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Judgment
THIS revision petition has been filed under section 21(b) of the Consumer Protection Act, 1986 by the petitioner against the impugned order dated 26.07.2012, passed by the Maharashtra State Consumer Disputes Redressal Commission (for short ''the State Commission '') in FA No. A/11/918 a/w MA No. MA/11/545, "P.K. Kundu versus The Konkan Cooperative Cashew Marketing and Processing Society Ltd. " vide which appeal filed by the present petitioner/OP against the order dated 21.08.2010 passed by the District Forum Kolhapur in complaint case no. CC/08/477, allowing the complaint, was dismissed as being time -barred.
BRIEF facts of the case are that the complainant/respondent The Konkan Cooperative Cashew Marketing and Processing Society Ltd. (hereinafter referred to as ''society '') is a registered society under the Maharashtra Cooperative Societies Act, 1960 and its broad objective is to prepare cashew nuts etc. after making process on the cashew produced by the members of the society. The said society purchased pouch -packing machine from the petitioner/OP as per agreement deed dated 17.03.2005 executed between parties for an amount of Rs.10,37,250/ - including the sales tax. A sum of Rs.4.5lakh was given by the Society to the OP on the date of the agreement deed. A further sum of Rs.1 lakh was given on 2.08.2005. The machine was delivered at the factory site of the complainant on 27.06.2006, but as alleged in the complaint, the machine was not in functioning condition. The complainant, alleging deficiency in service on the part of the OP, filed the consumer complaint in question, which was allowed by the District Forum and it was ordered that a sum of Rs.5.5 lakh should be paid to the complainant alongwith interest @9% p.a. from 2.08.2005 till realisation and a sum of Rs.1,000/ - should be paid as litigation cost. This order of the District Forum was passed on 21.08.2010 and an appeal against this order was preferred before the State Commission with the alleged delay of 366 days in November 2011. The State Commission vide impugned order dated 26.07.2012 refused to condone the delay in filing the appeal and rejected the same as being time barred. It is against this order that the present revision petition has been made. The main contention taken by the petitioner at the time of argument states that the petitioner was earlier working at Samparn Industrial Estate, EMCO Company, Plot No. 496, Road No. 28, Wagle Industrial Estate, Thane (West) - 400 604. As stated by them, they had shifted their place of work in and around April 2008 to 7, Jyoti Industrial Estate No. 2, behind Radha Krishna Hotel Upvan Industrial Area, Pokharan Road No. 1, Thane (W) 400 606. According to the petitioner, the respondent society was very much aware of the shifting of work place of the petitioner, but still they mentioned old address in the consumer complaint filed before the District Forum. The petitioner filed reply to the complaint before the District Forum on 19.04.2009. An Advocate was also representing them before the District Forum. However, the order dated 21.08.2010 was passed by the District Forum in the absence of the petitioner and his Advocate. The Advocate of the petitioner did not intimate the petitioner about the order. They have also not received the free copy of the order stated to have been dispatched on 19.10.2010 by the District Forum. They came to know about the said order on 30.07.2011, when they received a letter from the Advocate of the respondent in the shape of notice asking them to pay the amount as per orders of District Forum. They then contacted their Advocate and obtained certified copy of the order on 09.11.2011 and hence, the appeal was filed alongwith application for condonation of delay etc. The delay in filing the appeal had therefore, occurred because the petitioner came to know about the order of the District Forum very late and the factum of change of address escaped the notice of the District Forum.
IN reply, learned counsel for the respondent society stated that the change in premises is stated to have been made in 2008 but in the appeal filed before the State Commission the petitioner has given the old address only. The application for condonation of delay filed alongwith the appeal also mentions the old address. The State Commission had, therefore, rightly declined to condone the delay in filing the appeal.
AFTER the conclusion of the arguments, the learned counsel for the petitioner sent a document dated 29.10.2013 (arguments were heard on 23.10.2013) enclosing therewith a copy of the application dated 26.11.2008 filed by the complainant before the District Forum in which new address of the petitioner has been mentioned. It has been stated in this document that the District Forum ordered to issue a fresh notice on 26.11.2008 to the petitioner at the new address. However, an examination of the material before us indicates that such a plea has never been taken by the petitioner in their Memo of Appeal or Application for condonation of delay filed before the State Commission. We have examined the entire material on record and given a thoughtful consideration to the arguments advanced before us. In the grounds of the revision petition, it has been stated by the petitioner/OP that they had shifted their premises in and around April 2008. They have taken the main plea that the free copy of the order of the District Forum was never received by them, as it may have been sent to their old address. A perusal of the appeal filed before the State Commission in November 2011, however, clearly says that the petitioner has mentioned his previous address as, Plot No. 496, Road No. 28, Wagle Industrial Estate, Thane (W) in the memo of appeal as well as in the application for condonation of delay. It is quite obvious, therefore, that they are not justified in saying that because of non -dispatch of order at the new address, they could not know about the order passed by the District Forum. Further, it is very clear that the consumer complaint has been contested by the petitioner before the District Forum and they had also filed their written submissions before that forum through an Advocate. It was, therefore, their duty to keep track of the progress of the case and then to challenge the same, if required, within prescribed time before the State Commission.
THE petitioner have now stated that an application dated 26.11.2008 was filed by the complainant before the District Forum mentioning the new address of the petitioner and the District Forum ordered to issue notice at that address. However, such a plea has not been substantiated from the record because the order passed by the District Forum mentions the old address of the petitioner. Further, in the Memo of Appeal and in the Application for condonation of delay, this plea has never been taken by the petitioner, meaning thereby that they cannot get benefit of this plea at the present stage.
IN the light of these facts, it is clear that the State Commission have rightly observed in their order that there was no dispute about the address mentioned or supplied to the District Forum on which copy was sent. The State Commission have rightly observed that there was no sufficient ground to condone the delay. In a number of recent judgements, the Hon ''ble Apex Court have also held that unless there is a cogent and convincing explanation for the delay in filing an appeal, the same should not be condoned.
HON ''ble Apex Courtin (2012) 3 SCC 563 - Post Master General and Ors. Vs. Living Media India Ltd. and Anr. has not condoned delay in filing appeal even by Government department and further observed that condonation of delay is an exception and should not be used as an anticipated benefit for the Government departments.
HON ''ble Apex Courtin 2012 (2) CPC 3 (SC) - Ansul Aggarwal Vs. New Okhla Industrial Development Authority observed as under: "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 ".
Based on the view taken in the aforesaid judgements and looking at the facts of the present case, it is made out that there was no sufficient ground for condonation of delay in filing the appeal before the State Commission and they have rightly refused to condone the said delay.
IN the light of the above discussion, it is held that the order passed by the State Commission does not suffer from any infirmity, illegality, or jurisdictional error and the same is affirmed. Present revision petition is ordered to be dismissed with no order as to costs.