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Tirupati Engineers vs M.D. Technomec Pvt. Ltd. And Ors. on 15 May, 2006

National Consumer Disputes Redressal
Tirupati Engineers vs M.D. Technomec Pvt. Ltd. And Ors. on 15 May, 2006
Bench: K G Member, P Shenoy


ORDER

K.S. Gupta, J. (Presiding Member)

1. In this appeal filed against the order dated 7.2.2005 of Consumer Disputes Redressal Commission West Bengal, Calcutta the appellant/opposite party has filed application seeking condonation of 213 days delay in filing appeal.

2. Respondent/complainant placed order for purchase of milling machine, etc. with the appellant on 25.3.1997. Price of machines was settled at Rs. 6,18,268. Appellant delivered the machines on 26.6.97, 11.7.1997 and 3.9.1997 but on trial run the machines were found to be having a number of faults and manufacturing defects. Respondent, therefore, asked the appellant to set the defects/faults in the machines right but the appellant did not do so. The respondent, therefore, filed complaint seeking certain reliefs which was contested by the appellant. State Commission disposed of the complaint with certain directions by the said order dated 7.2.2005.

3. In aforesaid condonation application, the appellant has alleged that R.P. No. 1893/2004 filed by the appellant against State Commission’s order dated 29.6.2004 was dismissed by this Commission by the order dated 22.9.2004 and thereafter, the appellant did not receive any notice regarding fixing of date of hearing in the complaint from the State Commission. It further alleged that on 11.8.2005 along with covering letter the appellant received the copy of State Commission’s order dated 7.2.2005. Appellant applied for certified copy of the order on 12.8.2005 and copy was made available on 19.8.2005. After receiving the certified copy of order the proprietor of the appellant suffered a heart attack and was advised bed rest for three months. From 19.11.2005 to 28.2.2006 he was ill due to various ailments. From 1.3.2006 to 9.4.2006 he had another mild heart attack and was advised bed rest for one month. Delay in filing appeal was, thus, unintentional. Respondent has filed reply to the condonation application. Copy of plaint in Suit No. 289/2005 filed by the appellant against the respondent before Civil Judge (Junior Division), Alipore, 24 Parganas (South) and extract of information supplied by the said Court have been annexed with the reply. Said extract would show that the said suit was filed by the appellant on 5.10.2005. Copy of plaint would show that the prayer made therein was for declaring aforesaid order dated 7.2.2005 passed by the State Commission to be null and void and/or unenforceable in law. Copy of order dated 22.9.2004 passed by this Commission in. R.P. No. 1893/2004 has also been filed along with the said reply. This revision was filed against an interim order of State Commission dated 29.6.2004. As per order dated 29.6.2004 the report as to the performance after removal of defects in machines was to be submitted by 28.9.2004. Aforesaid order dated 22.9.2004 would show that revision against the said order was dismissed with the observation that the points touching the merits of case can be raised before the State Commission including that of expenditure which may be incurred in removing the defects in machines.

4. Contention advanced by Mr. H.K. Puri for appellant in support of condonation application is that the appellant was unaware of the order dated 7.2.2005 before copy thereof was received along with covering letter dated 11.8.2005 from the respondent. Appellant was prevented from filing appeal because of illness of its proprietor and also did not have Rs. 35,000 for being deposited with the Commission as a condition for entertaining appeal. To be noted that under the Rules framed by States under Consumer Protection Act, 1986 a copy of the order is sent to the parties free of charge by the Registry. In condonation application it has not been denied that copy of order dated 7.2.2005 was not received by the appellant from the Registry of State Commission. Appeal has been filed on 18.4.2006. As noticed above Suit No. 289/2005 for declaration, etc. was filed before the Civil Judge on 5.10.2005. If appellant could have filed that suit it may have also preferred appeal before 18.4.2006. It cannot be believed that appellant did not have amount of Rs. 35,000 for being deposited as a condition for entertaining the appeal with this Commission. Moreover, such a ground has not been taken in the condonation application. Plea of ill-health of the proprietor of appellant continuously upto the date of filing of appeal is not convincing. At the cost of repetition, it may be stated that as per order dated 29.6.2004 the performance report was to be submitted by 28.9.2004. Since this date was fixed in the complaint no separate notice needed be sent to the appellant who, admittedly, did not participate in the proceedings in complaint after dismissal of said R.P. No. 1893/2004. It is not in dispute that the order dated 29.6.2004 was not complied with by the appellant. In our view, appellant seems to be interested in delaying the proceedings and present application for foregoing discussion does not disclose sufficient cause to condone the delay in question.

5. Condonation application is, therefore, dismissed. Appeal too is dismissed as barred by limitation with cost of Rs. 5,000 to the respondents.

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