DAYAWANTI DEVI & 2 ORS. V. MANOJ KUMAR AGARWAL

W/O. LATE AMARNATH AGARWAL, NEW WARD NO 6,
CHAKKARDHARPUR
SINGHBHUM EAST
JHARKHAND
2. PINKY AGARWAL
W/O. SRI NARAYAN AGARWAL, NEW WARD NO 6, NEAR
CHAKKARDHARPUR
SINGHBHUM EAST
JHARKAHAND
3. M/S. PRATHAM CONSTRCTION
THROUGH ITS PARTNER SHRI NARAYAN AGARWAL,
NEW WARD NO 6, NEAR CHECK NAKA, AADARSH
SINGHBHUM EAST
JHARKAHAND

Versus

1. MANOJ KUMAR AGARWAL
S/O. SRI KEDARMAL AGARWAL, R/O. CHANDMARI
CHAKKARDHARPUR
SINGHBHUM EAST
JHARKHAND

Case No: FIRST APPEAL NO. 1657 OF 2018

Date of Judgement: 16 Jan 2023

Judges:

For the Appellant : Mr.Shree Prakash Sinha, Advocate Ms.L.Philip, Advocate

For the Respondent : Mr.Jitendra Kumar Sahoo, Advocate

Facts
First Appeal filed by Dayawanti Devi, Pinky Agarwal and M/s Pratham Construction against the order dated 21.07.2017 of the State Consumer Disputes Redressal Commission, Jharkhand. Appeal filed after a delay of 156 days. Application seeking condonation of delay also filed. Order was passed by State Commission on 21.07.2017. Certified copy applied on 16.02.2018 and received on 12.03.2018. Delay reasoned due to illness of Dayawanti Devi who was suffering from cancer and had gone to Chennai for treatment in 2018. Partners could not come to Delhi to file appeal earlier due to her ill health. Respondent contends the appellants attended Registrar of Companies office during the period regarding their problems, so the plea is false. Medical documents do not show admissions or cancer surgery.

Arguments by Parties

Appellants:
Delay due to illness and cancer treatment of Dayawanti Devi, certified copy delay. Circumstances were beyond control.

Respondent:
Plea is false as appellants attended Registrar of Companies. Medical documents do not prove cancer admission or surgery.

So in summary, the first appeal filed against the state commission order was delayed significantly. The application seeking condonation of delay on grounds of illness did not provide sufficient proofs as per the court. Hence the delay was not condoned and consequently the appeal was also dismissed.

Download Court Copy: https://dreamlaw.in/wp-content/uploads/2024/02/102.pdf

Full Text of Judgment:

The present Appeal has been filed by Dayawanti Devi, Pinky Agarwal and M/s Pratham Construction against the order dated 21.07.2017 of the State Commission Jharkhand. The Appeal has been filed by the Appellant after a delay of 156 days and, therefore, an application IA No. 17331 of 2018 has been filed seeking condonation of delay. Arguments have been heard on the application IA No. 17331 of 2018 ( condonation of delay)
1. It is contended that al-though order has been passed on 21.07.2017 but one of the Appellant Dayawanti Devi had fallen sick and was suffering with cancer and she was taken to Chennai for her cancer treatment in 2018 and, therefore, appeal could not be filed. It is also submitted that certified copy of the order was applied on 16.02.2018 which was delivered on 12.03.2018. Thereafter, appellant could not come to Delhi because of ill health of Dayawanti Devi / Appellant No.1. Later on Partner of Appellant No.3 came to Delhi to inquire about the filing of First Appeal which was prepared but could not be filed in the absence of Dayawanti Devi. It is submitted that the delay caused is unintentional and not deliberate and was due to circumstances beyond the control of the Appellant. Counsel for the Appellant has relied on certain documents dated 24.01.2018 in support of his contention.
2. Counsel for the respondent submits that during the intervening period after the impugned order was passed, Dayawanti Devi and other Appellants have attended the office of Registrar of Companies for redressal of their problems and it is submitted that plea taken is false and also that the medical documents filed on record does not show that Dayawanti Devi had ever been admitted or underwent any operation for the cancer.
3. It is settled proposition of law that condonation of delay is not a matter of right. The person who is seeking condonation of delay has to show the reasonable cause which prevented him / her from filing the appeal / revision within the period of limitation. The Hon’ble Supreme Court in the case of Ram Lal and Ors. Vs. Rewa Coalfields Limited AIR 1962 Supreme Court 361 has held as under:

4. In case of “R. B. Ramlingam vs. R. B. Bhavaneshwari, I (2009) CLT 188 (SC), the Hon’ble Supreme Court has held as under:

5. In the case of “Anshul Aggarwal vs. New Okhla Industrial Development Authority, (2011) 14 SCC 578,” the Hon’ble Supreme Court has held that special nature of period of limitation prescribed under the Consumer Protection Act has to be kept in mind while dealing with such applications. The Hon’ble Supreme Court has held as under:

6. The burden is on the applicant to show on record the reasons which were beyond its control and prevented them for filing Appeal even after acting with due diligence and care.
7. From the perusal of the application, it is apparent that present Appeal has been filed by Dayawanti Devi and Pinky Agarwal who are the partners in the firm of respondent No.3 Narayan Agarwal. The plea of delay has been taken on the illness of Dayawanti Devi, one of the partner of Appellant No.3 i.e. a Partnership Firm. The documents placed on record does not in any way show that she was ever admitted in any hospital for the treatment of the cancer. The medical documents on file does not bear her name and in the ultrasound report her name bears which shows that she had undergone through ultrasound for Gall Bladder treatment. No report showing that she was suffering with cancer has been filed on record. Even otherwise, period of limitation for filing the present Appeal starts running on the date of passing of the impugned order which is 21.07.2017. The period of limitation is 30 days which had expired on 20.08.2017 and no medical document of Dayawanti Devi has been placed on record to show that that she was unwell during this period, although in the application it is submitted that Dayawanti Devi was not told about the passing of the order by her counsel. However, it is not shown as to what date the Appellant had come to know about the passing of the order. The Application is totally silent about it. The applicant has alleged that that they had applied for certified copy on 16.02.2018 which shows that they were aware of the passing of the impugned order before that date but the date has not been disclosed. Even otherwise, they had admittedly received the certified copy on 12.03.2018 but the Appeal had been filed somewhere in September 2018, which shows that it was further delayed. There is nothing on record which could show that there were circumstances which prevented the Appellant to file the present Appeal within time and it were beyond the control of the Appellant. The Application has no merit and same is dismissed.

First Appeal
Since Appeal is delayed, the same is also dismissed.