UTPAL KUMAR BHATTACHARYA, MEMBER
Both the IA/205/2017 and the MA/641/2017 arising out of the Complaint Case bearing number 107/2016 were taken up for passing necessary order.
On the last date of hearing, we had heard Ld. Advocates appearing on behalf of both sides. It appears that in the MA/641/2017, filed prior to the IA/205/2017 the Appellant/Complainant No.1 has prayed for allowing him to add parties mentioned in the subject MA as added Respondents.
In IA/205/2017, subsequently filed by Sri Bimal Kumar Gayen, one of the partners of the Sonarpur Gas Services, the OP No.4 herein, has challenged the maintainability of the complaint on different grounds narrated therein, one of which being delayed filing of the complaint. It has also been pointed out therein that the day to day delay has not been explained in the prayer for condonation of a huge delay of 1698 days in filing the complaint.
The record, however, revealed the fact that there was a huge delay of 1710 days in filing the complaint. That meant, in addition to this statutory period of two years for filing the complainant, the Complainant needed near about five years more to file the complaint case. The claim for explanation of each days delay as demanded by the Applicant/O.P No. 4 for considering the prayer for condonation appeared to have sufficient justification in the above perspective.
A glance at the record would reveal the fact that the hearing on the petition for condonation of delay was earlier fixed on successive three dates, one of which being a special chance with cost. The hearing could not be held mainly due to (i) Complainant’s remaining absent, (ii) Complainant’s praying for time and (iii) Complainant’s praying for further time for payment of cost.
Since maintainability point is to be decided first before proceedings in any case is initiated and since the instant IA No. 205/2017 entails prayer for dismissal of the complaint in view of the absence of the day to day justification of the huge delay, we feel it wise to decide on the petition for the condonation of the delay first as we have already ordered many time before.
Facts remained that the complainants herein filed before the Hon’ble High Court, Calcutta, the W.P. No.2097 (W) of 2009 on the same issue. The Hon’ble High Court, on hearing the Appeal, disposed it of by permitting the petitioners to institute civil proceedings before the appropriate Forum refusing to invoke extraordinary jurisdiction under Article 226 of the Constitution of India since the issue involved disputed question of facts which needed to be decided before damages could be claimed and the claimed sounded money.
An Appeal challenging the above order was filed before the Division Bench of the Hon’ble High Court under MAT 809 of 2009. The said Appeal was also dismissed because of the Appeal being not accompanied by any petition for condonation of delay and also for non-participation of the Appellant on the date for prosecuting the Appeal.
The facts and circumstances narrated above left for us reasons to believe that the complainant was very much aware of the date of initiation of the cause of action and knocked the door of the Hon’ble High Court before resorting to the Commission.
We have gone through the petition praying for condonation of delay wherein the Complainant, in addition to other grounds, focused mainly on the loss of briefs and papers from the custody of the Ld. Advocate who contested the Appeal No. MAT 809 of 2009 on his behalf. Record revealed that the aforesaid Appeal was dismissed on 16.09.2013. We are not convinced to accept the reason as any tenable justification to condone a huge delay. In this context, we may rely on the decision of the Hon’ble High Court Delhi at New Delhi in RFA/497/2017 [ Moddus Media Pvt. Ltd. – Vs – Scone Exhibition Pvt. Ltd.] wherein at Para 11, the Hon’ble High Court observed, ‘The litigant owes a duty to be vigilant of his rights and is also expected to be equally vigilant about the judicial proceedings pending in the court of law against him or initiated at his instance. The litigant cannot be permitted to cast the entire blame on the Advocate. It appears that the blame is being attributed on the Advocate with a view to get the delay condoned and avoid the decree. After filing the civil suit or written statement, the litigant cannot go off to sleep and wake up from a deep slumber after passing a long time as if the Court is storage of the suits filed by such negligent litigants. Putting the entire blame upon the advocate and trying to make it out as if they were totally unaware of the nature or significance of the proceedings is a theory put forth by the appellant/applicant/ defendant company, which cannot be accepted and ought not to have been accepted. The appellant is not a simple or rustic illiterate person but a Private Limited Company managed by educated businessmen, who know very well where their interest lies. The litigant is to be vigilant and pursue his case diligently on all the hearings. If the litigant does not appear in the court and leaves the case at the mercy of his counsel without caring as to what different frivolous pleas/defences being taken by his counsel for adjournments is bound to suffer. If the litigant does not turn up to obtain the copies of judgment and orders of the court so as to find out what orders are passed by the court is liable to bear the consequences.’
Moreover, the Hon’ble High Court, Calcutta allowed the Complainant the liberty to seek remedy through civil prosecution from a competent forum when this Commission was not any forum to try a civil prosecution.
Above being the circumstances, we don’t find any reason to consider in favour of the maintainability of the complaint for the same being barred by limitation.
Hence,
Ordered
that the IA/205/2017 is allowed on contest and disposed of accordingly. The Complaint Case No. 107/2016 stands dismissed being barred by limitation and consequently, the MA/641/2017 also stands disposed of being redundant in the given circumstances.
