Mukesh Kochar, it appears to me that Dr. Kochar advised the appellant No. 2 to take bed rest and to do X-ray. But Dr. Kochar has not stated in his prescription about the place where the X-ray should be done. To prove that the appellant No. 2 was suffering from severe lower back pain for the reason he could not move, the appellants have not filed the MRI report and / or X-ray plate or report before this Commission. So, an adverse presumption may be drawn for non production of the said two reports of MRI scan report and X-ray report against the appellants.
- Learned Advocate appearing for the appellants has stated that the Learned Lawyer has not guided the appellants properly and never advised to file the appeal. But I find that since the Lawyer was reluctant to file the appeal and was reluctant to guide the appellants properly in spite of that, the appellants did not change the said erstwhile Advocate of the appellants for filing the present appeal in time.
- Under this facts and circumstances I hold that the reasons as stated by the appellants in the application for condonation of delay are not believable and acceptable. Therefore, the cause shown is not sufficient, convincing and believable.
- 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.” - 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 stand 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.” - In another case reported in (2011) 14 SCC 578 (Anshul Aggarwal vs. New Okhla Industrial Development Authority), the Hon’ble Apex Court 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.
- The Hon’ble Court has further held as under:
“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 Fora.” - In view of the above decisions and under these facts and circumstances, I find no sufficient ground to condone the inordinate delay of about 64 days. The present Appeal is nothing but an attempt to abuse the process of law.
- The application for condonation of delay is accordingly dismissed.
- The Appeal is, thus, dismissed being barred by limitation without being admitted.
- The Appeal is, thus, disposed of, accordingly.
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| | | [HON'BLE MR. JUSTICE MANOJIT MANDAL] | PRESIDENT
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