Order No. 2 date: 15-05-2017

Sri Shyamal Gupta, Member

Today is fixed for passing order in respect of the delay condonation petition of the Appellant.

As regards delayed filing of the Appeal, it is stated that their erstwhile Ld. Advocate, who was looking after the complaint proceedings before the Ld. District Forum informed that the matter was fixed for ex parte hearing on 28-09-2016 and also informed that due to her illness, she would not be able to attend the Ld. District Forum any further.  Accordingly, Legal Manager of the Appellant handed over the case record along with all relevant documents to another Ld. Advocate on 30-09-2016 and instructed him to prepare a Memo of Appeal.  It is further stated that subsequently when the said Legal Manager contacted the newly appointed Ld. Advocate in the first week of September, 2016, the Ld. Advocate concerned informed that due to his ill health, he could not prepare the draft Memo of Appeal.  Further, the said Ld. Advocate also informed that he had misplaced the certified copy of the impugned order and other documents and asked the said Legal Manager to obtain another set of relevant documents.  Thereafter, when during the second week of March, 2017, the Legal Manager of the Appellants tried to contact the said Ld. Advocate, he came to know that the concerned Advocate expired in the third week of September, 2016.  So, the said official immediately informed the matter to the Head Office of the Appellants.  Thereafter, another Counsel was appointed and also fresh set of certified copies of documents were collected.  At last, the Appeal was filed on 03-04-2017.

We have heard the submission made by Ld. Advocates of both sides and perused the material on record.

It appears, in a bid to defend something which is otherwise indefensible; the Appellants have made a mess of everything.

It is claimed that the Legal Manager of the Appellants handed over case related papers to Subrata Mukherjee, Ld. Advocate, since deceased on 30-09-2016 and asked him to prepare a Memo of Appeal.  Question arises, while the impugned order was passed on 18-10-2016, how the Appellants could give such an instruction to their Ld. Advocate at that juncture itself. 

Again it is stated that the Legal Manager concerned got in touch with the Ld. Advocate, Subrata Mukherjee, since deceased, to enquire about the fate of the Appeal in the first week of September, 2016.  Thus we find that on one hand, it is claimed that the Legal Manager concerned asked the aforesaid Ld. Advocate to prepare  Memo of Appeal on 30-09-2016 and on the other hand, it is stated that the Legal Manager followed up the matter of preparation of Memo of Appeal in the first week of September, 2016.  Seemingly, this is self-contradictory.

Be that as it may, it seems, the onus of delayed filing of this Appeal has been entirely ascribed upon two former Ld. Advocates of the Appellants, none of whom is available to vouch for the same.  In any case, what we find quite intrigue is that the Appellants have not acknowledged their own lapses in this regard. 

First, it is stated that the Ld. Advocate who was representing the Appellants before the Ld. District Forum informed the Legal Manager about ex parte hearing of the complaint case before the concerned Ld. District Forum.  However, we find it baffling, if the Appellants indeed engaged a Ld. Counsel to defend their case, why W.V. was not filed within time. 

It appears from the impugned order that Appellants did appear before the Ld. District Forum, but failed to file WV within the statutory period of limitation.  It clearly points out gross negligence on the part of the Appellants.  In their own interest, the Appellants were supposed to press hard their Ld. Advocate so as to ensure timely submission of W.V. within the statutory period as laid down under the 1986 Act.  If they did not do so, they must own up equal responsibility.  Given that daily orders of cases are available online nowadays, the Appellants cannot shrug off due responsibility for not keeping a close tab on the developments of the case from time to time.  Mere appointment of Legal Counsel hardly suffices. 

That apart, admittedly, after the legal Manager of the Appellants spoke to the Ld. Advocate concerned over phone in the first week of September, 2016, we find that he again tried to make contact with the said Ld. Counsel in the second week of March, 2017.  No clarification is given from the side of the Appellants why no effort was made to follow up the matter of filing of Appeal with the Ld. Advocate concerned at regular intervals despite being fully aware of the fact that the statutory period for filing the Appeal expired long ago.

The Hon’ble Apex Court in the matter of Oil & Natural Gas Corporation v. Gujarat Energy Transmission Corpn. Ltd. & Ors. in Civil Appeal No. 1315 of 2010 observed that, “If the delay is statutorily not condonable, the delay cannot be condoned”.

Therefore, it can reasonably be presumed that due diligence to file the Appeal within the threshold period of 30 days since passing of the impugned order by the Ld. District Forum was very much missing.  The reasons, so assigned behind delayed filing of this Appeal by 133 days (excluding the statutory period of limitation), being not tenable in the eye of law, the petition cannot be allowed.  We are, therefore, constrained to reject the same.  As a result, the Appeal stands dismissed being barred by limitation.