Tripura

StateCommission

A/15/2019

Raja DasGupta Prop. of Pharmatech International - Complainant(s)

Versus

Sri Dulal Biswas, Prop. of Sanjabani Ice-Cream Factory. - Opp.Party(s)

Mr. S. Bhattachrya

19 Aug 2019

ORDER

 

Tripura State Consumer Disputes Redressal Commission, Agartala.

 

 

 

Case No.A.15.2019

 

 

1. Sri Raja Das Gupta,

Proprietor of Pharmatech International,

30 Chaulpatty Road, Kolkata, West Bengal,        

Pin: 700010.

 

… … … … Appellant/Opposite Party.

 

•  

 

 

 

1. Sri Dulal Biswas,

S/o Radhu Biswas,

Residence of Damdamia, Lembuchera, Lefunga, West Tripura,

Proprietor of Sanjabani Ice-cream Factory,

Kalkalia Tea Estate, Sidhai.

… … … …Respondent/Complainant.

 

 

 

Present

 

Hon’ble Mr. Justice U.B. Saha

President,

State Commission

 

Mr. Narayan Ch. Sharma,

Member,

State Commission

 

 

 

 

 

 

For the Appellant:                                         Mr. Sankar Bhattacharjee, Adv.

For the Respondent:                                      Mr. Abhijit Gon Chowdhury, Adv.

Date of Hearing & Delivery of Order:                   19.08.2019.

 

 

O R D E R [O R A L]

 

U.B. Saha, J,

 

The instant appeal is filed against the judgment dated 16.03.2018 passed by the learned District Consumer Disputes Redressal Forum (hereinafter referred to as District Forum), West Tripura, Agartala in Case No.C.C.114 of 2017 along with an application for condoning the delay of 255 days in preferring the appeal.     

2. Today is fixed for order on condonation petition.
3. Heard Mr. Sankar Bhattacharjee, Ld. Counsel appearing for the appellant (hereinafter referred to as opposite party) as well as Mr. Abhijit Gon Chowdhury, Ld. Counsel appearing on behalf of the respondent (hereinafter referred to as complainant).
4. Brief facts needed to be discussed are as follows:-

Complainant, Mr. Dulal Biswas, submitted an application before the District Forum under Section 12 of the Consumer Protection Act, 1986 alleging that he had purchased one Sugar Boiling Vessel, Pasteurizer, Storage tank, Paste machine, Pepsi filing machine in the month of February, 2017 from the opposite party. After negotiation the final payment of Rs.2,85,000/-, the machine was supplied by opposite party. After receiving the items, the complainant found that the Sugar Melting Tank and Pasteurizer were not supplied as per catalogue. Out of five items, three items only supplied. On 20.07.2017, opposite party sent two machines for installation, but those were found defective. Complainant then informed this but those were not changed. Two defective machines were purchased on payment of Rs.6,50,000/-. As those were not changed, complainant suffered huge loss. Machines were not working. Complainant paid Rs.9,73,625/-. In spite of that, machines were not installed properly. As such, complainant suffered huge loss and claimed Rs.12 lacs.

5. Opposite party appeared and filed written objection denying the claim of the complainant. It is stated in the written objection that the complainant is a business man and the machines were purchased for commercial purpose. Thus, the complaint case is not maintainable.
6. On the basis of the pleadings of the parties, the learned District Forum framed the following points for deciding the case:

1. Whether the petition is maintainable?
2. Whether the petitioner is entitled to get the compensation for the deficiency of service of the O.P.?

7. Complainant produced the Trade License, Final Settlement documents, final payment, copy of draft, copy of NEFT, cash payment slip, price list, instruction documents marked as Exhibit - 1 Series. Complainant also produced his examination-in-chief on oath.
8. Opposite party did not appear after filing the written objection/written statement. So, on the basis of the evidence given by the complainant, the learned District Forum decided the case allowing the complaint petition, wherein the learned District Forum directed the opposite party to pay compensation of Rs.50,000/- and to replace the two defective machines or pay its price of Rs.6,50,000/-. The direction of the District Forum is to be complied with within two months, if not, enforcement method will be applied and interest also is to be paid on compensation amount and price of the machines.
9. Being aggrieved by the aforesaid judgment of the learned District Forum, the appellant-opposite party preferred the instant appeal along with an application for condoning the delay of 255 days in preferring the appeal.
10.  

