30/01/15

HON’BLE JUSTICE MR. KALIDAS MUKHERJEE, PRESIDENT

            This order relates to hearing on the petition for condonation of delay of 46 days in filing this Appeal. 

            It has been stated in the petition for condonation of delay that the impugned judgment was passed by Learned District Forum, Paschim Medinipur in case no.CC 106 of 2013 on 27/05/14. Being dissatisfied with the order passed in the impugned judgment the OP No.1 has preferred this instant Appeal.  The Learned Advocate who was conducting the case on behalf of the OP No.1 applied for certified copy of the order on 14/07/14 since he was medically unfit and was advised bed rest by his doctor.  Hence he could not serve the copy of the order upon the Appellant/OP No.1 Bank.  Certified copy was ready for delivery on 14/07/14 and subsequently on 16/07/14 the Learned Advocate for the Bank served the copy of the order upon the Appellant Bank.  Immediately thereafter the permission was obtained from the regional office and the Appeal was filed on 31/07/14.

            The Learned Counsel for the Appellant has submitted that because of the illness of the Learned Advocate, the Appellant Bank could not file the Appeal within the prescribed period.  It is contended that in the interest of justice the delay should be condoned.  The Learned Counsel has also submitted his written argument in respect of the petition for condonation of delay. 

            The Respondent Nos.1 and 2 have filed written objection against the petition for condonation of delay.  It is submitted by the Learned Counsel for the Respondents that no medical prescription or certificate has been filed in support of the contention of the illness of the Learned Advocate.  It is submitted that there is no merit in this Appeal and the petition for condonation of delay should be rejected. 

            We have heard the submission made by both sides and perused the papers on record.  The ground for delay has been mentioned in the petition as the illness of the Learned Counsel.  It has been stated in the petition that Learned Advocate who was conducting the case was advised bed rest by his doctor.  But no medical prescription or certificate has been filed in support of such contention.  The Learned Advocate for the Respondent No.2 has referred to the decision reported in 2012 (4) CPR 487 (NC) [M/s Arihant Builders & Ors. vs. Gaurav Anant Co-op. Housing Society Ltd.] wherein it has been held that negligence of litigant’s agent is negligence of litigant himself and is not sufficient cause for condoning delay.  Moreover, it appears from the impugned judgment that the complaint case was allowed on contest.  It is, therefore, clear that the OP/Appellant knew about the delivery of the impugned judgment by the Learned District Forum on 27/05/14.  It appears that the certified copy was applied for on 14/07/14 and on the same date it was delivered.  In view of the absence of any prescription/certificate regarding the illness of the Learned Advocate, there is unexplained delay in making the application for certified copy of the impugned order.  Relying on the aforesaid decision, we are of the view that there was negligence on the part of OP No.1/Appellant Bank in obtaining the certified copy.

            The Hon'ble Apex Court in the case of Anshul Aggarwal Vs. New Okhla Industrial Development Authority reported in IV (2011) CPJ 63 (SC) has been pleased to observe 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.”

            Having heard the Learned Counsel for the parties and on perusal of the papers on record, we are of the considered view that the delay in filing this Appeal has not been sufficiently explained.  The petition for condonation of delay is rejected.  Consequently, the Appeal being time barred also stands dismissed.