This appeal arises out of decision of the UP State Consumer Disputes Redressal Commission in a Misc. Petition as well as Execution Petition in CC No.10 of 1998. The Consumer Complaint was decided by the State Commission allowing the complaint seeking compensation against the OPs. 2. In the execution proceedings, arising from it, OP/Om Shipping Agencies, filed an application for recall of the judgment passed in the Consumer Complaint. In the State Commission, consideration of the main consumer complaint, filed on 12.2.1998, had proceeded ex-parte against the OP. Hence, an application was filed for recall of the order. On 13.3.2007, the State Commission dismissed the application for recall of the judgment and order of 14.7.2005 and decided to proceed with the execution case. 3. The appellants/OPs, have moved this Commission to set aside the impugned judgment and order of 14.7.2005 passed in CC No. 10 of 1998. The appeal, having been filed after rejection of the review application, was filed in this Commission on 11.4.2007. Therefore, a period of 21 months lies between the impugned order and the appeal, which needs an explanation. Under Section 19 of the Consumer Protection Act, 1986, a period of thirty days only, from the date of the order, is allowed for filing of appeal before the National Commission. The Section however, permits the National Commission to “entertain an appeal after the expiry of the said period of thirty days, if it is satisfied that there was sufficient cause for not filing it within that period”. We have perused the application for condonation of the long delay of 20 months. The case of the appellant is that he was ex-parte in the proceedings before the State Commission and therefore, came to know of the impugned order of 14.7.2005 only when a legal notice was received from the other party, M/s. Prabhat Exports on 6.2.2006. His counsel inspected the record on 27.2.2006 and discovered that an ex-parte judgment had been passed against them. On 27.3.2006 an application was moved before the State Commission for recall of the ex-parte judgment. The State Commission considered and rejected the same on 13.3.2007.
4. We do not see any merit in this explanation. For adjudication of disputes coming within its purview, the Consumer Protection Act, 1986 clearly prescribes the fora, before whom such disputes can be agitated. In the present case the jurisdiction of the State Commission was invoked and therefore, the next course available to the party aggrieved by the decision of the State Commission, was to move an appeal before the National Commission, under Section 19 of the Act. The Act does not give power to the State Commission to review its own decision. Therefore, even if it is accepted that the appellant came to know about the impugned order on 6.2.2006, immediately thereafter his appeal should have been filed before this Commission. The time spent by the appellant between 6.2.2006, when he claims to have learnt about the existence of the impugned order and 11.4.2007, when his appeal was actually filed before this Commission, was spent in seeking a remedy not permitted by the Act. Therefore, it cannot be said that he has ‘sufficient cause’, within the meaning of Section 19 of the Act. The appeal is therefore, liable to be dismissed on the ground of limitation alone.
5. The appellant had sought permission to amend memorandum of appeal, which is allowed on 28.9.2008. While in the original appeal the prayer was to set aside the order of the State Commission dated 14.7.2005, in the amended appeal it was extended to seek quashing of the order of 13.3.2007 as well. In the first, the main consumer complaint was decided and in the second the application to set it aside was rejected. It is quite obvious that the underlying purpose is to circumvent the problem of limitation arising from the date of the order of 14.7.2005. We do not permit it, for reasons already recorded.
6. We have perused the records of the case and heard the two counsels with reference to the grounds in the amended memorandum of appeal. Learned counsel for the appellants argued that the goods had reached the consignee and the complainant had received the payment and therefore there is no cause of action. This is an oversimplification of the issue, not borne out from the records of the case. The matter before the State Commission pertains to two shipments to the same consigning in two different invoices of 13.9.1995 and 11.12.1995, involving value of US $46174.87 and $41160.9, respectively. The complaint was not for the entire sum but only about un-received balance of $2174.87, together with financial consequences of delay in payment. We therefore reject this argument as it is far removed from the facts.
7. The amended memorandum of appeal repeatedly refers to the requirement of the US law under which a consignment has to be cleared within 30 days from arrival of the cargo. Failing this, the cargo is declared ‘abandoned cargo’ and goes under the control of the U.S. Customs. But, there is nothing in the memorandum to relate this requirement of the US law to the facts of the case. It is not the case of the appellants that there was any effort on their part to secure payment before delivery of the consignment as per the condition of the invoice, which stated clearly ‘120 days D.A. from B/L date against Bank guarantee’, in both the cases. It is not their case that having failed to secure payment, they had to release the consignment before expiry of the prescribed period of 30 days. On the contrary, appellants argue that—
“Because there are many modes of payment applicable, practiced and agreed between the buyer and the seller and the carrier or its agent had nothing to do with the style of payment and its modes and whether the payment is made or not.”
8. This argument completely ignores that the terms of delivery and payment had very clearly been spelt out in the Invoices raised by the consignor/respondent. The forwarding and shipping agencies had to ensure compliance with the same. Therefore, this argument has no merit and is rejected.
9. The main issue with the appellants is that they had no opportunity before the State Commission, before the impugned final order was passed on 14.7.2005. They claim that the existence of this ex party order came to their notice only when they received a legal notice sent on behalf of the complainant on 6.2.2006. We have perused the proceedings of the State Commission between 28.4.1998, when it first directed the parties to file the written statements by 7.8.1998 and 14.7.2005, when the judgment was pronounced. On 6.5.1999, the commission noted absence of the OPs and their representative and fixed ex party hearing for 19.7.1999. On that day, the Commission took note of the application seeking recall of the ex party order. On 5.12.2001, the Commission recalled the ex party order and allowed time till 12.8.2002 to file a written statement, imposing cost of Rs.1000. On 13.9.2002, noting the non-response and non-appearance on behalf of the OPs, the Commission again decided to proceed ex-party. Even when the matter was reserved on 10.12.2004 for orders, none appeared on behalf of the OPs. In this background, we find no substance in the plea that the judgment of 14.7.2005 should be set aside for being ex-party. The argument that the application for recall of the State Commission’s ex-party order of 6.5.1999 was filed by Allauddin of Bhadohi, who was not the party to the complaint and without any authorization from OP, does not carry any conviction as the appellant/OP was in no way going to be prejudiced by such an application. If at all, he could only benefit from it. Therefore, we find no substance in this ground also.
10. For the reasons discussed above, the appeal is dismissed for want of merit and the order of State Consumer Disputes Redressal Commission, Uttar Pradesh, in CC No.10 of 1998 is confirmed. No order as to costs.
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