HON’BLE MR. JUSTICE MANOJIT MANDAL, PRESIDENT

1. This appeal has been filed against the order dated 27.09.2023 passed by the Learned District Consumer Disputes Redressal Commission, Kolkata, Unit IV ( in short, ‘the Commission’) in connection with a consumer complaint case being No. CC/79/2023 titled Sri Panchu Shaw Vs. Vivek Shaw & Ors.

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

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

4. Learned Advocate appearing for the appellant has submitted that the appellant was totally dependent upon the Learned Advocate. But unfortunately, Learned Advocate was not able to take necessary steps due to his illness in the month of October, 2023 and it has come to the knowledge of the appellant herein that the Learned Advocate has not been able to prefer the appeal within the stipulated time as he was ill and long puja vacation was going.

5. He has further urged that after opening the Commission from puja vacation on 16.11.2023 Learned Advocate initiated to file the appeal and drafting of the appeal and other petitions have been completed.

6. He has further urged that the Learned Advocate fell ill and was suffering from fever and cold and cough in the month of October, 2023. As such, there was delay in filing the instant appeal. So, the application for condonation of delay should be allowed and the delay should be condoned.

7. 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 164 days. It also appears to me that the judgment of this case was passed on 29.05.2023 and the present appeal has been filed on 27.12.2023. Now, I shall have to consider as to whether the application for condonation of delay should be allowed or not. 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 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.”

8. 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 appears that the impugned order was passed on 29.05.2023 and the present appeal has been filed on 27.12.2023 i.e. after a delay of 164 days. The office has also submitted a report before this Commission that the appeal has been filed with a delay of 164 days.

9. In order to condone the delay of the said 164 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”.

10. Reverting to the materials available before me para No. 5 of the application 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 that the appellant was totally dependent upon his Learned Advocate but unfortunately, the Learned Advocate was not able to take necessary steps due to his illness in the month of October, 2023 and the Learned Advocate has not been able to prefer an appeal within the specified time period as he was ill and long puja vacation was going. The Learned Advocate fell ill and was suffering from fever and cough and cold in the month of October, 2023. As such, there is some delay.

11. On careful perusal of the said record as well as the application for condonation of delay it appears to me that the appellant had knowledge that the Learned Advocate who was engaged on behalf of the appellant was not able to take necessary steps due to his illness in the month of October, 2023 and the Learned Advocate fell ill and was suffering from fever and cough and cold in the month of October, 2023. In spite of that the appellant did not try to change the erstwhile Advocate and to appoint new Advocate for filing the appeal against the impugned order in time. Moreover, it appears to me that the appellant has not filed any papers to show that the Learned Advocate who was engaged for filing the appeal was suffering from fever and cough and cold in the month of October, 2023.

12. 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.

13. In the result, the submissions of the appellant that Learned Advocate was ill and was not able to file the appeal in time is nothing but an attempt to mislead the Commission.

14. In view of the above, I find no sufficient ground to condone the delay for about 164 days.

15. 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.