Before the Hon’ble State Consumer Disputes
Redressal Commission, West Bengal
11A, Mirza Ghalib Street, Kolkata – 700087
Under the Consumer Protection Act 2019
Revision Petition No. RP/121/2023
(arisen out of the order dated 20th day
of January’ 2023, in Case No. Complaint Case Number CC/1/2022, of the District
Commission, South 24 Parganas)
In
the matter of ;
Indian
Overseas Bank, & Others,
________Revisionists
-
Versus
–
Kalyan
Chatterjee,
________Respondent
Written
Objection on the application for condonation of delay;
The humble
petition of the above named respondent Kalyan Chatterjee, most respectfully;
Sheweth
as under;
1. That the
Petition under objection is not tenable in the given form.
2. That the
Petition under objection has been cited as an application under Section 14 of
the Limitation Act, 1963, which is not applicable under the Consumer Protection
Act, 2019, it would be an application for condonation of delay under Section 5
of the Limitation Act’ 1963. Pertinently petition under objection cited no due
diligence of the revisionists in preferring their present Revision Application
under Section 47(1)(b) of the Consumer Protection Act, 2019, therefore the
petition under objection is liable to be dismissed inlimnie.
3. That the above
referred revisionists are the Opposite Parties in a Consumer Case no. CC/1/2022
and the Respondent herein is a Consumer Complainant, which is pending before
the Learned District Consumer Disputes Redressal Commission, Baruipur, South 24
Parganas. The Stage of the said Consumer Complaint is fixed for argument,
therein. The said Consumer Case is pending at its appropriate stage for
adjudication it has not yet disposed, being pending at the behest of the
Revisionists.
4. That the
impugned Order dated 20th day of January, 2023, has been rightly and
appropriately passed in CC/1/2022, by the Learned District Consumer Disputes
Redressal Commission, South 24 Parganas after affording several opportunity to
the revisionists herein. This is the revisionists who did not due diligently
acted upon on any occasion even after availing several opportunity in the said
Consumer Case before the Learned District Consumer Disputes Redressal
Commission, South 24 Parganas.
5. That the
impugned Order dated 20th day of January, 2023, passed in Consumer
Case no. CC/1/2023, by the Learned District Consumer Disputes Redressal
Commission, South 24 Parganas, is an interim order in a consumer proceeding
pending before the Learned District Commission, therefore the present Revision
Application under Section 47(1)(b) of the Consumer Protection Act, 2019, should
be preferred within a period of 90 (Ninety) days.
6. That the
Revisionists insist of preferring the present Revision application before the
Hon’ble State Consumer Disputes Redressal Commission, West Bengal, lodged an
Appeal under Section 41 of the Consumer Protection Act’ 2019, which has
registered as A/99/2023 {Indian Overseas Bank and Others – Versus – Kalyan
Chatterjee}, on 22/03/2023, and the same was also beyond the limitation and
thus the said appeal accompany with the petition of condonation of delay
petition placed by the present Revisionist. The Revisionist endorsed the said
appeal as “NOT PRESSED” only on 10-08-2023, therefore in view of such fact the
said appeal has been dismissed being not pressed. The Hob’le State Commission
did not give any leave to file a fresh any other appropriate proceeding, to the
Revisionist.
7. That barely on
the face of record of the Consumer Complaint, the Appeal, and the present
Revisaion Application, well established that the revisionists are not due
diligent in placing their steps in terms of the prescribed provisions of the
Consumer Protection Act’ 2019, as well as the facts in its entirety, before the
Hon’ble Commission with clean hands, so far for the fair and appropriate adjudication.
The Condonation of delay application of the revisionists is nothing but a
futile attempt to survive themselves illogically.
