JAYANT KUMAR vs Santanu Gangopadhyay

IN this revision petition filed under Section 21(b) of the Consumer Protection Act, 1986 (short, ''Act'') there is challenge to order dated 12.3.2013 passed in (First Appeal No. 389 of 2012) by West Bengal State Consumer Disputes Redressal Commission, Kolkata (short, "State Commission"). Brief facts are that Respondent Nos. 1 to 3/Complainants had filed consumer complaint against Petitioner/opposite party No. 1 and Respondent No. 4/opposite party No. 2 for having not conducted the IT course properly and denial of placement of service.

PETITIONER as well as respondent No. 1 did not appear before the District Consumer Disputes Redressal Forum, Unit -I, Kolkata (short, "District Forum") inspite of receipt of the notice. Accordingly, petitioner was proceeded ex parte. District Forum, vide order dated 9.8.2011, allowed the complaint of respondent Nos. 1 to 3 and directed the petitioner and respondent No. 4, to pay severally and/or jointly to respondent Nos. 1 to 3 Rs. 15,000 as compensation for their harassment and litigation cost of Rs. 500.

AGGRIEVED by the order of the District Forum, Petitioner filed an appeal, which was dismissed by the State Commission since there was delay of 312 days in preferring the appeal.

NOW , petitioner has filed the present revision petition. We have heard the learned Counsel for the petitioner and gone through the record.

IT has been contended by learned Counsel for the petitioner that petitioner did not receive any notice from the District Forum. The petitioner came to know about the passing of the order of the District Forum only when they received notice of the execution case from the District Forum to appear before it on 20.6.2012. Further, there was no intentional or delay on the part of the petitioner in filing of the appeal before the State Commission. The delay ought to have been condoned by the State Commission and it should not have dismissed the First Appeal on the technical ground of the delay.

THE relevant ground on which petitioner had sought condonation of delay of 312 days before the State Commission reads as under: "5. Thereafter, when the appellant/your petitioners received the notice of the execution case being No. 6 of 2012 from the Calcutta District Redressal Forum, Unit -I, Kolkata have been acquainted with and/or about the case being No. 44 of 2012 filed by the respondents/opposite parties before the learned Calcutta District Redressal Forum on 20.6.2012 and on the same date the appellants appeared in the said execution case. From getting the notice of the execution case filed by the respondents, the appellants came to know that a suit has been filed against them on 20.6.2012.

That the appellants further submit that after knowing the date of the execution they went to meet with their lawyers and engaged him, but unfortunately he was ill and he was under the treatment of a Medical Practitioner. But in spite of his illness he tried heart and soul to file this appeal before your Forum."

The State Commission, while rejecting the application for condonation of delay in its impugned order held: "This order relates to the application for condonation of delay of 312 days in preferring the appeal filed by the appellants herein.

It has been stated in the petition for condonation of delay that the appellants were not served with any notice before the learned District Forum in connection with CC 44 of 11 and an ex parte order was passed against the appellants herein. After receiving the notice of the execution case bearing No. 6 of 2012, the appellants appeared in the said execution case and came to know that the complaint case was allowed ex parte against them. After appearing in the execution case the appellants went to their learned Advocate and engaged him in the said case. But unfortunately he was ill and under the treatment of a medical practitioner and he tried heart and soul to file the instant appeal before this Commission. There was no intentional laches or lacuna on the part of the appellants for the delay in filing this appeal.

The respondents opposed the petition for condonation of delay.

We have heard the submission made by both sides and perused the papers on record. It appears from the judgment of the Learned District Forum that the OPs did not appear in spite of the receipt of notice. As regards the alleged illness no medical certificate was filed along with the application for condonation of delay. On the other hand, it has been stated in Para 6 of the petition that the copy of the medical certificate will be attached at the time of hearing. There is inordinate delay of 312 days in filing this appeal and under the circumstances aforesaid, we find that the appellants failed to show sufficient reasons explaining the inordinate delay in filing the appeal. We are of the considered view that there is no merit in the application for condonation of delay and the same is liable to be rejected.

The application for condonation of delay is rejected. Consequently, the appeal being time barred also stands dismissed."

THUS , as per petitioner''s case it got the knowledge of the order passed by the District Forum only through the execution notice, directing them to appear before the District Forum on 20.6.2012. However, as per copy of the execution notice received by the petitioner, the same was issued on 17.4.2012 directing the petitioner to appear before it on 7.5.2012. There is nothing on record to show that any such notice was issued to the petitioner to appear before the District Forum on 20.6.2012. Under these circumstances, petitioner has made false averments with regard to the actual date fixed before the District Forum in execution proceedings.

FURTHER , the main ground on which condonation of delay was sought before the State Commission was that the Counsel engaged by the petitioner in the execution case became ill and was under treatment of medical practitioner and thus, there was no intentional delay on the part of the petitioner in filing the appeal before the State Commission. State Commission, in this respect as noted above has observed that "as regard the alleged illness no medical certificate was filed along with the application for condonation of delay".

EVEN before this Commission, petitioner has not filed the medical certificate of the previous Counsel with regard to alleged illness.

APEX Court in the case of Anshul Aggarwal v. New Okhla Industrial Development Authority, : (2011) CPJ 63 (SC), has observed: "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."

Under these circumstances, we hold that the State Commission rightly refused to condone the long delay of 312 days and as such State Commission has not committed any error and has rightly exercised its jurisdiction. It is apparent from the record that petitioner has been conducting the present litigation from day one in a very casual and careless manner. Before the District Forum, the petitioner was proceeded ex parte and thereafter it did not become wiser and filed the appeal along with application seeking condonation of delay of 312 days. It appears that only motive of the petitioner is not to comply with the award passed by the District Forum as early as in the year 2011. Thus, we do not find any merit in the revision petition and the same is without any legal basis. Hence, we dismiss the petition with cost of Rs. 10,000 (Rupees ten thousand only).

PETITIONER is directed to deposit the cost by way of demand draft in the name of ''Consumer Legal Aid Account'' of this Commission, within four weeks from today. In case, petitioner fails to deposit the said cost within the prescribed period, then he shall also be liable to pay interest @ 9% p.a., till realization.

APPLICATIO N , if any, also stands dismissed. List on 30.5.2014 for compliance.