Case: Maqbool Ahmad Ansari &amp; Another Vs. Branch Manager, Bank of Baroda Niryat Bhavan, Uttar Pradesh &amp; Another

2. The brief facts of the case as per the appellant/complainant are that the appellants firm is a proprietorship concern engaged in manufacturing and export of hand knitted woollen carpets. In December 2007 in response to a purchase order of overseas buyer, the appellant manufactured carpets and made arrangements for its shipment through commercial documents with invoice for US $ 1,10,596.55 or INR Rs.43,51,974.24 bill of lading and bill of exchange. All the said documents were sent through the banker of the firm, i.e., Bank of Baroda, Niryat Bhavan, Bhadohi where the appellants firm was having a current account and EEFC Account. It was alleged that the respondents bank sent the said documents to the consignee bank the Meridian Bank with the following instructions:    * Deliver the documents against payment and advice the details of payment over swift/ FAX;    * Recovery or charges from the drawee;    * Collection of subject to ICC publication no. 522;    * Do not deduct any amount from the proceeds;    * