IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.R.RAMACHANDRA MENON THURSDAY, THE 9TH JUNE 2011 / 19TH JYAISHTA 1933 WP(C).No. 4493 of 2011(J) ------------------------- PETITIONER: --------------- INDUSIND BANK LTD., IIND FLOOR, SHALLOM TOWERS, EDAPPALLY, KOCHI-24, REPRESENTED BY AUTHORIZED OFFICER, SHRI. PARTHEESH S., EXECUTIVE (LEGAL). BY ADV. SRI.K.RAJESH (AROOR) SRI.PRASANTH M.P RESPONDENT: --------------- P.M.MEERAN, S/O. MAITHEEN, PONDANATHU HOUSE, PEZHAKKAPILLY, EAST PAIPRA KARA, MULAVOOR POST & VILLAGE, MUVATTUPUZHA TALUK, ERNAKULAM. ADV. SRI.R.BINDU (SASTHAMANGALAM) THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 09/06/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C).No. 4493 of 2011(J) APPENDIX PETITIONER'S EXHIBITS: EXT.P1 : TRUE COPY OF THE ORDER DATED 30.11.2010 OF THE CONSUMER DISPUTES REDRESSAL COMMISSION. EXT.P2 : TRUE COPY OF THE ORDER DATED 20.06.2009 OF THE CONSUMER DISPUTES REDRESSAL FORUM EXT.P3 : TRUE COPY OF THE PETITION TO CONDONE THE DELAY FILED BEFORE THE HON'BLE STATE CONSUMDER DISPUTES REDRESSAL COMMISSION. EXT.P4 : TRUE COPY OF THE APPEAL FILED BEFOR THE HON'BLE ST ATE CONSUMDER DISPUTES REDRESSAL COMMISSION. EXT.P5 : THE STATEMENT OF ACCOUNT IN THE NAME OF THE RESPONDENT. EXT.P6 : TRUE COPY OF THE AFFIDAVIT OF THE COUNSEL FOR CONSUMDER DISPUTES REDRESSAL COMMISSION, THIRUVANANTHAPURAM. /TRUE COPY/ P.S. TO JUDGE. P.R. RAMACHANDRA MENON, J. .............................................................................. W.P.(C) No. 4493 OF 2011 ......................................................................... Dated this the 9th June , 2011 J U D G M E N T This Writ petition is filed by the petitioner Bank challenging the course pursued by the CDRC, Thiruvananthapuram whereby Ext. P3 application filed by the petitioner to condone the delay in filing the appeal was dismissed and as a natural consequence the appeal as well, 2. The case of the petitioner, who was the respondent before the concerned District Forum, is that the course and events were not communicated to the party by the counsel and so also, the verdict passed by the Forum was also not let known; as a result of which no appeal could be filed on time. It was in the said circumstance, that the petitioner sought to file the appeal with Ext. P3 petition to condone the delay, pointing out the lapse on the part of the counsel, which however was not properly dealt with by the Commission while dismissing the same W.P.(C) No. 4493 OF 2011 2 and hence under challenge. 3. The learned Counsel appearing for the respondent seeks to sustain the orders passed by the Commission, stating that the delay is inordinate and that the same has not been properly explained in the affidavit filed in support of the I.A., but for merely blaming the counsel. 4. On going through the materials on record, it is seen that an affidavit has been filed by the concerned Counsel, who was appearing before the District Forum on behalf of the Bank, (as Ext.P6, which has been supplemented by a 'proper affidavit' produced along with I.A.No.8396 of 2011). It has been conceded by the counsel in the said affidavit that the order passed by the District Forum, was never communicated to the party concerned and the mistake was on the part of the advocate's clerk, who happened to misplace the same in some disposed file. It is evident that this factual position was clearly pleaded in paragraph 3 of Ext.P3 I.A. to condone the delay in filing the appeal, also producing an affidavit of the concerned counsel in this regard. Paragraph No.3 as aforesaid reads as follows: W.P.(C) No. 4493 OF 2011 3 “That the appellant could not adduce evidence and could not present any documents for evidence. Due to the omissions and latches from the part of the office of the counsel for the OP.bank the OP. bank was oblivious about the proceedings in the Hon'ble Forum. The order of the Hon'ble Forum dated 20.06.2009 was also not communicated to the O.P. bank by the counsel due to inadvertent misplacing of the file. The affidavit of the Counsel for the O.P. bank to this effect is produced herewith. Hence there is a delay of 411 days in filing the appeal. The delay in filing the appeal is neither intentional nor deliberate; however, the same can be attributed to the reason mentioned hereinabove. “ It was after considering the said application, that the Commission dismissed the same as not satisfactory by passing Ext.P1, leading to dismissal of the appeal itself. 5. During the course of the proceedings before the Forum, P.Ws. 1 and 2 were examined, also marking the documents as Exts. A1 to A13 on behalf of the complainant, finally leading to Ext P2 order dated 20.06.2009 which was impugned in the appeal. Even though the petitioner Bank has got a case that the petitioner could not adduce evidence because of the lapse on the W.P.(C) No. 4493 OF 2011 4 part of the counsel, the said allegation is not conceded anywhere in Ext.P6 affidavit of the Counsel, who has acknowledged the responsibility in not forwarding copy of the order passed by the CDRF and that is all. Since there is nothing in the said affidavit as to the alleged lapse on the part of the counsel with regard to the course and events of the proceedings, the Commission is justified in observing that the petitioner Bank cannot be heard to be absolved of the duty to pursue the proceedings blaming the Counsel for everything. As such, this Court does not propose to examine the correctness of the allegation as to the loss of opportunity to adduce evidence. 6. However, when the Counsel who was appearing for the party has filed an affidavit conceding that there was a lapse on his part in not forwarding a certified copy of the order passed by the CDRF, this admitted fact does not require to be further proved. This being the position, the admitted lapse of the Counsel ought not to have barred the way of the petitioner or in other words, the delay is not attributable solely to the petitioner. This aspect is not seen considered by the Commission while W.P.(C) No. 4493 OF 2011 5 passing Ext. P1 order; more so in view of the law declared by the Apex Court, the party to the litigation shall not stand prejudiced because of the lapse, if any, on the part of the Counsel and also in the light of the observations made by the Supreme Court in N. Balakrishnan vs. M. Krishnamurthy [(1998)7 SCC 123] as to the course to be pursued in appreciating the delay. 7. In the above facts and circumstances, this Court finds that the delay is liable to be condoned and the same is accordingly condoned, setting aside Ext.P1 and restoring the Appeal back to file; however on condition that the petitioner pays a cost of Rs.5000/- to the respondent in respect of the admitted lapse ; irrespective of the fact whether it is on the part of the petitioner or on the part of the counsel for the petitioner. It is made clear that this Court has not expressed anything with regard to the sustainability of the contentions of the petitioner as to the lapse on the part of the petitioner in adducing evidence, which, however is left open to be considered by the Commission while considering the merits. The merit of the case needs to be W.P.(C) No. 4493 OF 2011 6 considered only on satisfaction of the cost as aforesaid and production of proof before the Commission. The writ petition is disposed of. P.R. RAMACHANDRA MENON, JUDGE. lk