HON’BLE MR. JUSTICE MANOJIT MANDAL, PRESIDENT

1. This appeal has been filed under section 41 of the Consumer Protection Act, 2019 challenging the order dated 17.02.2023 passed by the Learned District Consumer Disputes Redressal Commission, Kolkata, Unit – III in connection with consumer case No. CC/567/2021.

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

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

4. In paragraph No. 4 of the application the reason given for the delay in filing of the appeal is that appellant No. 1 is an old aged ailing lady patient, appellant No. 2 is residing at Siliguri due to his work, appellant No. 3 is also not residing at the address as mentioned in the cause title of the petition of complaint. Respondent Nos. 1 & 2 have knowledge that the appellant No. 2 is residing at Siliguri for work. The appellants were totally in the dark about the consumer complaint.

5. The only cause for the delay is that notices upon the appellants in connection with consumer case were not served and they had no knowledge about the consumer case.

6. On careful perusal of the record it appears to me that notices were duly issued upon the appellants by the Learned District Commission and the said notices were returned with postal remarks ‘unclaimed’. I think that ‘unclaimed’ amounts to service. Therefore, notices upon the appellants in connection with consumer case were duly served upon them and they had knowledge about the filing of the case against them.

7. As regards illness of the appellant No. 1, it appears that the appellants have filed some prescriptions which were issued prior to filing of this case i.e. in the year 2019. The present case has been filed in the year 2021.

8. It also appears to me that the prescriptions filed by the appellants which were issued in the year 2021, there is no whisper in the said prescriptions that the appellant No. 1 was bed-ridden and was unable to move. The appellants have also not filed any paper to prove that the appellant Nos. 2 & 3 both are residing outside of their premises and the appellant No.  2 resides in Siliguri.

9. Under this facts and circumstances, it may be concluded that the appellants have filed the instant application with unclean hands which is liable to be dismissed in limine. So, the cause shown, is, therefore, insufficient.

10. The Hon’ble Apex Court in Ram Lal and Ors.  – Vs. Rewa Coalfields Limited, AIR 1962 Supreme Court 361 has observed as under :-

“It is, however, necessary to emphasize that even after sufficient cause has been shown a party is not entitled to the condonation of delay in question as a matter of right. The proof of a sufficient cause is a discretionary jurisdiction vested in the Court by S.5. If sufficient cause is not proved nothing further has to be done; the application for condonation has to be dismissed on that ground alone. If sufficient cause is shown then the Court has to enquire whether in its discretion it should condone the delay. This aspect of the matter naturally introduces the consideration of all relevant facts and it is at this stage that diligence of the party or its bona fides may fall for consideration; but the scope of the enquiry while exercising the discretionary power after sufficient cause is shown would naturally be limited only to such facts as the Court may regard as relevant.”

11. The Hon’ble Supreme Court in another case of R.B. Ramlingam vs. R.B. Bhavaneshwari, 1 (2009) CLT 188 (SC), has stated that a court has to apply the basic test while dealing with the matters relating to condonation of delay, whether the Petitioner has  acted with reasonable diligence or not. The court has held as under :

“We hold that in each and every case the Court has to examine whether delay in filing the special appeal leave petitions stands properly explained. This is the basic test which needs to be applied. The true guide is whether the petitioner has acted with reasonable diligence in the prosecution of his appeal / petition.”

12. In another case reported in (2011) 14 SCC 578 ( Anshul Aggarwal vs. New Okhla Industrial Development Authority ),  the Hon’ble Apex has held that the special nature of the Act has to be kept in mind while dealing with the special period of limitation prescribed therein.

13. The Hon’ble court has further held as under :

“It is also apposite to observe that while deciding an application filed in such cases for condonation of delay, the Court has to keep in mind that the 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 this court was to entertain highly belated petitions filed against the orders of the consumer Fora.”

14. The Learned Advocate for the appellants in support of the case regarding the condonation of delay has relied on an unreported judgment passed by the Hon’ble National Commission in connection with the appeal No. 477/2021. However, reliance of this judgment in the adjudication of this appeal, facts being at variance, would be misplaced.

15. In view of the above, I find no sufficient ground to condone the delay of 332 days. The present appeal is nothing but an attempt to abuse the process of law. The application for condonation of delay is, accordingly, dismissed.

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

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