HON'BLE MR. SUDEB MITRA, PRESIDING MEMBER

Order No. : 07

Date : 28.07.2023

The materials on record reveals that on 10.05.20222 before the Ld. DCDRC, Purba Bardhaman, as complainant/appellant of A/1/2023 as well as CC/108/2022, Akshaya Kumar Ghosh had filed an application U/Sec. 35 of C.P. act of 2019, praying for relevant relieves contained in CC 108/2022 against the OPs/respondents of CC 108/2022 (from which this Appeal arose) as categorically reflected above in the Cause Title of this A/1/2023 and besides the filing of CC 108/2022, the complainant/appellant Akshaya Kumar Ghosh had also filed on 10.05.2022, a separate petition U/Sec. 69 of C.P. act of 2019 vide MA Case No. 34/2022 against the said set of OPs/respondents of CC/108/2022, seeking condonation of unintentional delay in filing CC 108/2022 from his end.

The materials on record reveals that on hearing the contesting parties contentions and rival contentions  as reflected here, on 19.12.2022 Ld. concerned DCDRC, Purba Bardhaman rejected the MA 34/2022 on contest, holding that there was no reasonable explanation assigned/established on behalf of the complainant to substantiate/justify in respect of his prayer for condonation of the delay in his lodging the complaint as cogent and legally appreciated and thereby turned down the prayer for condonation of delay pressed by the complainant Akshaya Ghosh, in lodging complaint i.e. CC/108/2022 and the Ld. Concerned DCDRC also, in the light of its findings in MA 34/2022, passed by it on 19.12.2022, had also refused to admit CC 108/2022 and in that form disposed of CC 108/2022 too. Feeling aggrieved by and dissatisfied with the order dated 19.12.2022 passed in MA/34/2022 and CC/108/2022, the petitioner of MA 34/2022, complainant of CC/108/2022 Akshaya Kumar Ghosh has preferred the A/1/2023 praying for setting aside the impugned order passed on 19.12.2022 in Misc. Application No. 34 of 2022 and thereby for setting aside the impugned order passed on 19.12.2022 in CC 108/2022 and pressed for the admission of A/1/2023.

The case record reveals that the appellant/complainant has contended and assigned the following grounds for filing this Appeal in the form that the impugned order dated 19.12.2022 are bad in law, against the facts and circumstances and are devoid of legal propriety, for erring in law and for non-consideration of the associated facts involved in the factual matrix of the compliance case and on the further ground that on the basis and dependency on technicality, the impugned orders were passed in MA 34/2022 and CC/108/2022.

The complainant has agitated that the Ld. Commission has not taken into consideration the opinion of the Hon’ble Apex Court in V. Bakshi Gokhale VS G. Construction Ltd. reported in (2019) 6 SCC 489 in which Hon’ble Apex Court criticised N.C.D.R.C. for dismissing a case on delay.

This is agitated as a ground of filing this Appeal that the impugned order was based on improper and misconceived appreciation of legal stand regarding consideration of nominal delay in allowing the prayer for condonation of delay in filing complaint. It is contended that the Ld. Concerned DCDRC has failed to appreciate the intention of the legislature to pass the C.P. Act and the Ld. Commission has failed to hold the liberal views while pronouncing the impugned orders dated 19.12.2022 in CC/108/2022 and MA 34/2022 and had entertained untenable submissions in reaching the conclusion passed in the impugned orders dated 19.12.2022 without taking into consideration of the Sec. 100 of the C.P. Act of 2019 and the ambit and scopes of Sec. 69 of C.P. act 2019 and without appreciating the fact that the complainant – appellant has no requirement to explain the delay in filing the application from 20.03.20218 to March 2020 as that period from the point of death of his minor daughter was well within the period of limitation.

This is also pressed in this Appeal by the appellant/complainant that this complaint was containing cogent reasons assigned by the poor, not sufficiently educated complainant regarding the steps he had taken in avoiding/rationalising his delay, if any, in filing this complaint and this MA, filed to seek condonation of delay in filing the CC/108/2022 but the Ld. Commission below had not either entertained or appreciated the same to be rational and reasonable to condone the delay in filing the complainant and passed the impugned orders dated 19.12.2022 in CC/108/2022 and MA 34/2022.

By filing the Appeal the appellant/complainant has pressed for entertaining MA 34/2022 with positive consideration and to admit CC 108/2022 for enabling its hearing on merit on contest.