“

Reasons for causing delay in preferring the appeal has been explained in paragraph 3 to 6 of the condonation petition which are reproduced hereunder:-

 

3. That the copy of the order was communicated to the Applicant and he has received the judgment on 20.08.2018, thus from the date of knowledge about the judgment on 16.03.2018 and appeal can be filed on 20.09.2018. But in the present case the Appeal is filed on 31.05.2019 and there is a delay of 255 days.
4. That the Applicant has no knowledge or he is not acquainted with any Ld. Counsel at Agartala thus again he has requested his Counsel at Kolkata to do the needful. Ld. Counsel at Kolkata was busy with his pre occupation thus he initially declined to come to at Agartala. Ultimately he has agreed to come at Agartala to file the Appeal. In the mean time the Applicant also received a copy of the notice of execution case filed by the respondent fixing date on 10.05.2019. Thus the Ld. Counsel came to Agartala and engaged the present Counsel since it may not be possible on his part to attend the hearing before the Hon’ble Commission time to time.
5. That on 10.05.2019 the Ld. Counsel handed over the brief to the to the (sic) Ld. Counsel at Agartala but on that date it self the Ld. Counsel of Kolkata could not provide the crucial dates i.e. the date on which the copy of the Judgment was received by the Applicant thus after going to Kolkata only on 30.05.2019 The Ld. Counsel of Kolkata informed the Ld. Counsel at Agartala about the details of the dates etc.
6. That on receipt of the information on 30.05.2019 the memo of Appeal, stay Petition and the present application for Condonation of delay were prepared and sent through e-mail to the Ld. Counsel at Kolkata for swearing affidavit in support of the same and after swearing affidavit said application were again sent to the ld. Counsel at Agartala on 30.05.2019 through courier as urgent basis courier and in the said process some more days time has been taken and lastly on 31.05.2019 the Appeal has been filed along with petition for stay and Condonation.”

11. The complainant filed an objection to the prayer for condonation of delay. In the objection petition, it is specifically stated that the opposite party had received the copy of the judgment on 28.08.2018, but he did not submit any papers regarding the receipt of the said judgment on 28.08.2018 before this commission which is a suppression of material fact. Complainant has also denied the contention made in the condonation petition, particularly, the reasons for delay.
12. Mr. Bhattacharjee, Ld. Counsel appearing for the appellant-opposite party while urging for condoning the delay as sought for would contend that though the judgment was delivered on 16.03.2018, but the same was received by the opposite party on 20.08.2018. Thus, the limitation will be started from the date of knowledge only and there is a delay of 255 days in preferring the appeal. He has further submitted that the Ld. Lawyer engaged by the opposite party did not intimate the result of the case to the opposite party in time and more so, he did not appear before the learned District Forum on the date fixed. Thus, it would be proper to condone the delay. In support of the aforesaid contention he has relied upon a judgment of the Hon’ble Supreme Court in Improvement Trust, Ludhiana Vs Ujagar Singh & Ors. 2010 STPL 14800 SC, wherein the Hon’ble Apex Court after considering the facts of that case allowed the appeal subject to payment of Rs.50,000/-.
13. Per contra, Mr. Gon Chowdhury, Ld. Counsel appearing for the complainant while opposing the prayer for condonation of delay submits that the reasons for causing delay in preferring the appeal as explained by the opposite party is not a genuine one; rather the appellant-opposite party has intentionally and deliberately caused delay in preferring the appeal. He again submits that the opposite party, the appellant herein, is very clever which would be apparent from the condonation petition and memo of appeal wherein it is obvious that the appellant-opposite party filed the appeal along with the condonation petition after receiving the notice of the Execution Petition which was fixed on 10.05.2019 and before that he had enough time to file the appeal, but he did not do so and later on, he has filed the condonation petition only to avoid the compliance of the judgment of the learned District Forum. He also submits that the appellant could have collected the information from any source regarding the case or the judgment, but he did not. He further submits that the appellant-opposite party in his condonation petition mentioned that he received the copy of the judgment on 20.08.2018, but in support of that, the appellant-opposite party did not submit any papers before this Commission which is a suppression of material fact. He has further contended that the appellant-opposite party in his condonation petition also mentioned that he has no knowledge and not acquainted with any lawyer at Agartala for which he requested the Ld. Counsel at Kolkata who was busy at that time and finally when the appellant-opposite received the copy of the notice of execution case, the Ld. Counsel came to Agartala and engaged the present Counsel is totally a vague and not acceptable in the eye of law and should be rejected and thus, the condonation petition is also liable to be dismissed. He finally submits that the Consumer Court is not like a Civil Court and particularly, Proviso to Section 15 of period of limitation specifically prescribes that 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 the Court is to entertain highly belated petitions. In support of his aforesaid contention he has relied upon a judgment of Anshul Aggarwal Vs New Okhla Industrial Development Authority IV (2011) CPJ 63 (SC).
14. We have gone through the condonation petition as well as the objection. According to us, neither the delay has been properly explained nor the reasons stated for delay is satisfactory one. More so, the judgment was delivered on 16.03.2018 and the copy of the said judgment was received on 20.08.2018, but why this delay of receiving the judgment and for which fault the same was not received has not been mentioned in the condonation petition except certain contention regarding the role of Ld. Counsel at Agartala.   
15. In Basawaraj & Anr. Vs The Spl. Land Acquisition Officer (Civil Appeal No.6974 of 2013), the Hon’ble Apex Court observed that “It is a settled legal proposition that law of limitation may harshly affect a particular party but it has to be applied with all its rigour when the statute so prescribes. The Court has no power to extend the period of limitation on equitable grounds. ‘A result flowing from a statutory provision is never an evil. A Court has no power to ignore that provision to relieve what it considers a distress resulting from its operation.’ The statutory provision may cause hardship or inconvenience to a particular party but the Court has no choice but to enforce it giving full effect to the same. The legal maxim ‘dura lex sed lex’ which means ‘the law is hard but it is the law’, stands attracted in such a situation. It has consistently been held that, ‘inconvenience is not’ a decisive factor to be considered while interpreting a statute.”
16. ‘Sufficient cause’ is the cause for which the opposite parties could not be blamed for their filing of appeal in time. The meaning of the word "sufficient" is "adequate" or "enough", inasmuch as may be necessary to answer the purpose intended. In other way, it can be said 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 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".
17. As per settled law, culled out from various judicial decisions, the above expression, 'sufficient cause' though deserves to receive a liberal construction, yet, a just and equitable balance has to be maintained between the right secured by the respondent as a result of the expiry of the prescribed period of limitation and the injustice of depriving the appellants of adjudication of their grievances on the merits of their appeal for causes beyond their reasonable control, which means the cause is bona fide and beyond the control of the appellants. There is no hard and fast rules what should be the 'sufficient cause' in a given case.
18. In Anshul Aggarwal Vs New Okhla Industrial Development Authority IV (2011) CPJ 63 (SC), the Hon’ble Apex Court while dealing with the issue pertaining to condonation of delay observed as follows:-

