HON’BLE MR. JUSTICE MANOJIT MANDAL, PRESIDENT

1. This appeal has been filed against the order dated 15.09.2022 passed by the Learned District Consumer Disputes Redressal Forum, Kolkata, Unit – II (now, ‘the District Commission’) in connection with consumer case No. CC/270/2020 titled Siddhartha Das Vs. Director / Manager / Head, Kolkata OPD SRL Limited, Indira IVF Hospital Pvt. Ltd.

2. Along with the appeal an application for condonation of delay has been filed by the appellant.

3. I have heard the Learned Advocate appearing for the appellant on the application for condonation of delay and also carefully perused the record.

4. The Learned Advocate appearing for the appellant has submitted that the appellant herein was not made as opposite party properly. The complaint petition was never served upon the appellant herein. As such, the order under challenge in appeal was passed ex parte on 15.09.2022.

5. He has further urged that the appellant came to know about the instant complaint case for the first time only when the Learned Advocate for the complainant / respondent herein one Mr. Kallol Guha Thakurata by an email dated 12.12.2022 at 14.45 hours communicated the final order dated 15.09.2022 of the complaint case being No. CC/270/2020.

6. He has further urged that the appellant made immediate enquiry in this matter and contacted his Learned Advocate on 13.12.2022 for proper steps and advised in the above complaint case. As per advice of the Learned Advocate, the appellant applied for certified copy of the impugned order.

7. He has further urged that the complainant / respondent herein had impleaded the Director / Manager / Head, Kolkata OPD SRL Limited as party in the complaint case being No. 270/2020 served the demand notice dated 07.01.2020 as well as the complaint petition on 03.04.2021 upon the Director / Manager / Head, Kolkata OPD SRL Limited as would be evident from the postal track report. The postal notice has never reached the appellant in connection with the above complaint case. Due to non service of notice the appellant failed to contest the case and the appellant herein has been denied the opportunity of hearing. So, the Learned Advocate for the appellant has prayed for condonation of delay in filing the instant appeal and to admit the appeal.

8. Having heard the Learned Advocate appearing for the appellant and on perusal of the record it appears to me that the office has submitted a report that this appeal has been filed with a delay of 340 days.

9. It also appears to me that the judgment of this case was passed on 15.09.2022 and the present appeal has been filed on 06.10.2023. Now, I shall have to consider as to whether the application for condonation of delay should be allowed or not.

10. To adjudicate this issue I deem it appropriate to refer section 41 of the Consumer Protection Act, 2019 which runs as follows :-

“Any person aggrieved by an order made by the District Commission may prefer an appeal against such order to the State Commission on the grounds of facts or law within a period of forty-five days from the date of the order, in such form and manner, as may be prescribed:

Provided that the State Commission may entertain an appeal after the expiry of the said period of forty-five days, if it is satisfied that there was sufficient cause for not filing it withinthat period:

Provided furtherthat no appeal by a person, who is required to pay any amount in terms of an order of the District Commission, shall be entertained by the State Commission unless the appellant has deposited fifty per cent of that amount in the manner as may be prescribed:

Provided also that no appeal shall lie from any order passed under sub-section (1) of section 81 by the District Commission pursuant to a settlement by mediation under section 80.”

11. On perusal of the aforesaid statutory provision it is clear to me that the appeal against the order should be preferred within a period of 45 days from the date of the order. On perusal of the record produced before me it is clear that the impugned order was passed on 15.09.2022 and the present appeal was filed on 06.10.2023 i.e. after a delay of 340 days. The office has also submitted a report before this Commission that this appeal has been filed with a delay of 340 days.

12. In order to condone the delay of the said 340 days the appellant has to satisfy this Commission that there was sufficient cause for preferring the appeal after the statutory period. The term “sufficient cause” has been explained by the Hon’ble Apex Court in Basawaraj and Ors. V. The Special Land Acquisition Officer reported in AIR 2014 SC 746. The relevant paras of the aforesaid judgment are reproduced as under :-

“9.Sufficient cause is the cause for which Defendant could not be blamed for his absence. The meaning of the word “sufficient” is “adequate” or “enough”, inasmuch as may be necessary to answer the purpose intended. Therefore, the word “sufficient” embraces no more than that which provides a platitude, which when the act done suffices to accomplish the purpose intended in the facts and circumstances existing in a case, duly examined from the view point of a reasonable standard of a cautious man. In this context, “sufficient cause” means that the party should not have acted in a negligent manner or there was a want of bona fide on its part in view of the facts and circumstances of a case or it cannot be alleged that the party has “not acted diligently” or “remained inactive”. However, the facts and circumstances of each case must afford sufficient ground to enable the Court concerned to exercise discretion for the reason that whenever the Court exercises discretion, it has to be exercised judiciously. The appellant must satisfy the Court that he was prevented by any “sufficient cause” from prosecuting his case, and unless a satisfactory explanation is furnished, the Court should not allow the application for condonation of delay. The court has to examine whether the mistake is bona fide or was merely a device to cover an ulterior purpose”.

