KERALA STATE CONSUMER DISPUTES REDRESSAL COMMISSION,

VAZHUTHACAUD, THIRUVANANTHAPURAM

I.A. No. 752/2023 in APPEAL No. 380/2023

ORDER DATED: 29.10.2024

(Against the Order in C.C. 310/2017 of DCDRC, Alappuzha)

PRESENT:

HON’BLE JUSTICE SRI. B. SUDHEENDRA KUMAR            : PRESIDENT

SRI. AJITH KUMAR D.                                                                 : JUDICIAL MEMBER

SRI. RADHAKRISHNAN K.R.                                                     : MEMBER

PETITIONER/APPELLANT:

          Anilkumar, S/o T.S. Raveendran, Tottunkal, Pollethai P.O., Alappuzha.

(By Adv.Ashraf A.)

                                                Vs.

RESPONDENT:

Sunilkumar, S/o Balakrishna Kurup, Harinandanam from Sreenilayam, Pollethai P.O., Kalavooor, Alappuzha.

(By Adv. R. Sajeev Kumar)

ORDER

HON’BLE JUSTICE SRI. B. SUDHEENDRA KUMAR  : PRESIDENT

This is an application seeking for condonation of the delay of 1695 days in filing the appeal. 

2.  It is contended that the notice regarding the posting of the case before the District Commission was not received by the petitioner as the post man had delivered the notice to another Anilkumar, who was residing one kilometer away from the house of the petitioner.  The petitioner came to know about the case only after learning about the warrant issued by the District Commission in the execution proceedings.  Thereafter, the petitioner applied for the certified copy of the order and other documents.  The certified copy was received by the petitioner on 05.06.2023 and hence there was a delay of 1695 days in filing the appeal. 

3.  Heard both sides. We also perused the proceedings of the District Commission.

4.  The object of the law of limitation is to put an end to every legal remedy and to have a fixed period of life for every litigation as it is futile to keep any litigation or dispute pending indefinitely. We may now go through the authorities on the point before proceeding further.

5.  The Hon’ble Apex Court in Anshul Aggarwal v. New Okhla Industrial Development Authority (2011 KHC 5263 :2011 (14) SCC 578) held in paragraph 5 as hereinbelow:-

           “5. 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”.

           6.  The Hon’ble Apex Court in Pathapati Subba Reddy(Died) by L.Rs. v. Special Deputy Collector (LA) reported in 2024 KHC 6197 : 2024 INSC 286 : 2024 Live Law (SC) 288, after considering various decisions of the Hon’ble Apex Court,  held that the law of limitation is based upon public policy that there should be an end to litigation by forfeiting the right to remedy rather than the right itself. It was further held in the above decision that a right or the remedy that has not been exercised or availed of for a long time must come to an end or cease to exist after a fixed period of time. The Hon’ble Apex Court further held in Pathapati Subba Reddy (Died) by L.Rs.(Supra) that the courts are empowered to exercise discretion to condone the delay if sufficient cause is explained, but that exercise of power is discretionary in nature and may not be exercised even if sufficient cause is established for various factors such as, where there is inordinate delay, negligence and want of due diligence. The Apex Court also held that the merits of the case are not required to be considered in condoning the delay.  

7.  The National Commission in Liberty Videocon General Insurance Vs. MS. Rathod in First Appeal No. 1189 of 2023 held that where there is inordinate delay, negligence and want of due diligence, the delay condonation petition cannot be permitted.  In the said case, the National Commission dismissed the application seeking for condoning the delay of 102 days in filing the appeal.

8.  The National Commission in Appeal Execution No. 8 of 2024 held that when the appeal is filed beyond limitation, the applicant has to explain as to what sufficient cause which prevented him from approaching the court within the period of limitation.  The National Commission further observed that adequate and enough reason must be there for condoning the delay.  In the said case, the National Commission dismissed the application for condonation of delay of 39 days in filing the appeal.

