Today is fixed for hearing of this M.A. case and for filing W/O by the op.

Both sides are found present.

W/O has been filed by the ops of this M.A. case. Copy served. Let it be kept with the record.

Heard ld. Advocates of both sides. Considered submission.

Perused the M.A. application and W/O which has been filed by the op against the said M.A. application.

It is the main point of contention and argument on the part of the applicant that the applicant is intending to contest the C.C. case no. 182 of 2023 and W/V has already been filed but some delay has been caused due to illness of the Advocate of complainant.

On the other hand, it is the main point of submission of the op that there is delay of 76 days in the matter of filing W/V and no explanation for delayed filing of W/V has been stated. It is also submitted by the op that only by filing one medical certificate the applicant cannot escape from their liability of giving explanation of delayed filing of the W/V. Op has prayed before this District Commission for dismissing this M.A. application with heavy cost. After going through the materials of the case record this District Commission finds that the op appeared in C.C. case no. 182 of 2023 by filing v.nama through Soumi Bhattacharya, Advocate on 4.12.2023 and accordingly this District Commission by filing the statutory provisions is giving opportunity to the op for filing W/V within 45 days from the date of service of notice (22.11.2023). But facts remain that on 22.11.2023 the op prayed time in the matter of filing W/V but in view of the statutory provisions the said prayer for granting time to file W/V was rejected by this District Commission. The said order no. 5 dt. 5.1.2024 has neither been challenged nor any prayer has been submitted before the higher Forum for setting aside the said order. Inspite of filing any review against the said order dt. 5.1.2024 the applicant has filed this M.A. application for setting aside ex parte order dt. 5.1.2024 after long delay of 76 days. In order to substantiate the ground of delay one medical certificate of the ld. advocate has been filed but that medical certificate is not going to depict that ld. Advocate for the op had been suffering from prolonged illness. Moreover, it is also reviewed that there is no explanation of delay of 76 days in the matter of filing W/V. This conduct of the op is clearly reflecting that there is a serious fault on the part of the op. Moreover, in view of decision of Hon’ble Apex Court passed in the case of New India Assurance Company vs. Hilli Multipurpose Cold Storage Pvt. Ltd., Hon’ble Apex Court has been pleased to observe that no time can be granted to the op/ respondent in the matter of filing W/V after 45 days. In view of the decision of Hon’ble Apex Court the prayer of the applicant as the op of C.C. case no. 182 of 2023 for setting aside ex  parte order cannot be allowed.

In the result, it is accordingly,

ordered

that the M.A. application no. 30 of 2024 be and the same is dismissed on contest.

No order is passed as to costs.

Let this case record be tagged with the C.C. case no. 182 of 2023.