13. Reverting to the materials available before me para Nos. 3 to 10 of the appellant for condonation of delay is the explanation given by the appellant for the delay caused in filing the instant appeal. To explain the said delay the appellant has stated in para No. 3 clearly and categorically that the appellant / petitioner herein was not made as opposite party in the complaint petition and the petition of complaint was never served upon the appellant.

14. Further contention of the appellant is that the complainant / respondent herein had impleaded the Director / Manager / Head, Kolkata OPD SRL Limited as party in the complaint case being No. 270/ 2020 and served the demand notice dated 07.01.2020 as well as the complaint petition on 03.04.2021 upon the Director / Manager /Head, Kolkata OPD SRL Limited as would be evident from the postal track report.

15. On perusal of the record it appears to me from the petition of complaint as well as from the copy of the impugned order that the Director / Manager / Head, Kolkata OPD SRL Limited, Indira IVF Hospital Pvt. Ltd., 3^rd floor, Pataka House, 57B, Mirza Ghalib Street, P.S. Park Street, Kolkata – 700 016 was made opposite party in this case. Test report in respect of Chumki Das ( running page No. 39) discloses that the said report was issued by Kolkata OPD SRL Limited, Indira IVF Hospital Pvt. Ltd., 3^rd floor, Pataka House, 57B, Mirza Ghalib Street, P.S. Park Street, Kolkata – 700 016.

16. Another test report in respect of Chumki Das (running page No. 40) also discloses that the said report was issued by Kolkata OPD SRL Limited, Indira IVF Hospital Pvt. Ltd., 3^rd floor, Pataka House, 57B, Mirza Ghalib Street, P.S. Park Street, Kolkata – 700 016.

17. Test report in respect of Siddhartha Das (running page No. 41) also discloses that the said report was issued by Kolkata OPD SRL Limited, Indira IVF Hospital Pvt. Ltd., 3^rd floor, Pataka House, 57B, Mirza Ghalib Street, P.S. Park Street, Kolkata – 700 016.

18. Another test report in respect of Chumki Das (running page No. 43) also discloses that the said report was issued by Kolkata OPD SRL Limited, Indira IVF Hospital Pvt. Ltd., 3^rd floor, Pataka House, 57B, Mirza Ghalib Street, P.S. Park Street, Kolkata – 700 016.

19. Test reports dated 12.12.2016 (page No. 45), test report dated 12.12.2016 (page No. 46), test report dated 11.06.2017 ( page No. 47) also disclose  that the said reports were issued by Kolkata OPD SRL Limited, Indira IVF Hospital Pvt. Ltd., 3^rd floor, Pataka House, 57B, Mirza Ghalib Street, P.S. Park Street, Kolkata – 700 016.

20. Therefore, on consideration of the above noted documents it is clear that Kolkata OPD SRL Limited, Indira IVF Hospital Pvt. Ltd., 3^rd floor, Pataka House, 57B, Mirza Ghalib Street, P.S. Park Street, Kolkata – 700 016 is the same and identical and the appellant was made opposite party properly in the petition of complaint filed by the complainant / respondent in connection with consumer case No. 270/2020.

21. It may, therefore, be concluded that notice upon the appellant was duly served upon the appellant on 03.04.2021 in connection with the present complaint case. Therefore, on consideration of the said application for condonation of delay it appears to me that there was latches and negligence on the part of the appellant for preferring the instant appeal before this Commission. The plea taken by the appellant is not convincing and believable and the said plea, prima facie, appears to have been made with the intention to mislead the Commission to get the condonation petition allowed at the admission stage itself. Moreover, it appears to me that the appellant has not come before this Commission with clean hands.

22. In the result, submissions of the appellant that the appellant was not made party in the present complaint case and notice was not duly served upon him, is nothing but an attempt to mislead the Commission.

23. In view of the above, I find no sufficient ground to condone the delay of about 340 days. The present appeal is nothing but an attempt to abuse the process of law. The application for condonation of delay is accordingly dismissed.

24. The appeal is dismissed being barred by limitation without being admitted.

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

26. Let a copy of this order be sent to the Learned District Commission below at once.

27. Office to comply.