9.  In Kotak Mahindra Bank Ltd. Vs. New India Assurance Co. Ltd., the State Commission dismissed the application, for condonation of delay of 142 days, filed on the ground that the records were misplaced by the junior advocate of the counsel concerned. The National Commission did not interfere with the said order.

10.  In the light of the above legal position, we have to test whether the delay in filing the appeal is liable to be condoned or not in this case.

11.  Even though it is contended by the petitioner that the notice issued from the District Commission was delivered by the post man to another Anilkumar, instead of delivering the same to the petitioner, it is not stated in the affidavit as to when the said Anilkumar had informed the petitioner that he had received the notice addressed to the petitioner.  It is also not stated in the affidavit as to why the said Anilkumar did not hand over the said notice to the petitioner even though the said Anilkumar was convinced that it was a notice addressed to the petitioner and not to him. There is also absolutely no material before the commission to indicate that the contention of the petitioner in this regard is correct.

12.  It is not decidable as to why the petitioner did not file the appeal within the statutory period after the receipt of the free copy of the order from the District Commission.  It is borne out from the proceedings of the District Commission that the free copy of the order was despatched to the petitioner on the correct address on 05.10.2018. That was not returned unserved.  Therefore, the only inference possible is that the said free copy of the order was duly delivered to the petitioner. However, the affidavit of the petitioner is silent about the said aspect.  The petitioner does not have a contention that the free copy issued from the District Commission on 05.10.2018 was not received by the petitioner. 

13.  Having gone through the relevant inputs, we are of the considered view that the petitioner could not establish that the reasons stated by the petitioner for the inordinate delay of 1695 days in filing the appeal are correct, by the yardstick of preponderance of probability.  That apart, the petitioner has not mentioned anything in the affidavit about the free copy of the order received by the petitioner.  Having gone through the reasons stated by the petitioner, we are of the considered view that the reasons stated by the petitioner are not sufficient to condone the delay of 1695 days in filing the appeal. That apart, there was gross negligence and want of due diligence on the part of the petitioner in this case.  In the said circumstances, we are not inclined to condone the delay.

In the result, this application stands dismissed.

JUSTICE B. SUDHEENDRA KUMAR: PRESIDENT

                                                                  AJITH KUMAR D. : JUDICIAL MEMBER

                                                                        RADHAKRISHNAN K.R.  : MEMBER

jb

KERALA STATE CONSUMER DISPUTES REDRESSAL COMMISSION,

VAZHUTHACAUD, THIRUVANANTHAPURAM

APPEAL No. 380/2023

JUDGMENT DATED: 29.10.2024

(Against the Order in C.C. 310/2017 of DCDRC, Alappuzha)

PRESENT:

HON’BLE JUSTICE SRI. B. SUDHEENDRA KUMAR            : PRESIDENT

SRI. AJITH KUMAR D.                                                                 : JUDICIAL MEMBER

SRI. RADHAKRISHNAN K.R.                                                     : MEMBER

APPELLANT:

          Anilkumar, S/o T.S. Raveendran, Tottunkal, Pollethai P.O., Alappuzha.

(By Adv.Ashraf A.)

                                                Vs.

RESPONDENT:

Sunilkumar, S/o Balakrishna Kurup, Harinandanam from Sreenilayam, Pollethai P.O., Kalavooor, Alappuzha.

(By Adv. R. Sajeev Kumar)

JUDGMENT

HON’BLE JUSTICE SRI. B. SUDHEENDRA KUMAR  : PRESIDENT

In view of the dismissal of I.A. No. 752/2023, this appeal stands dismissed as barred by limitation.

The statutory deposit made by the appellant shall be given to the respondent, to be adjusted/credited towards the amount ordered by the District Commission, on proper acknowledgement.

JUSTICE B. SUDHEENDRA KUMAR: PRESIDENT

                                                                  AJITH KUMAR D. : JUDICIAL MEMBER

                                                                        RADHAKRISHNAN K.R.  : MEMBER

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