HON’BLE MR. JUSTICE MANOJIT MANDAL, PRESIDENT

1. This appeal has been filed against the order dated 10.08.2022 passed by the Learned District Consumer Disputes Redressal Commission, South 24 Parganas at Baruipur in connection with consumer case no. CC/2/2022.

2. Along with the appeal the application for condonation of delay has also been filed by the appellants seeking the following reliefs :-

“it is therefore prayed before your Honor to kindly condone the delay of 51 days and to hear the appeal on merits and to pass such further order or orders as your Honor may deem fit and proper.”

3. We have heard the Learned Advocate appearing for the appellants on the application for condonation of delay and also carefully perused the record. The Learned Advocate appearing for the appellants submits that the appellants did not receive the notice and have failed to contest the consumer case being No. CC/2/2022. He has further submitted that there is some delay in filing the instant appeal and the appeal was caused due to the appellants never received the notice of the complaint case. He has further submitted that Track Consignment Report filed by the complainants proves that there was insufficient address. He has further submitted that the delay should be condoned for the interest of justice as the complaint case is premature. He has further submitted that the delay application filed by the complainants should be allowed and the appeal should be admitted.

4. On the other hand, Learned Advocate appearing for the respondents / complainants (appeared and) filed written objection against the application for condonation of delay but on the date of hearing the application for condonation of delay, the respondents / complainants were found absent. As such, the application for condonation of delay was heard ex parte.

5. Having heard the Learned Advocate appearing for the appellants and on perusal of the record it appears to us that the office has submitted a report that this appeal has been filed with a delay of 53 days.

6. It also appears to us that the judgment of this case was passed on 10.08.2022 and the present appeal has been filed on 16.11.2022.

7. Now, we shall have to consider as to whether the application for condonation of delay should be allowed.

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

“41. 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 within that period:

Provided further that 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.”

9. On perusal of the aforesaid provision it is clear to us that the appeal against the order should be preferred within a period of 45 days from the date of order.

10. On perusal of the record produced before us it is clear that the impugned order was passed on 10.08.2022 and the present appeal was filed on 16.11.2022 i.e. after a delay of 53 days. The office has also submitted a report before this Commission that this appeal has been filed with a delay of 53 days.

11. In order to condone the delay of the said 53 days, the appellants have 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”.

12. We also deem it appropriate to refer to Anil Kumar Sharma vs. United Indian Insurance Co. Ltd. and Ors. reported in IV (2015) CPJ 453 (NC), wherein the Hon’ble NCDRC held as under :-

“12. ………….. we are not satisfied with the cause shown to justify the delay of 590/601 days. Day to day delay has not been explained. Hon’ble Supreme Court in a recent judgment of Anshul Aggarwal v. New Okhla Industrial Development Authority, IV (2011) CPJ 63 (SC) has held that while deciding the application filed for condonation of delay, the Court has to keep in mind that 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 the appeals and revisions, which are highly belated are entertained.”

13. From the aforesaid dicta of the Hon’ble Apex Court and the Hon’ble National Commission, it is clear that ‘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 and applicant 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.”

14. The Hon’ble National Commission in a case being No. / revision petition No. 438 of 2021 (HDFC Bank Ltd. Vs. Deepak Goyal) has pronounced that :-

“Be that as it may, ordinarily we tend to adopt a liberal approach on the aspect of considering the point of condonation of delay and lean to take an indulgent view towards the side who seeks such condonation. It is for the reason that we prefer that a matter be decided on merits rather than closed at the threshold stage i.e. on the ground of delay but that does not imply that we may ever ride roughshod over the statutory requirement regarding the law of limitation wherever it has been provided by the legislature in its wisdom. It does not need much elaboration to state that when the period of limitation expires it simultaneously gives rise to a right which accrues to the other side and the other side cannot be divested of its accrued right for no adequate reason, that is why, whenever there is a delay, and whenever condonation on that aspect is sought, by either side, it has to discharge the onus of showing such factual basis from which may emanate the convincing grounds relying upon which such delay may be condoned. It goes without saying that such explanation has to be genuine and not an explanation just for the sake of explanation. Anything and everything said to bridge up a yawning gap of delay is not to be termed as legitimate explanation, which has to be sincere, honest and persuasively adequate and worthy of credence.”

15. Reverting to the materials available before us para nos. 2,3,4 & 5 of the application for condonation of delay is explanation given by the appellants for  the delay caused in filing the appeal. To explain the said delay, the appellants have stated in their said petition that no notice was served upon the appellants / opposite parties. As such, the appellants / opposite parties have failed to contest the case and ex parte order was passed against the appellants. As such, there is a delay in filing the appeal.

16. Learned Advocate appearing for the appellants has drawn the attention of this Commission to the Track Consignment Report where the postal authority made an endorsement with the remark ‘insufficient address’.

17. We fail to accept the case of the appellants by keeping the memo of appeal and keeping the complaint case side by side it appears to us that the address of the appellants as mentioned in the memo of appeal and the address mentioned in the complaint case are same and identical. Therefore, we may conclude that notice upon the opposite parties have been sent in the correct address and it must be presumed that the notice have been made effective.  So, the plea as taken by the appellants is not convincing and believable at all and the said plea prima facie to have been made with the intention to mislead the Commission and to get the condonation petition allowed at the admission stage itself.

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

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

20. In a recent judgment, the Hon’ble Supreme Court observed that the condonation of delay would depend on the background of each and every case; and routine explanation would not enough. The Hon’ble Supreme Court in University of Delhi Vs. Union of India in Civil Appeal Nos. 94889489 of 2019 arising out of SLP (Civil) Nos. 55815582 of 2019 decided on 17/12/2019 has held as under :-

“The consideration for condonation of delay would not depend on the status of the party namely the Government or the public bodies so as to apply a different yardstick but the ultimate consideration should be to render even handed justice to the parties. Even in such case the condonation of long delay should not be automatic since the accrued right or the adverse consequence to the opposite party is also to be kept in perspective. In that background while considering condonation of delay, the routine explanation Page 24 of 34 would not be enough but it should be in the nature of indicating “sufficient cause” to justify the delay which will depend on the backdrop of each case and will have to be weighed carefully by the Courts based on the fact situation

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That apart when there is such a long delay and there is no proper explanation, laches would also come into play while noticing as to the manner in which a party has proceeded before filing an appeal”.

21. Moreover, it appears to us that there is no whisper in the application for condonation of delay about the date while he came to know about the filing of the complaint case and about the order passed by the Learned District Commission. So, the submission of Learned Advocate appearing for the appellants is nothing but an attempt to mislead the Commission.

22. In view of the above, we find no sufficient ground to condone the inordinate delay of about 53 days. The present appeal is nothing but an abuse of process of law.

23. The application for condonation of delay is accordingly dismissed.

24. Accordingly, the appeal is dismissed being barred by limitation.