TIRUPATI ENGINEERS Vs. M D TECHNOMEC PVT LTD

JUDGEMENT

(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.