Soumen Chakraborty vs Pradip Kumar Banerjee

This appeal has been filed under section 19 of The Consumer Protection Act, 1986 in challenge to the Order dated 30.10.2017 of the State Commission in complaint no. 106 of 2016.

We have heard the learned counsel for the developer (the appellant herein) and the complainant in person (the respondent herein). We have also perused the material on record, including inter alia the State Commission’s impugned Order dated 30.10.2017, the application for condonation of delay in filing the appeal and the memorandum of appeal.

The appeal has been filed with self-admitted delay of 455 days. We see that the grounds taken in the application for condonation of delay are, one, that the developer was not aware of the Order of the State Commission as it was passed ex parte against it and it came to know of the same only when it received summons in execution proceedings, and, two, the advocate who was entrusted with the task of filing the appeal kept delaying the same.

Learned counsel for the developer has nothing more to add and he reiterates that as the impugned Order of the State Commission was passed ex parte against it, the developer was not aware of the same and it came to know about the Order only when summons were received in execution proceedings.

The complainant on the other hand submits that the State Commission proceeded ex parte against the developer after due service through publication and the developer was well aware of the case but purposely chose to absent itself from appearing before the State Commission.

We may observe that service through publication is done as a last resort and is deemed to be sufficient and effective service. We do not find any merit in the contention that despite paper publication the developer was not aware of the case.

One has to presume the existence of any fact which it thinks likely to have happened, regard being had to the common course of natural events, human conduct and public and private business, in their relation to the facts of the case. In the absence of anything to the contrary, we presume that the State Commission satisfied itself in the normal course that notice was duly served (by publication in this case) on the developer before proceeding ex parte against it.

It is also not without significance to note that no apparent difficulty in the service of the summons was confronted in the execution proceedings.

Though we have already observed that it is difficult to accept that the developer was not aware of the case but even then in all eventualities the developer was necessarily aware of the case on 05.03.2018 when an advocate had appeared on its behalf in the execution proceedings before the State Commission. Yet still from 05.03.2018 to 01.02.2019 i.e. for 333 days it did not file the appeal when the statutory period prescribed under section 19 of The Consumer Protection Act, 1986 is 30 days. This self-admitted and established delay of 303 days beyond the prescribed period even is in itself palpably abnormal and necessarily requires justified sufficient cause for condonation.

Learned counsel for the developer has tried to fall back on the argument that the advocate who was given the task of filing the appeal kept on delaying the same and the said delay owes to nothing else than counsel’s inaction.

In this regard the complainant however draws specific attention to sub-para ‘j’ and sub-para ‘m’ of para 4 of the application for condonation of delay, which are being reproduced below for reference:

j. That on or about 10.01.19 the appellant got sick and could not contact the said Ld. Advocate and also could not go to his chamber for enquiring about the development of the matter.

m.That on about 10.01.19 the appellant again went to his ld. Advocate’s chamber but the Ld. Advocate communicated that unfortunately he could not make ready the appeal on that day.

The complainant submits that mutually exclusive and inconsistent averments have been made in the above-quoted sub-paras and all this only show that a futile unmerited attempt is being made to blame the advocate in order to unburden its own onus.

On a query from the bench learned counsel for the developer is not able to explain the incongruities between sub-para ‘j’ and sub-para ‘m’ and is unable to furnish any explanation in this regard whatsoever.

The contentions raised on behalf of the developer do not appear to be very convincing.

The contents of the two sub-paras quoted above are irreconcilable with each other. This only adds up towards further demonstrating that the grounds of seeking condonation of delay are not emanating from any truthful version of events but are untruthful excuses and pretences.

When the learned counsel submits that after getting summons in the execution proceedings an advocate was approached and engaged and though he was dealing with the execution proceedings quite alright but the same advocate for reasons absolutely unknown was not filing the appeal before this Commission and was keeping the developer in the dark, it simply appears to be a desperate attempt to somehow pass the blame and make an otiose attempt to anyhow bridge up the hiatus of delay.

As such it is patently clear that after first willfully choosing to absent itself before the State Commission despite paper publication the developer is now making an unfounded and untenable explanation that it was not aware of the case before the State Commission.  Additionally even when the developer cannot claim any more that he was not aware of the case after putting in appearance in the execution proceedings, a futile attempt is being made to blame an advocate without any tangible facts in support and with patent irreconcilable inconsistencies in the narration.

All this points towards an unmerited attempt to anyhow explain the unusual abnormal delay coupled with a perfunctory and casual attitude towards the law of limitation.

Ordinarily one leans in favour of the defaulting appellant for the purpose of condoning the delay and prefers to decide the lis on merits rather than rejecting the same at the threshold stage but even a liberal exercise of such kind will require at least some semblance of a plausible explanation being proffered to bridge up the significant gap after which the appeal has been filed. Here, but, the ground being offered appears to be wholly inadequate if not mendacious. It alongside bears emphasis that the complainant has a favourable Order of the State Commission. The right which has accrued to him cannot be made a victim of inordinate efflux of time without just cause. The powers which have been conferred to condone the delay have got to be exercised judiciously and not arbitrarily and certainly not at will either whimsically or capriciously. The discretion to be exercised in such matters is not an exercise of some kind of privilege or prerogative, it is essentially a legal exercise and has to be lawfully harnessed with judicious discipline. The object and purpose behind the law of limitation cannot be either swung into oblivion or be ignored with apathy. A complete disregard of the law of limitation will eventually frustrate and defeat the salutary purpose which inspires the enactment in this regard wherever provided.

In the present case one does not see even a semblance of an explanation which may constitute a good ground to condone the delay. The onus of the developer to show the factual basis from which may emanate such ground remains undischarged. The application for condonation of delay is palpably without worth or substance if not a bundle of untruths altogether. Sufficient cause to condone the delay is not at all forthcoming.

As such we have no hesitation in dismissing the application.

Resultantly the appeal stands dismissed on limitation.

Though we have not entered into the merits of the matter, but having regard to the overall facts and circumstances of the case and also seeing the quantum of the award we are satisfied that no miscarriage of justice is being occasioned.

The Registry is requested to send a copy each of this Order to the parties in the appeal and to their learned counsel as well as to the State Commission immediately. The stenographer is also requested to upload this Order on the website of this Commission immediately.