 The BNA filed from the appellant/complainant echoed on the same points. The Appellant  has contended that the sufficient cause in justifying the delay in filing petition for condonation of delay in filing particular petition should receive a liberal consideration in the light of the definition given in R.N. Sao and others referred in 2002 SCC 3, 195 pronounced by the Hon’ble Apex Court and by filing the Appeal the appellant/complainant prayed for reliefs as described above.

The OPs/respondents of CC/108/2022 and MA 34/2022 contended by filing BNA that the complainant had taken so many steps for redressal his alleged grievances and had never disclosed anything on that score and his delays were unjust and irrational and he cannot take the advantage of time excluded for limitation passed in Suo Moto writ petition of the Hon’ble Apex Court in Writ Petition (C) No. 3 of 2020 covering 15.03.2020 to 28.02.2022 and 90 days from 01.03.2022, since prior to 15.03.2020 appellant had ample time from the date of arisal of cause of action of the CC/108/2022 i.e. from 20.03.2018 date of death of the female child of the complainant/appellant till 15.03.2020 to file the complaint before the Ld. DCDRC.

It is agitated by the OPs/Respondents Nos. 1 and 3 further that there was lack of specific cause and explanation of per days delay in filing CC/108/2022 and MA 34/2022 as well. So the Appeal deserves to be dismissed.

By filing BNA, the remaining OP No. 2 contended that delay of each day has to be explained as per principle of law by showing sufficient cause. No such step to explain and justify the long delay in filing the CC/108/2022 on 10.05.2022 from the point of time of arisal of cause of action of the instant complaint case i.e. from 20.03.2018 has been taken by the complainant/appellant. So, there remains no cogent ground to entertain the instant Appeal.

This gist of argument reflects that the respondents/OP No. 2 tried to substantiate its contentions/arguments by citing 1962 AIR (SC) 361, 2010 AIR SC 3043, 2014 AIR SC 746 and the respondents contended that even after sufficient cause has been shown, a party is not entitled to condonation of delay in question as a matter of right. If no sufficient cause is shown/proved, nothing further has to be done.

By citing 2010 AIR SC 3043, the concerned respondent No. 2 contended that the test whether or not a cause is sufficient is to see whether it could have been avoided by the party by the exercise of due care and attention, and that test has not been passed by the appellant/complainant so in this case, he cannot take the advantage of condonation of delay, in filing CC 108/2022 specially when there was absence of sufficiency of satisfactory explanation coming from the factual matrix of the complaint of CC/108/2022.

The respondent/OP No. 2 has cited 2014 AIR SC 746 and contended that delay should not be condoned on the ground that the plaintiff will lose interest for the period of delay.

By agitating these all as reflected in gist, the respondents have all resisted the instant A/1/2023 of the complainant that is seeking for setting aside of the impugned orders/judgement of CC/108/2022 passed by Ld. DCDRC, Purba Bardhaman on 19.12.2022 and praying for allowing Misc. Application No. 34/2022 in positive note, for restoration of CC/108/2022 in its file and hearing of the same on merit.

POINT FOR CONSIDERATION

In this backdrop, the point for consideration is to assess and determination as to whether the impugned orders dated 19.12.2022, passed by the Ld. DCDRC in Misc. Application No. 34/2022 arising from CC/108/2022, is to be set aside or not and to determine further as to whether in consequence thereto necessary order may be passed to restore CC/108/2022 to its file and to rehear it on merit and contest.

Decision with reasons

This is forthcoming from the available materials on record of CC/108/2022 that on 10.05.2022, the appellant/complainant Akshaya Kumar Ghosh had filed a petition (MA 34/2022) supported by affidavit, seeking condonation of delay in filing the complaint case No. CC/108/2022 that too was filed on 10.05.2022 though the cause of action of the said complaint case arose on 20.03.2018, on the demise of his minor daughter, aged about 6 months in the Hospital of the respondent/OP No. 2 of CC/108/2022 i.e. respondent No. 2 of A/1/2023.

It appears from the said petition of the appellant/complainant that it was reflected in the said application (MA/34/2022) for condonation of delay in filing CC/108/2022 that due to the unfortunate demise of the complainant’s said minor female child, the complainant was devasted, perplexed and had moved from the door to door of different medical and administrative authorities, seeking redressal of his irreparable loss and justice, so there was delay in filing the complaint case No. CC/108/2022, before the concerned Ld. DCDRC, Purba Bardhaman.

It was pressed from the end of the appellant/complainant that the period in between March 2020 to February 2022 has been excepted by the Hon’ble Supreme Court due to Covid 19 pandemic situation vide Suo Moto Writ Petition (Civil) No. 3  of 2020 vide cognizance of extension of limitation and on the basis of that direction of the Hon’ble Apex Court, he had sought for condonation of delay in filing CC/108/2022 and prayed by filing MA/34/2022, for allowing his said prayer for condonation of delay in filing CC/108/2022.

It appears from the impugned order dated 19.12.2022, passed in said Misc. Application No. 34/2022, by the Ld. DCDRC, Purba Bardhaman that the Ld. Commission was pleased to refuse that prayer of the complainant of CC/108/2022 holding that as the cause of action of the CC/108/2022 arose on 20.03.2018  but the complainant was lodged on 10.05.2022, so there was long delay of more than four (4) years and the Ld. Commission had held further that the said delay for 2 years more was beyond the time limit as contemplated U/S. 69 (2) of the C.P. Act of 2019, for filing the complaint case. The Ld. Concerned Commission held further, as reflected in the impugned order dated 19.12.2022 passed in MA/34/2022  arising from CC/108/2022, that though the complainant was entitled to get relief of condonation of delay for the period as exempted by the Hon’ble Apex Court of India but as the complainant had failed to explain the reason of his delaying in filing the CC/108/2022  from 20.03.2018 to March 2020 and as the complainant had failed to explain the reason of his delaying in filing CC/108/2022 after February 2022 to 10.05.2022 i.e. the date of filing CC/108/2022, so the delay was unreasoned and inordinate and on that ground the Ld. Commission, Purba Bardhaman rejected the Misc. Application No. 34/2022 filed by the complainant seeking for condoning the delay in filing CC/108/2022 by pronouncing the impugned order dated 19.12.2022 and at the same time in view of that finding of MA/34/2022 dated 19.12.2022, refused to admit CC/108/2022 by pronouncing separate order in CC/108/2022 on the same date i.e. 19.12.2022.

Now these impugned orders of 19.12.2022 passed in 34 of 2022 and CC/108/2022 passed by Ld. Concerned DCDRC are challenged in A/1/2023 by the complainant/appellant of CC/108/2022 and MA/34/2022, Akshaya Kumar Ghosh in A/1/2023 seeking for setting aside the impugned order dated 19.12.2022 in MA/34/2022 and seeking admission of CC/108/2022 in its original file.

It appears from the available materials on record that the cause of action in CC/108/2022 arose on 20.03.2018 on the demise of the minor female child of the complainant and he had filed the CC/108/2022 seeking redressal of his great loss and for other consequential reliefs  on 10.05.2022 together with a petition praying for condonation of delay in filing CC/108/2022 within 2 years from 20.03.2018 i.e. within 20.03.2020 as per scope of Sec. 69 (1) of the C.P. Act of 2019.

It is pertinent to note that vide suo moto writ petition (C) No. 3 of 2020, the Hon’ble Supreme Court was pleased to hold and direct that the period from 15.03.2020 till 28.02.2022 shall stand excluded for the purpose of limitation as may be prescribed under any general or special law in respect of all judicial and quasi-judicial proceedings. The Hon’ble Apex Court was further pleased to hold and direct that in case where the limitation would have expired during the period between 15.03.2020 till 28.02.2022, notwithstanding the actual balance period of limitation remaining, all persons shall have limitation period of 90 (ninety) days from 01.03.2022. In the event, the actual balance period of limitation remaining, with effect from 01.03.2022 is greater than 90 days, the longer period shall apply.

Here in this, case the cause of action arose on 20.03.2018. The CC/108/2022 should have normally been filed, as per scopes of Sec. 69 (1) of the C.P. Act by 20.03.2020 where as in this case the CC/108/2022 was filed on 10.05.2022 but in the meantime, as per scopes of the direction of the Hon’ble Apex Court vide Suo Motu Writ Petition (C) No. 03 of 2020, the period from 15.03.2020 to 28.02.2022 has been directed by the Hon’ble Apex Court to be excluded for the purpose of limitation, as may be prescribed under any general or Special Law in respect of all judicial and quasi-judicial proceedings and the Hon’ble Apex Court was further pleased to observe and direct by this Suo Motu Writ Petition (C) No. 03 of 2020 pronounced on 10.01.2022 that where the limitation would have expired during the period from 15.03.2020 to 28.02.2022 notwithstanding the actual balance period of limitation remaining, all persons shall have limitation period of 90 days from 01.03.2022 and in the event actual balance period of limitation remaining with effect from 01.03.2022 is greater than 90 days, the longer period shall apply.

In the premises, in the coming to existence of this direction of the Hon’ble Apex Court passed on 10.01.2022 the complainant of CC/108/2022 gets the extension of limitation period from 15.03.2020 till 28.02.2022 and this total period is to be excluded from the period of limitation for filing CC/108/2022. Besides, since after 28.02.2022, 90 days period further is determined by the Hon’ble Apex Court for exclusion for limitation purpose, so calculation from 01.03.2022, within 90 days from 01.03.2022, the complainant filed CC/108/2022 on 10.05.2022. So, there remained no delay, on the basis of the direction of the Hon’ble Apex Court in Suo Motu Writ Petition (C) No. 03 of 2020, in filing CC/108/2022 by the complainant of CC/108/2022 and there remained no appreciable and cogent reason to refuse MA 34/2022, filed by the complainant of CC/108/2022 on 10.05.2022, seeking condonation of unintentional delay in filing CC 108/2022.

There remains no cogency in holding by the concerned Ld. Commission (DCDRC) as reflected in the impugned order dated 19.12.2022 that there was no explanation in respect of delay from 20.03.2018 to March 2020 in lodging CC/108/2022 because it is rightly pointed out by the complainant/appellant Akshaya Kumar Ghosh that no explanation is required for that period since that period is allowed for preparing the complaint to be lodged and limitation period does not take intrusion in that span of time of two years i.e. the period of 2 years from the arisal of cause of action and filing of the complaint, in consequence of the arisal of that cause of action.

The Ld. Concerned DCDRC had not been found to have appreciated that vie the Writ Petition (C) No. 03 of 2020 the Hon’ble Apex Court had given 90 days period of time more from 01.03.2022 to stand excluded for the purpose of limitation, as may be prescribed in this type of cases too. So, before the expiry of 90 days from 01.03.2022, the complainant has filed the CC/108/2022 on 10.05.2022, as the case record reveals.

In the coming into existence of Suo Motu Writ Petition (C) No. 3 of 2020, we find it was redundant in this case to impose burden upon the complainant of CC/108/2022 to explain his each days delay in filing the CC/108/2022 in the DCDRC of Purba Bardhaman, beyond the stipulated time frame scheduled for filing the CC/108/2022 as per Sec. 69 of C.P. Act of 2019, since at the time of filing of CC/108/2022, in the coming into existence of the Suo Motu Writ Petition (C) No. 03 of 2020, the complainant of CC/108/2022 had not been assessed to have made any delay in filing CC/108/2022 before the appropriate forum.

In the premises, with our deepest regards to the recriminations of the contesting parties of this Appeal and to the cited references of the contending parties and counter reference regarding explaining and assigning of reasons and counter reasons for delaying in filing complaint case beyond stipulated time frame scheduled for filing the same, as contemplated U/Sec. 69 of the C.P. Act 2019. We find that in view of the cited reference of the Hon’ble Apex Court, as just reflected in the contents of the judgement, since there was no delay in filing CC/108/2022, and since there was merit in MA/34/2022 dated 10.05.2022, the impugned order dated 19.12.2022 passed in MA/34/2022, by the Ld. DCDRC, Purba Bardhaman deserves to be set aside, as prayed for by the appellant/complainant and in consequence, the impugned order dated 19.12.2022 passed in CC/108/2022 by the Ld. DCDRC, Purba Bardhaman, refusing to admit CC/108/2022 also deserves to be set aside.

Hence, it is

ORDERED

That the instant Appeal A/1/2023 be and the same is allowed on contest but without cost in favour of the complainant/appellant Akshaya Kumar Ghosh. The impugned order dated 19.12.2022 passed in MA/34/2022 by the Ld. DCDRC, Purba Bardhaman stands set aside on contest. Consequently, the impugned order dated 19.12.2022 passed in CC/108/2022 from which MA/34/2022 arose, passed by the Ld. DCDRC, Purba Bardhaman also stands set aside on contest.

Let the digitalised copy of CC/108/2022 together with petition of MA/34/2022 dated 10.05.2022 be sent down to the concerned DCDRC, Purba Bardhaman for perusal and to proceed with CC/108/2022 according to law after reappreciating the admissibility of CC/108/2022 in the light of the observation passed in this judgement.

Let a free copy of the judgement of A/1/2023 be supplied free of cost to the all contesting parties of CC/108/2022.