8. That the
impugned Order was passed on 20-01-2023, and the present Revision Petition
under Section 47(1)(b) of the Consumer Protection Act’ 2019, has been placed
only on 19-08-2023, thus a period of 211
(Two Hundred Eleven) days or 6 (Six) months and 30 (Thirty) days has been
elapsed; While the period of limitation being 90 (Ninety) days accommodate for
the Revision application, the period of 121 (One Hundred Twenty One) days lies to explain sufficiently the cause which
shows to prevent you in placing the revision application within period of
limitation. The present application under Section 14 of the Limitation Act,
1963, do not give any explanation being sufficient cause and even do not
indulge themselves to express about the period of delay, so far therefore the
present application under Section 14 of the Limitation Act, 1963, is not
tenable and liable to be dismissed inlimnie
with exemplary cost.
9. That the
application under Section 14 of the Limitation Act’ 1963, placed by the
Revisionists are groundless rather it will be better to say that there is no
ground at all in placing their such application. The citation of application
under Section 14 of the Limitation Act, 1963, is wrong and the same is not
tenable. However, if we consider the said application being the application for
condonation of delay preferred under Section 5 of the Limitation Act, 1963,
Thus, while deciding an
application under Section 5 of Limitation Act, the courts must adopt a liberal
approach, provided there is no gross negligence, deliberate inaction or lack of
bona fide imputable to the party seeking condonation of delay. Further, while
considering the application seeking condonation of delay, the period of delay
is not the criteria. A short delay may not be condoned in absence of an
acceptable explanation while a large delay may be condoned if the explanation
is satisfactory. In the instant case, the Revisionists are the Nationalized
Bank with a legal department. The application for condonation of delay is
highly casual in nature, it lacked material particulars and did not disclose
sufficient cause for the condoning the delay. A bald statement of taking
opinion from some counsels could not be taken as a sufficient cause. Holding
thus, the same views, the Delhi High Court denied to condone the delay and
dismissed. [Lifelong Mediatech (P) Ltd. v. United India Insurance Co.
Ltd., 2018 SCC OnLine Del 9559, dated 03-05-2018].
10.
That
while the impugned order dated 20th day of January, 2023, passed in
Consumer Case no. CC/1/2023, by the Learned District Consumer Disputes
Redressal Commission, South 24 Parganas, is an interim order in a consumer
proceeding pending before the Learned District Commission, South 24 Parganas. The Concise statements and the
direction of the said impugned order dated 20/01/2023, is as follow as “The case record is put up today for Order
regarding acceptance of show-cause as well as W.V. filed by the O.Ps. on
25.07.2022. It appears from the record that last date for filing W.V. was
01.03.2022. Thereafter, if we enlarge the same by adding 90 days grace period
it will be on 01.06.2022 which is the ultimate date for filing W.V. But it is
reflected from the record that W.V. has been filed on 25.07.2022 and the
ex-parte order was passed by Order dated 29.06.2022 after the expiry of the
statutory period + grace period. Therefore, this Commission cannot extend
further time limit for filing W.V. by the O.Ps. Therefore, the show-cause
petition filed by the O.Ps. is devoid of merit and as such we are not inclined
to accept the same. Hence, it
is ORDERED That the show-cause
petition filed by the O.Ps. on 25.07.2022 is not accepted and simultaneously
the W.V. filed by the O.P. on 25.07.2022 cannot be accepted”.
11.
That
Section 51(5) of the Act grants power to the National Commission to set aside
the ex parte orders passed by the State Commission and Section 61 of the Act
grants power to the National Commission to set aside its own ex parte orders.
But there is no specific provision in the Consumer Protection Act that
expressly grants power to the District Commission to set aside the ex parte
orders passed by them. Therefore, the District Commission has no power and / or
jurisdiction to accept the written version beyond the statutory period
prescribed under the Act i.e. 45 days in all.
12.
That
the controversy is squarely covered by the judgment of the Hon’ble Supreme
Court reported in (2011) 9 SCC 541 (Rajib Hitendra Pathak and others Vs. Achyut
Kashinath Karekar and another ) wherein it was held that the “State Commission
or District Consumer Forum have no power to set aside their own ex parte
orders”. Paras 35, 36,37,38 & 39 of the said judgment are relevant which
are reproduced as under :-
“35. We have
carefully scrutinized the provisions of the Consumer Protection Act, 1986. We
have also carefully analyzed the submissions and the cases cited by the learned
counsel for the parties.
