Before
the Hon’ble State Consumer Disputes Redressal Commission, West Bengal, at
Premises being no. 11 A, Mirza Ghalib Street, Kolkata-700087.
Memo of Appeal no. FA / 712 / 2014.
In the matter of :
Dr. Pinaki Baidya (
Dr. P. Baidya ) and Others.,
__________Appellants.
- Versus _
Shri Dhendup Rai ,
__________Respondent.
Written
Objection of Respondent Shri Dhendup Rai, to the Petition for Condonation of
delay, filed by the Appellants.
1.
That the petition under objection is not
maintainable in law.
2.
That
the petitioner under objection is false, baseless, mala fide and an
harassing one and the petitioner is put to strict proof thereof.
3.
That
the statements made in Paragraph 1 of the petition under objection are matters
of record.
4.
That
the statements made in Paragraph 2 of the petition under objection are not
correct and as such hereby denied and disputed.
It is specifically stated that the order dated 30th day of
April’ 2014, was passed by the Learned Lower Forum in C.C. no. 14/D/2012, and
thus cause of action accrued to prefer appeal by the appellants if so they
advised. Though they did not preferred their appeal within a period of thirty
days as envisaged under the provisions of section 15 of the Consumer Protection
Act’ 1986, and moreover they did not describe any event of their due diligence
as stated by the appellants. As appears from the certified copy of the Order
dated 30-04-2014, that the same was applied for on 07-05-2014, and the
certified copy was ready for delivery on the same date as on 07-05-2014, and
the appellants taken the delivery as on 07-05-2014. The appellant failed to
substantiate their statements of referring for opinion to their Learned
Advocate on 10-05-2014. The Appellants did not place any piece of paper to show
such opinion, if any, before the Hon’ble Commission. The appellants failed to
show any sufficient cause of delay to place their appeal before the Hon’ble
Commission.
5.
That
the statements made in Paragraph 3, 4, 5, & 6, of the petition under
objection are not correct and as such hereby denied and disputed. It is stated
that the story of the appellants are of very general in nature and no specific
story has ever been asserted to show any sufficient cause for delay in filling
appeal before the Hon’ble State Commission. It is also stated that a prolong
period has been occurred as delay in filling of the present appeal by the
appellants though nothing has ever been described with detail particulars of
proper cause of day to day delay in filling the present appeal before the
Hon’ble State Commission and thus not acceptable in any manner and liable to be
dismissed with appropriate costs.
6.
That
the present memo of appeal filed under Section 15 of the Consumer Protection
Act’ 1986, by the Appellants herein as on 25th day of June’ 2014,
and placed the petition for condonation of delay without any sufficient causes
shown as to day to day before the Hon’ble Commission, and thus the petition of
condonation of delay is vague and frivolous petition, liable to be dismissed at
once.
7.
That
the present memo of appeal filed under Section 15 of the Consumer Protection
Act’ 1986, by the Appellants herein as on 25th day of June’ 2014,
and placed the petition for condonation of delay describing therein 18 (
eighteen ) days delay, are not correct and as such hereby denied and disputed.
It is stated that the order under challenge was passed on 30th day
of April’ 2014, by the Learned Lower Forum in C.C. no. 14/D/2012, and thus
cause of action accrued to prefer appeal by the appellant if so they advised.
The period to prefer appeal expired on 30-05-2014, and as the present appeal
filed on 25-06-2014, a total period of 55 ( fifty five ) days delayed and one
day if excluded as of period of obtaining certified copy thereof i.e.
07-05-2014, then it’s come as 54 days delayed appeal and in the event the
period of thirty days excluded as of the statutory period for preferring
instant appeal, for the sake of argument, then also it’s come as 24 ( twenty
four ) days delayed appeal, and thus a wrong description and concocted story
has been placed by the appellants, and therefore prayer of appellants for
condonation of delay should not entertained in the interest of administration
of justice.
8.
That
the present memo of appeal on affidavit consist of mere allegations
un-supported by documents or papers, hence liable to be dismissed.
9.
That
the The matter of condonation of delay, it is an established position that
every day's delay has to be explained and a person who seeks the exercise of
the discretion to condone the delay in his favour cannot run away by making a
mere general statement or mere allegation unsupported by document or mere
passing of his laches upon his advocate.
10.
That
It is, however, necessary to emphasise 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 condition precedent for
the exercise of the discretionary jurisdiction vested in the Hon’ble Commission
by s. 15. If sufficient cause is not proved nothing further has to be done; the
application for condoning delay has to be dismissed on that ground alone.
11.
That
the appellant prays before the Hon’ble State Commission, as to consideration of
their story sympathetically, is not the matter concern of Law and even in the
facts, and thus liable to be dismiss with cost.
12.
That
your Petitioner states and submits that in Harshita Versus Dr. Aruna Kulkarni,
reported in II ( 2014 ) CPJ 239 (NC), the Hon’ble National Consumer Disputes
Redressal Commission, New Delhi, held as application general and vague – Day to
day delay not explained – Sufficient cause not shown – Delay not condoned.
13.
That
Your Petitioner states and submits that the Hon’ble Apex Court in Anshul
Aggarwal – Versus – New Okhla Industrial Development Authority, IV ( 2011 ) CPJ
63 ( SC ), has laid down as “ 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 filling appeals and revision in consumer matters and the object of
expeditious adjudication of the consumer disputes will get defeated if this
Court was to entertain highly belated petition filed against the orders of the
Consumer Foras”.
14.
That
Your Petritioner states and submits that in Balwant Singh – Versus Jagadish
Singh & Ors, V ( 2010 ) SLT 790, ( Civil Appeal No. 1166 of 2006 ), decided
by the Hon’ble Apex Court on 08-07-2010, and it was held as “ The Party should
show that besides action bona fide, it had taken all possible steps within its
power and control and had approached the Court without any unnecessary delay.
The test is whether or not a cause is sufficient to see whether it could have
been avoided by the Party by the exercise of due care and attention. [ Advanced
Law Lexicon, P. Ramanatha Aiyar, 3rd Edition, 2005 ]”.
15.
That
Your Petitioner states and submits that in Ram Lal and Ors. Versus Rewa
Coalfield Limited, AIR 1962 SC 361, it has been observed by the Hon’ble Apex
Court as “ It is however, necessary to emphasize that even after aufficient
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 discretionary
jurisdiction vested in the Court by Section 5. If sufficient cause is not
proved nothing further has to be done, the application for condonation has to
be dismissed on the 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 inquiry 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”.
16.
That the petition under objection is otherwise
bad in law as also in the facts and circumstances of the case and as such the
same is liable to be dismissed with exemplary cost.
Verification
I, Shri
Dhendup Rai, being
the Respondent, herein, do hereby declare that the forgoing paragraphs
no________to ________are true to the best of my knowledge and rest prayers
portions are my humble submission before the Hon’ble Forum and I duly sign and
verify this petition on _____________2015.
Shri
Dhendup Rai,
Identified
by me,
Advocate.
Prepared in my Chamber,
Advocate.
Dated : _______________2015.
Place : Alipore Judges’ Court.
Before
the Hon’ble State Consumer Disputes Redressal Commission, West Bengal, at
Premises being no. 11 A, Mirza Ghalib Street, Kolkata-700087.
Memo of Appeal no. FA / 712 / 2014.
In the matter of :
Dr. Pinaki Baidya (
Dr. P. Baidya ) and Others.,
__________Appellants.
- Versus _
Shri Dhendup Rai ,
__________Respondent.
AFFIDAVIT
Affidavit
of Shri Dhendup
Rai, Son of Late P. Rai, aged about ______years, by faith Hindu, by Occupation
______________, residing at Village – Thurboo Tea Estate, Post Office &
Police Station – Mirik, Sub Division – Kurseong, District – Darjeeling –
734214, West Bengal,
I, the above deponent do hereby
solemnly affirm and declare as under :-
1 : That I am being the Respondent,
in the above appeal, thoroughly conversant with the facts and circumstances of
the present appeal and am competent to swear this affidavit.
2 : That the facts contained in
my accompanying objection / application, the contents of which 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.
DEPONENT
Verification
I, the above named deponent do
hereby solemnly verify that the contents of my above affidavit are true and correct
to my knowledge, and no part of it is false and nothing material has been
concealed therein.
Verified this ………….the day of
…………….2015, at Alipore Judges’ Court.
DEPONENT
Identified
by me,
Advocate.
Prepared in my Chamber,
Advocate.
Dated :……………………2015.
Place : Alipore Judges’ Court.
N O T A R Y
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