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2010 DIGILAW 950 (CAL)

New India Assurance Co. Ltd. v. Somnath Ganguly

2010-08-10

PRASENJIT MANDAL

body2010
JUDGMENT Prasenjit Mandal, J. 1. THIS application is directed against the order no.3 dated January 8, 2009 passed by the State Consumer Disputes Redressal Commission in F.A. No.169 of 2009 arising out of Consumer Redressal Forum, Calcutta, Unit II in its case no.156 of 2003. 2. THE short fact involved in this case whether the commission was justified in not entertaining an application for condonation of delay in preferring the appeal. THE opposite parties filed an application under Section 12 of the Consumer Protection Act, 1986 against the petitioners and that application was contested by the petitioner herein. THE said application came up for hearing before the learned District Forum on April 23, 2004 and the learned District Forum was pleased to dismiss the application holding that M/s. Satabdi Emporium or its partners are not the consumers in terms of the provisions of the Consumer Protection Act. THE aforesaid order of dismissal was challenged before the Hon'ble State Commission by filing S.C. Case No.224/A/04 and the Hon'ble State Commission after hearing both the parties directed the District Forum to hear the case afresh. Thereafter, the District Forum allowed the said claim application. Being aggrieved, the applicant preferred the appeal bearing F.A. No.169 of 2009 before the State Consumer Disputes Redressal Forum. There was 210 days delay in preferring the said appeal and as such, the petitioner filed an application for condonation of the delay in preferring the said appeal before the Hon'ble State Commission. THE Hon'ble State Commission dismissed the application by the impugned order and consequently the appeal was dismissed. Being aggrieved, this application has filed. Having considered the submission of the learned Advocate of both the sides and on perusal of the impugned order, I find that the impugned order was passed on 25.08.2008 and the certified copy was applied for on 21.04.2009. The certified copy was made available on 04.05.2009 and the appeal was preferred on 06.05.2009. Thus, there were 210 days delay in preferring the appeal. The Hon'ble State Commission did not accept the explanation of delay to the effect that the concerned file was misplaced in the Chinsurah Branch office during renovation and the same could not be traced out by the learned Advocate. Such ground was disbelieved. 3. MR. Bhattacharyya, learned Advocate appearing on behalf of the applicant, referred to the decision of N. Balakrishnan Vs. Such ground was disbelieved. 3. MR. Bhattacharyya, learned Advocate appearing on behalf of the applicant, referred to the decision of N. Balakrishnan Vs. M. Krishnamurthy reported in (1998) 7 SCC 123 particularly, the paragraph 9 to draw the attention of the Court to the effect that the appellate court should scrutinize thoroughly when the discretionary power was not properly exercised by the court below in rejecting the application for condonation of the delay. For convenience, the said paragraph 9 is quoted below: "9. It is axiomatic that condonation of delay is a matter of discretion of the court. Section 5 of the Limitation Act does not say that such discretion can be exercised only if the delay is within a certain limit. Length of delay is no matter, acceptability of the explanation is the only criterion. Sometimes delay of the shortest range may be uncondonable due to a want of acceptable explanation whereas in certain other cases, delay of a very long range can be condoned as the explanation thereof is satisfactory. Once the court accepts the explanation as sufficient, it is the result of positive exercise of discretion and normally the superior court should not disturb such finding, much less in revisional jurisdiction, unless the exercise of discretion was on wholly untenable grounds or arbitrary or perverse. But it is a different matter when the first court refuses to condone the delay. In such cases, the superior court would be free to consider the cause shown for the delay afresh and it is open to such superior court to come to its own finding even untrammelled by the conclusion of the lower court." 4. HAVING regard to the facts and circumstances of the cases, I am of the view that the applicant has not be able to explain the delay properly. The explanation as offered by the applicant is not acceptable at all that because of the renovation of the Chinsurah Branch Office, the file was misplaced and the learned dealing advocate could not trace the said file. I am of the view that the learned Judge rightly observed that the applicant could not offer sufficient reasons for not-taking steps. So, I have no other alternative but to support the findings of the Hon'ble State Commission. Therefore, I am of the opinion that this application is meritless. Accordingly, this application is dismissed. I am of the view that the learned Judge rightly observed that the applicant could not offer sufficient reasons for not-taking steps. So, I have no other alternative but to support the findings of the Hon'ble State Commission. Therefore, I am of the opinion that this application is meritless. Accordingly, this application is dismissed. Considering the circumstances, there will be no order as to costs.