“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 Foras.”

Again in Cicily Kallarackal Vs Vehicle Factory, IV (2012) CPJ 1(SC) 1, wherein the Hon'ble Supreme Court observed:-

“4. This Court in Anshul Aggarwal v. NOIDA, (2011) CPJ 63 (SC), has explained the scope of condonation of delay in a matter where the special Courts /Tribunals have been constituted in order to provide expeditious remedies to the person aggrieved and Consumer Protection Act, 1986 is one of them. Therefore, this Court held that while dealing with the application for condonation of delay in such cases the Court must keep in mind the special period of limitation prescribed under the statute(s).

5. In the instant case, condoning such an inordinate delay without any sufficient cause would amount to substituting the period of limitation by this Court in place of the period prescribed by the Legislature for filing the special leave petition. Therefore, we do not see any cogent reason to condone the delay.

6. Hence, in the facts and circumstance of the case as explained hereinabove, we are not inclined to entertain these petitions. The same are dismissed on the ground of delay”.

In the aforesaid judgment Hon’ble Supreme Court has highlighted that while dealing with an application for condonation of delay the Court must bear in mind the object of expeditious disposal of consumer dispute which would get defeated if the Court was to entertain highly belated petitions.”

19. The case law referred by Mr. Bhattacharjee, Ld. Counsel for the appellant-opposite party in Ujagar Singh & Ors. (supra) is not related to a case of Consumer Protection Act, rather a case regarding Civil disputes and the facts of those cases are totally different, than the case in hand. Thus, we are unable to accept the contention of Mr. Bhattacharjee.   

In view of the above, we are of the opinion that the delay in filing the instant appeal has not been properly explained and the same is also not reasonable and bona fide as required under law. Accordingly, the condonation petition is dismissed and in consequent thereto, the appeal also stands dismissed.

Send down the records to the Ld. District Forum, West Tripura, Agartala.