36. On careful
analysis of the provisions of the Act, it is abundantly clear that the
Tribunals are creatures of the Statute and derive their power from the express
provisions of the Statute. The District Forums and the State Commissions have
not been given any power to set aside ex parte orders and power of review and
the powers which have not been expressly given by the Statute cannot be
exercised.
37. The
legislature chose to give the National Commission power to review its ex parte
orders. Before amendment, against dismissal of any case by the Commission, the
consumer had to rush to this Court. The amendment in Section 22 and
introduction of Section 22-A were done for the convenience of the consumers. We
have carefully ascertained the legislative intention and interpreted the law
accordingly.
38. In our
considered opinion, the decision in Jyotsana's case laid down the correct law
and the view taken in the later decision of this Court in New India Assurance
Co. Ltd. is untenable and cannot be sustained.
39. In view of
the legal position, in Civil Appeal No.4307 of 2007, the findings of the
National Commission are set aside as far as it has held that the State
Commission can review its own orders. After the amendment in Section 22 and
introduction of Section 22A in the Act in the year 2002 by which the power of
review or recall has vested with the National Commission only. However, we
agree with the findings of the National Commission holding that the Complaint
No.473 of 1999 be restored to its original number for hearing in accordance
with law.”
13.
That
the same issue was also there before the Hon'ble Supreme Court in judgment of
case Lucknow Development Authority Vs. Shyam Kapoor in connection with Civil
Appeal No. 936 of 2013 decided on 05/02/2013 wherein earlier judgment of
Supreme Court passed in connection with the case namely Rajeev Hitendra
Pathak's case (Supra) was relied and it was held that "The District Forum
and the State Commissions have not been given any power to set aside ex parte
orders and power of review and the powers which have not been expressly given
by the Statute cannot be exercised”.
14.
That
the Constitutional Bench of the Hon’ble Apex Court reported in New India
Assurance Co. Ltd. Vs. Hilli Multipurpose Cold Storage Pvt. Ltd. , 2020 (5) SCC
757 has pronounced that the limitation period under section 13(2)3 of the
Consumer Protection Act, 1986 could not be exercised beyond the statutory
prescribed period of 45 days.
15.
That
the case in hand clearly shows that W.V. filed by the O.Ps. (Revisionists) on 25.07.2022. As it appears
from the record that last date for filing W.V. was given on 01.03.2022.
Thereafter, if the same by adding 90 days grace period it will be on 01.06.2022
which is the ultimate date for filing W.V.; But it is reflected from the record
that W.V. has been filed on 25.07.2022 and the ex-parte order was passed by
Order dated 29.06.2022 after the expiry of the statutory period + grace period.
Thus there is no substantial merit to intervene with the said impugned Order
dated 20-01-2023. The
impugned order passed by the Learned District Commission is within the
jurisdiction and which is not bad in law. There is no scope of interference
with the impugned order.
16.
That
pertinently the contents and purports of the petition under objection have not
yet been substantiated with any document or paper in establishing the
truthiness. The cause of delay purportedly tried to elaborate in the statements
of the paragraph number 4, 5, 6, 7, 8, 9, and 10, of the petition under
objection; but without any paper, so far.
(a) With reference
to the paragraph number 4 of the petition under objection the revisionists
stated that the certified copy of the impugned order dated 20-01-2023, was
obtained only on 24-03-2023; but failed to provide the same with the present
revision petition under Section 47(1)(b) of the Consumer Protection Act’ 2019
therefore such statement is false and vague based on illusionary vision in
establishing their concocted story.
