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M/s. Kolkata Edu & Business Gurukul v/s Sahabuddin Naskar & Others

    Revision Petition No. 65 of 2018

    Decided On, 13 February 2019

    At, National Consumer Disputes Redressal Commission NCDRC

    By, THE HONOURABLE MR. PREM NARAIN
    By, PRESIDING MEMBER

    For the Petitioner: Sourabh Leekha , Advocate. For the Respondents: --------



Judgment Text


This revision petition has been filed by the petitioner against the order dated 01.08.2017 of the State Consumer Disputes Redressal Commission, West Bengal, (in short ‘the State Commission’) passed in First Appeal No.A/1168/2016.

2. The brief facts of the case are that the respondent Nos.1 & 2 deposited certain amounts as investment with the petitioner and petitioner was required to pay interest @ 10% p.a. on the amounts. The petitioner opposite party paid interest only for one year and stopped paying later on. Respondent Nos.1 & 2 filed consumer Complaint before the District Forum and the District Forum proceeded ex-parte against the opposite party and passed the final order dated 4.8.2015 as under:-

“That the C.C. Case No.65 of 2015 (HDF 65 of 2015) be and the same is allowed ex parte with costs against the o.p.no.1 and dismissed against o.p.no.2.

The petitioners are entitled to get Rs.1 lakh each as prayed for and Rs.5,000/- each as litigation costs.

The o.p.no.1 is directed to pay the above sum to the petitioners within 30 days from the date of this order failing the petitioners would be enitled to interest @9% p.a. till realization and also the petitioners would be liberty to put the order in execution if o.p.no.1 failed to comply within the stipulated time.

Supply the copies of the order to the parties, as per rule.”

3. Aggrieved by the order of the District Forum petitioner/opposite party preferred an appeal bearing No.A/1168/2016 before the State Commission and the State Commission vide order dated 1.08.2017 dismissed the appeal mainly on the ground of limitation as the appeal was filed with the delay of more than 400 days.

4. Hence the present revision petition.

5. Heard the learned counsel for the petitioner at the admission stage and perused the record.

6. Learned counsel for the petitioner stated that the petitioner was proceeded ex-parte before the District Forum and therefore, the petitioner did not have any information about the order having been passed by the District Forum against the petitioner. Hence, the delay in filing the appeal was natural, however, the delay has been completely and satisfactorily explained in the application for condonation of delay filed before the State Commission.

7. Learned counsel for the petitioner stated that the Ld. State Commission had failed to appreciate that the delay in filing the appeal before the Ld. State Commission was initially due to the revisionist not being aware about the passing of the ex-parte order by the Ld. District Forum and later due to the illness of his earlier counsel. Thus, the revisionist was able to provide sufficient and reasonable explanation for the delay in filing the appeal before the Ld. State Commission by filing the certified copy of the ex-parte order passed by the Ld. District Forum which shows that the same was made available to the revisionist only on 18-10-2016, but completely ignoring the same, the impugned order was passed by Ld. State Commission without going into the merits of the case.

8. Learned counsel for the petitioner further stated that the Ld. State Commission had failed to appreciate that due to sudden Demonetization order passed by the Govt. of India, the revisionist was left with very little cash and thus it took him some time for first arranging the money and then preparing the draft for filing the appeal before Ld. State Commission.

9. It was further mentioned by the learned counsel for the petitioner that the Ld. State Commission had failed to appreciate that the Ld. District Forum had failed to call for and peruse the terms and conditions of the Agreement which was executed between the parties, copy of which was never filed before the Ld. District Forum by either of the Respondents No.1 and 2 deliberately and intentionally, and in the absence of perusing the terms of the Agreements between the parties, the Ld. District Forum had arrived at its conclusion without appreciating the true facts of the case judicially and the ex-parte order passed by the Ld. District Forum was thus liable to be set aside on this ground alone.

10. Learned counsel for the petitioner stated that the Ld. State Commission had failed to appreciate that both the respondents No.1 and 2 are demanding money/interest from the revisionist before the maturity of the scheme in defiance of the terms of the investment scheme, and thus the non-payment of the said money by the revisionist to the respondents No.1 and 2 cannot be considered as deficiency of service on the part of the revisionist.

11. It was argued by the learned counsel for the petitioner that the State Commission had failed to appreciate that the present dispute between the parties pertains to the recovery of money invested by both the respondents No.1 and 2 from the revisionist, for which the only remedy available before the respondents No.1 and 2 was to invoke the Arbitration clause which was part of the agreement between the parties and not to file a consumer complaint against the revisionist.

12. I have carefully considered the arguments advanced by the learned counsel for the petitioner and examined the material on record. The State Commission has not found the grounds given in the application for condonation of delay as sufficient to condone the delay of more than 400 days and the State Commission has observed the following:-

“It appears that the present Appeal has been filed 442 days beyond the statutory period of limitation. In order to justify such delay, it is firstly argued by the Appellant that due to illness of the Ld. Advocate, to whom the task of preparing Memo of Appeal was firstly entrusted, some delay occurred in filing the Appeal. Unfortunately, it is the settled position of law that Lawyer’s ground is no ground. Further, without disclosing the antecedents of the concerned Ld. Advocate and placing some sort of tangible proof, one cannot get away simply by blaming a stranger.

