IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.GIRI FRIDAY, THE 19TH JUNE 2009 / 29TH JYAISHTA 1931 WP(C).No. 16182 of 2009(P) -------------------------- PETITIONER(S): --------------- P.C. VIJAY, S/O. CHANDRAN, AGED 33 YEARS, MANAGER & PROPRIETOR, BOMBAY MARBLES & CEMENT BRICK COMPANY, PARUVATTANI, THRISSUR. BY ADV. SRI.R.S.KALKURA SRI.M.S.KALESH SRI.HARISH GOPINATH SRI.V.VINAY MENON SMT.KV.P.JAYALEKSHMY SRI.M.AJAY (IRUMPANAM) RESPONDENT(S): --------------- 1. STATE OF KERALA, REPRESENTED BY THE SECRETARY, CIVIL SUPPLIES AND CONSUMER AFFAIRS, GOVERNMENT OF KERALA, TRIVANDRUM. 2. KERALA STATE CONSUMER DISPUTES REDRESSAL COMMISSIONER, REPRESENTED BY SECRETARY, KERALA STATE CONSUMER DISPUTES REDRESSAL COMMISSION, VAZHUTHACAUD, TRIVANDRUM. 3. K. GOPINATHAN NAIR, AISWARYA, PALAPURAM, OTTAPALAM. R1 & R2 BY GOVERNMENT PLEADER SRI.P.N.SANTHOSH R3 BY ADV. SRI.RANJITH XAVIER THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 19/06/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: V.GIRI, J. ---------------------------------------- W.P.(C).No.16182 of 2009 ---------------------------------------- Dated this the 19th day of June, 2009. JUDGMENT The petitioner suffered Ext.P1 order from the Consumer Disputes Redressal Forum, on a complaint filed by the 3rd respondent herein. As per Ext.P1, the petitioner was directed to pay Rs.20,837/- with interest at the rate of 6% from 28.7.2003 and Rs.30,000/- as damages. It seems that the petitioner applied for a certified copy which was allowed on 17.5.2008, but the petitioner received a copy only on 23.10.2008 and filed Ext.P3 appeal only on 17.11.2008, apparently, on the premise that the appeal is being filed within 30 days from the date of receipt of a copy of the order impugned. The State Consumer Disputes Commission rejected the appeal as per Ext.P4 on the ground that the appeal has been filed beyond the period of limitation and without getting the delay W.P.(C).No.16182 of 2009 :: 2 :: condoned. This order has been challenged in this writ petition. 2. I heard learned counsel for the petitioner and learned counsel for the 3rd respondent. 3. Learned counsel for the 3rd respondent points out that Ext.P1 order was passed on 8.4.2008 and the copy was ready on 17.5.2008. The petitioner cannot take advantage of the default on his part in receiving the copy belatedly and then file the appeal, as if it is within time, computing the period of limitation from the date of such belated receipt of a copy of the order. 4. Learned counsel for the petitioner submits that the petitioner had no knowledge that the fact that a copy was ready. No intimation was received by him. He actually received the copy only on 23.10.2008 and the appeal was preferred by the counsel computing the period of limitation, with reference to W.P.(C).No.16182 of 2009 :: 3 :: the date of receipt. Since the appeal was numbered, the counsel was not aware of the possibility of the appeal being treated as belated and presented beyond the period of limitation. Had that been brought to the notice of the counsel for the appellant, the appellant would have filed an application for condonation of delay, explaining the facts and circumstances. I find force in this submission. 5. On an overall appreciation of the facts and circumstances, I am of the view that an opportunity be given to the petitioner to explain the aforementioned facts to the Hon'ble Commission. 6. Learned counsel for the 3rd respondent submits that the petitioner has an efficacious remedy against Ext.P4 before the National Commission. True, there is a remedy under Section 21 of the Consumer Protection Act. Here, the appeal has not been disposed of on merits. Nor has it been rejected as W.P.(C).No.16182 of 2009 :: 4 :: belated, after the commission has expressed its disinclination to condone the delay in preferring the appeal. This is a case where the petitioner did not get an opportunity to seek condonation of the delay in filing the appeal. Obviously, the question as to whether the delay in preferring the appeal is to be condoned or not, should first engage the attention of the Hon'ble Commission. But, I am of the view that the petitioner shall be put on terms, in this regard. 7. Accordingly, Ext.P4 will stand set aside on condition that the petitioner pays Rs.5,000/- to the 3rd respondent within 30 days from today. If the cost is not paid, Ext.P4 shall stand affirmed. If the cost is paid, then Ext.P3 appeal shall stand restored to file before the 1st respondent. The petitioner shall file an application explaining the reasons for presenting Ext.P3 appeal on 23.10.2008 and seek condonation of delay in preferring the appeal. The W.P.(C).No.16182 of 2009 :: 5 :: commission shall proceed to consider the application for condonation of delay in the first instance. If the delay is condoned, the appeal shall be disposed of on merits. Writ petition is disposed of as above. Sd/- (V.GIRI) JUDGE sk/ //true copy// P.S. to Judge