(b) With reference
to the paragraph number 5 of the petition under objection the revisionists did
not place any paper to show that the direction given by the higher authority of
the petitioner’s bank ever required to take opinion before filing an appeal or
revision by the two or more opinions from the empanelled advocate upon which
the higher authority will able to decide whether the bank will preferred an
appeal or not, therefore such statement is false and vague based on illusionary
vision in establishing concocted story, as no rules or regulation has ever been
termed therein;
(c) With reference
to the paragraph number 6 of the petition under objection the revisionists
stated that on 22-03-2023, the Learned Advocate preferred to file an appeal
under section 41 of the Consumer Protection Act, 2019, therefore the statements
in the paragraph number 4 of the petition under objection is established to be
a false statements which says that the certified copy of the impugned order
dated 20-01-2023, has been obtained by the revisionists only on 24-03-2023, as
the appeal cannot prefer in absence of any certified copy of the impugned
judgments, since the purported appeal has been placed on 22-03-2023, prior to
obtaining the certified copy of the impugned order. The Present Revision
Petition has been placed by the Revisionists probably without any Certified
Copy of the Impugned Order dated 20-01-2023, as the same is not available with
the copy which has ever been served by the Hon’ble Commission to the
Respondent, therefore the petition under objection is liable to be rejected at
once and inlimnie;
(d) With reference
to the paragraph number 7 of the petition under objection the revisionists
states that the revisionists realized at the time of hearing of the condonation
petition in the said purported appeal, that the said appeal under Section 41 of
the Consumer Protection Act’ 2019, was a cause of their technical error made on
the part of the revisionists’ Learned Advocate; But failed to explained the
meaning of such technical error, what’s about and How it was cause at the
behest of the Learned Advocate of the Revisionists, who is well qualified and
able to practices Law. Thus the statements under the garb of so called
technical error is not sufficient to accept and to take any liberal view while
considering an application for condonation of delay, therefore the petition
under objection is liable to be rejected at once and inlimnie;
(e) With reference
to the paragraph number 8 of the petition under objection the revisionists
stated that the reliefs sought for as well as the facts and grounds are same as
stated in the said purported appeal under Section 41 of the Consumer Protection
Act’ 2019, which was registered as A/99/2023, and the same was “NOT PRESSED” on
10-08-2023. The Revisionists do not take any recourses to states such facts and
grounds and the relief sought for, in their present revision application as
well in the petition under objection. The Revisionists do not propose any
manner by which such facts, grounds and relief sought therein in the said
purported appeal being A/99/2023, can be imported in the present revision
application as well as in the petition under objection. The far remote facts,
grounds, and the relief sought for, while the same has been dismissed without
any leave of the Hob’ble Commission as “NOT PRESSED” by the present revisionists,
therein, the same cannot be considered or taken to be considered on any stretch
of imaginations, while taking the
petition under objection found without any ground, so far, therefore the
petition under objection is liable to be rejected at once and inlimnie;
(f)
With
reference to the paragraph number 9 of the petition under objection the revisionists
not able to show by way of placing any evidentiary valued paper that there is no
laches on the part of the revisionists in preferring the present revision petition
with in the statutory period of 90 (Ninety) days, and there is every possibility
to succeed in the revision petition of the revisionists. It’s clearly appeared that
the present petition under objection has been placed in a very casual and callous
manner, therefore the petition under objection is liable to be rejected at once
and inlimnie;
(g) With reference
to the paragraph number 10 of the petition under objection the appellants did
not place any paper to show that there is no laches on the end of your
petitioners to prefer the said appeal within the stipulated time but the
circumstances, as stated herein above, there is delay of 121 (One Hundred Twenty
One) days for preferring the same. The petitioners submit that there is every
possibility to succeed in the said appeal by your petitioners. Therefore such
statement is false and vague based on illusionary vision in establishing
concocted story, as no proof of diligent performance has ever been placed by
way of any evidentiary value paper or document and the circumstances has not
been sufficiently placed which shows to prevent the revisionists in preferring
the present revision petition within its statutory period given, the delay of
purported 121 (One Hundred Twenty One) days has not been sufficiently given with
diligent reasoning, possibility to
succeed in the said appeal does not arise while no appeal lie challenging the
impugned order dated 20th January, 2023, being an interim order in a
Consumer Case no. CC/1/2022, which still pending for adjudication before the
Learned District Consumer Disputes Redressal Commission, South 24 Parganas, therein;
17.
That
in the case of Ansul Agarwal Vs. New Oghla Industrial Development Authority
(2011) 14 SCC 578, the Hon’ble Supreme Court has warned the Commissions to keep
in mind while dealing with such applications the special nature of the Consumer
Protection Act. The Hon’ble Supreme Court has held 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”.
18.
That
in a recent judgment the Hon’ble Supreme Court observed that condonation of
delay would depend on the background of each and every case; and routine
explanation would not be enough. The Hon’ble Supreme Court in University of
Delhi vs. Union of India & Ors. in Civil Appeal Nos.94889489 of 2019
(Arising out of SLP (Civil) Nos.55815582 of 2019) decided on 17.12.2019 has
held as under :- “The consideration for condonation of delay would not depend
on the status of the party namely the Government or the public bodies so as to
apply a different yardstick but the ultimate consideration should be to render
even handed justice to the parties. Even in such case the condonation of long
delay should not be automatic since the accrued right or the adverse
consequence to the opposite party is also to be kept in perspective. In that
background while considering condonation of delay, the routine explanation Page
24 of 34 would not be enough but it should be in the nature of indicating
“sufficient cause” to justify the delay which will depend on the backdrop of
each case and will have to be weighed carefully by the Courts based on the fact
situation ................ That apart when there is such a long delay and there
is no proper explanation, laches would also come into play while noticing as to
the manner in which a party has proceeded before filing an appeal”.
19.
That
pertinently the parameter of condonation of delay application is “sufficient
cause” meaning thereby the entirety of the provisions under Section 5 of the Limitation
Act, 1963, which prevented the revisionists in preferring the revision petition
and while the same has not been apparently placed with any evidentiary document
by the revisionists thus the cause has not been sufficiently placed by the revisionists
in seeking condonation of delay, therefore liable to be dismissed inlimnie.
20.
That
this application is made bonafide and
in the interest of administration of Justice.
It is therefore prayed that your
Lordship would graciously be pleased to accept the written objection of the
respondent, and to dismissed the petition for condonation of delay placed by
the revisionists, in the interest of administration of Justice, and or to pass
such other necessary order or orders as your Honour may deem fit and proper for
the end of justice.
And
for this act of kindness, the Petitioner as in duty bound shall ever pray.
AFFIDAVIT
I,
Kalyan Chatterjee, Son of Adhir Kumar Chatterjee, aged about 40 years, by faith
Hindum by Occupation Law Professional, residing at Village – Radhakantapur,
Police Station – Raidighi, District South 24 Parganas, Pin – 743354, and also
at Narendrapur Station Road, Post Office Ramkrishna Pally, Kolkata – 700150, do
hereby solemnly affirm and declare as follows;
1. That I am the
respondent in the present revision petition. I am acquainted and conversant
with the material facts, as stated therein. I am competent to swear this
affidavit.
2. That the facts
contained in my written objection, have not been repeated herein for the sake
of brevity may be read as an integral part of this affidavit and are true and
correct to my knowledge and belief.
The above
statements are true to my knowledge and belief.
DEPONENT
Identified by
me,
Advocate
Drafted &
prepared in my Chamber;
Advocate
Date :
_________day of ______’ 2023;
Place :
Kolkata
N O T A R Y
Before
the Hon’ble State Consumer Disputes Redressal Commission, West Bengal
11A,
Mirza Ghalib Street, Kolkata – 700087
Under the Consumer Protection Act 2019
Revision Petition No.
RP/121/2023
(arisen out of
the order dated 20th day of January’ 2023, in Case No. Complaint
Case Number CC/1/2022, of the District Commission, South 24 Parganas)
In
the matter of ;
Indian
Overseas Bank, & Others,
________Revisionists
-
Versus
–
Kalyan
Chatterjee,
________Respondent
Written
Objection
on
the application for condonation of delay;
Drafted & Prepared
in my Chamber;
Ashok Kumar Singh, Advocate High Court
Bar Association Room No. 15, High Court Calcutta. Mobile Number : 9883070666 / 9836829666
Email : aksinghadvocate@rediffmail.com
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