HON’BLE MR. JUSTICE MANOJIT MANDAL, PRESIDENT
- This appeal has been filed against the order dated 17.05.2022 passed by the Learned District Consumer Disputes Redressal Commission, Kolkata, Unit II ( in short, ‘the District Commission’) in connection with Consumer Case No. C/358/2021.
- Along with the appeal, an application for condonation of delay has also been filed by the appellant.
- We have heard the Learned Advocates appearing for both the parties on the application for condonation of delay and also carefully perused the record.
- Learned Advocate appearing for the appellant has submitted that the appellant had no knowledge about the present complaint case. As such, he has failed to appear before the Learned District Commission and failed to contest the case. Learned Advocate appearing for the appellant further submitted that the non appearance of the appellant throughout the proceeding was bona fide and not at all willful and / or deliberate in as much as the appellant was not aware of the notice dated 06.12.2021 indicating the time, date and appearance before the Learned District Commission below. He has further submitted that since inception the appellant was unaware of the said proceeding owing to the fact that the summon issued by the Bench Clerk did not reach him and / or came to his knowledge by a bona fide and unintentional mistake of one of his staff at the chamber / pharmacy. He has further submitted that the appellant was prevented from sufficient cause from preferring the appeal within the statutory period of limitation. He has further submitted that on getting certified copy of the order from the District Commission, the appellant has filed this appeal with a delay of 55 days. The said delay was not intentional on his part. So, the application for condonation of delay should be allowed and the appeal should be admitted. On the other hand, Learned Advocate appearing for the respondents has argued that the appeal has been filed with a delay of 55 days. The delay in filing the appeal is intentional. He has filed the instant appeal only to harass the respondent in this case. The respondent has prayed for dismissal of the condonation of application.
- Having heard the Learned Advocates appearing for both the parties and on perusal of the record it appears to us that the office has submitted a report that this appeal has been filed with a delay of 55 days. It also appears to us that the judgment of this case was passed on 17.05.2022 and the present appeal has been filed on 26.08.2022.
- Now, we shall have to consider as to whether the application for condonation of delay should be allowed.
- To adjudicate this issue we deem it appropriate to refer section 15 of the Consumer Protection Act, 1986 which runs as follows :-
“15. Appeal. – Any person aggrieved by an order made by the District Forum may prefer an appeal against such order to the State Commission within a period of thirty 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 thirty 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 Forum, shall be entertained by the State Commission unless the appellant has deposited in the prescribed manner fifty per cent. of that amount of twenty-five thousand rupees, whichever is less:”
- On perusal of the aforesaid statutory provision it is clear to us that the appeal against the order should be preferred within a period of 45 days from the date of order. On perusal of the record produced before us it is clear that the impugned order was passed on 17.05.2022 and the present appeal was filed on 26.08.2022 i.e. after a delay of 55 days. The office has also submitted a report before this Commission that this appeal has been filed with a delay of 55 days.
- In order to condone the delay of the said 55 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”.
- We also deem it appropriate to refer to Anil Kumar Sharma vs. United Indian Insurance Co. Ltd. and Ors. reported in IV (2015) CPJ 453 (NC), wherein the Hon’ble NCDRC held as under :-
“12. ………….. we are not satisfied with the cause shown to justify the delay of 590/601 days. Day to day delay has not been explained. Hon’ble Supreme Court in a recent judgment of Anshul Aggarwal v. New Okhla Industrial Development Authority, IV (2011) CPJ 63 (SC) has held that while deciding the application filed for condonation of delay, the Court has to keep in mind that 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 appeals and revisions, which are highly belated are entertained.
From the aforesaid dicta of the Hon’ble Apex Court and the Hon’ble National Commission, it is clear 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 and applicant 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.”
- Reverting to the materials available before us para 6,7,8 & 9 of the application for condonation of delay is the explanation given by the appellant for the delay caused in filing the appeal. To explain the said delay the appellant has stated that since inception the appellant was unaware about the proceeding and went to the fact that the summon issued by the Bench Clerk of the District Commission was unknown to him as much as the same did not reach him. But on careful scrutiny of the said petition of the said application for condonation of delay it appears to us that the appellant has clearly and categorically stated in paragraph Nos. 6 & 7 that notice dated 06.12.2021 issued by the Bench Clerk of the District Commission was annexed thereto indicating the direction for appearance of the appellant pertaining to the Consumer Case being No. 358/2021 on 27.12.2021 at 10.30 a.m. and admittedly service of the said petition was effected on him. Therefore, we may conclude that notice upon the appellant have been sent to the appellant and the notice have been made effective. It is not correct that the appellant came to know about the filing of the complaint case on 10.08.2022 while the impugned judgment was passed on 17.05.2022. We think that such plea has been taken by the appellant only to get rid of from the complaint case and to condone the delay though he had full knowledge about this case. The plea taken by the appellant / opposite party is not convincing and believable at all and the said plea prima facie appeared to have been made with the intention to mislead the Commission to get the condonation petition allowed at the admission stage itself.
- In the result, the submission of the appellant that the appellant had got the knowledge about the impugned order on 10.08.2022 is nothing but an attempt to mislead the Commission.
- In view of the above, we find no sufficient ground to condone the inordinate delay of about 55 days. The present appeal is nothing but an attempt to abuse the process of law.
- The application for condonation of delay is accordingly dismissed.
- Accordingly, the appeal is dismissed being barred by limitation.
- The appeal is, thus, disposed of accordingly.