As for the medical ground, from the photocopies of treatment sheets on record it appears that from March, 2016 onwards Mr. Pankaj G. Gupta, Partner underwent treatment for his eye related problems. However, there is no day to day explanation as regards non-filing of Appeal prior to March, 2016 itself given that the impugned order was passed on 04-08-2015. Also, it being a partnership firm, what the other partners were doing during the period while Mr. Gupta was undergoing treatment, no explanation is given anywhere in the petition in question.

The appellant has also blamed the banking problem as one of the reasons for delayed filing of this Appeal. However, in absence of due clarification from the side of the appellant, we are totally at a loss to figure out how much time it took the Appellant to prepare the draft. Given that Govt. of India announced demonetization on 08-11-2016 and the instant Appeal filed only on 02-12-2016, it is hardly believable that it took the Appellant 24 days to arrange a draft.

Overall, the various grounds shown by the Appellant to justify a huge delay of 442 days (excluding the statutory period of limitation), to our mind is bereft of any merit.”

13. Hon’ble Supreme Court in Ram Lal and Ors. Vs. Rewa Coalfields Ltd., AIR 1962 Supreme Court 361, has observed;

“It is, however, necessary to emphasize that even after sufficient cause has been shown a party is not entitled to the condonation of delay in question as a matter of right. The proof of a sufficient cause is a discretionary jurisdiction vested in the Court by S.5. If sufficient cause is not proved nothing further has to be done; the application for condonation has to be dismissed on that ground alone. If sufficient cause is shown then the Court has to enquire whether in its discretion it should condone the delay. This aspect of the matter naturally introduces the consideration of all relevant facts and it is at this stage that diligence of the party or its bona fides may fall for consideration; but the scope of the enquiry while exercising the discretionary power after sufficient cause is shown would naturally be limited only to such facts as the Court may regard as relevant.”

14. Generally superior Courts take lenient view so far as condonation of delay is concerned, however, the Hon’ble Supreme Court in Ram Lal and Ors. Vs. Rewa Coalfields Ltd. (supra) has taken a view that even if sufficient cause is shown, it depends on the Court to allow condonation of delay or not. Obviously, this discretion cannot be arbitrary and has to be based on some consideration. In my view, this consideration depends on the merits of the case of the party seeking condonation of delay apart from other factors. In the present case, the petitioner has not stated anything in the grounds of revision petition as to why the order of the District Forum is not sustainable on merits. The only point regarding merit taken in the grounds of revision petition is that the District Forum has not considered the terms and conditions of the agreement as the same were not filed by the complainants before the District Forum. The petitioner has accepted the investments by the respondents but has not clarified in the revision petition as to why the respondents were not entitled to the relief granted by the District Forum. Condoning the delay and remanding the matter to the State Commission would only be justified if the petitioner has a strong merit in his case. As the petitioner admits the investments by respondents and has not mentioned anything in the grounds of revision petition as to why the respondents were not entitled to get the relief as granted by the District Forum, I do not think that any purpose will be served if the matter is remanded to the State Commission after condoning the delay. Moreover, I agree with the State Commission that grounds given in the application for condonation of delay are not sufficient to justify condonation of delay of more than 400 days. Hon’ble Supreme Court in Cicily Kallarackal Vs. Vehicle Factory, IV (2012) CPJ 1(SC) 1, has held the following:-

“4. This Court in Anshul Aggarwal v. NOIDA, (2011) CPJ 63 (SC) has explained the scope of condonation of delay in a matter where the special Courts/ Tribunals have been constituted in order to provide expeditious remedies to the person aggrieved and Consumer Protection Act, 1986 is one of them. Therefore, this Court held that while dealing with the application for condonation of delay in such cases the Court must keep in mind the special period of limitation prescribed under the statute (s).

5. In the instant case, condoning such an inordinate delay without any sufficient cause would amount to substituting the period of limitation by this Court in place of the period prescribed by the Le

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gislature for filing the special leave petition. Therefore, we do not see any cogent reason to condone the delay. 6. Hence, in the facts and circumstance of the case as explained hereinabove, we are not inclined to entertain these petitions. The same are dismissed on the ground of delay.” 15. In R.B. Ramlingam Vs. R.B. Bhavaneshwari, 2009 (2) Scale 108, Supreme Court observed:- “We hold that in each and every case the Court has to examine whether delay in filing the special appeal leave petitions stands properly explained. This is the basic test which needs to be applied. The true guide is whether the petitioner has acted with reasonable diligence in the prosecution of his appeal/petition”. 16. The above judgements are fully applicable in the present case and negligence and deliberate inaction are imputable to the petitioner in filing the appeal before the State Commission and accordingly I do not find any illegality, material irregularity or jurisdictional error in the order dated 01.08.2017 passed by the State Commission, which calls for any interference from this Commission. Consequently, revision petition No.65 of 2018 is dismissed at the admission stage.
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