W.B.S.E.B vs MALATI SAHA

THE petition for condonation of delay filed by the appellant is first taken up for hearing and disposal. We have noticed that there is a delay of 39 days in preferring the appeal after receiving the impugned interim order of the Forum below. Heard argument advanced by the appellant. It is the case of the appellant in the condonation petition that the impugned judgment was passed on 31.5.2004, and copy of the same was ready and issued on 9.6.2004. It is stated in the condonation petition that after obtaining the certified copy of the order the Local Supply Office of the appellant collected all necessary papers and relevant documents and also discussed the issue as to whether the appeal would be preferred or not. It took 6 days for coming to a final decision. THEreafter the matter was referred to the Divisional Office, where by taking 15 days the issues were seriously discussed amongst the responsible officers. THEn the file was referred to the Corporate Legal as well the legal advisor, who took 14 days for perusing the necessary records and preparing the note sheet. THEreafter the concerned Advocate who took 3 days'' time in preferring the appeal before the Commission. THE appeal was filed on 16.7.2004. It is submitted by the learned Advocate for the appellant, that the delay was not intentional and if the delay is not condoned and the appeal is not admitted the appellant will be irreparably prejudiced, not being able to challenge the impugned judgment.

THE authorised representative of the respondent appears but does not raise any objection against the petition for condonation of delay. In this context we may refer to the settled principle in respect of condonation of delay (Vide the decision reported in AIR 1987 Supreme Court 1353) namely that the Court should not adopt a pedantic attitude towards the condonation of delay and refusing to condone delay can result in a meritorious matter being thrown out at the very threshold and the cause of justice being defeated. Moreover as per the judgment passed by the Hon''ble Supreme Court reported in (2002) 9 SCC 593, where it has held that the statutory period of limitation i.e., 30 days need not be explained.

Therefore, in the instant case only 9 days'' delay has taken place and for that the explanation which has been offered is, in our opinion, on the whole, satisfactory. Considering the well settled principle held by the Apex Court in a number of judgments that Courts should take reasonable and liberal view regarding condonation of delay, we are inclined to observe that the explanation is on the whole convincing for the purpose of our coming to a finding that the delay of only 9 days should be condoned. Having regard to the nature of dispute between the parties, we are of the view that the delay caused in filing the application by the appellant was not wilful and hence is worthy of being condoned. However, in the facts and circumstances of the case we are also of the view that for meeting both ends of justice the delay shall be condoned.

ACCORDINGLY it is ordered that the petition for condonation of delay under consideration be allowed on contest without any cost. After condoning the delay we take up the matter for admission hearing. We have heard the arguments of the appellant and the appeal is admitted and registered. We also take up the appeal for final hearing and disposal at the instance of both the parties.

THIS appeal has arisen out of the judgment passed by the District Forum, Midnapore on 31.5.2004 in Case No. 27/2004 wherein the Forum below directed the O.P.-W.B.S.E.B. to issue revised bills in cancellation of bills preferred from November, 2001 to December, 2003 on the basis of actual meter reading. The Forum has also awarded compensation and cost of Rs. 500/- in favour of the complainant. The facts of the case of the complainant before the Forum were that being a consumer under the O.P.-W.B.S.E.B. in commercial category she received some electric bills which were highly inflated and fictitious according to her. In spite of several correspondences with the O.P. it did not take any steps to rectify the bills. Thereafter she filed the case before the Forum praying for direction upon the O.P. to rectify the disputed bills and also prayed for cost and compensation for harassment. Being dissatisfied with the above mentioned order the W.B.S.E.B.-appellant has preferred the present appeal before this Commission. The learned Counsel for the appellant submits that the complaint was not maintainable since the connection was commercial in nature and was taken for the use of a jewellery shop for commercial purpose. It has been further submitted by the appellant that after the amendment of the Consumer Protection Act any complaint arising out of commercial interest cannot be regarded as a consumer dispute. According to the appellant the judgment passed by the Forum below is erroneous and liable to be set aside.

ON careful perusal of the order and hearing from both sides we are convinced by the argument advanced by the appellant. It is well known that the amendment of the Consumer Protection Act came into force on and from 15.3.2003, while the complaint was filed before the Forum in the year 2004. After the amendment, a person who avails service for any commercial purpose cannot come within the definition of ''consumer''. In the instant case, as the respondent is not a consumer, he cannot approach the Consumer Court. The authorised representative of the present respondent also admits such legal provision of the amended Consumer Protection Act. So we are inclined to dismiss the complaint.

THEREFORE, the appeal is allowed on contest and the impugned judgment passed by the Forum is set aside, however, without any cost. Appeal allowed.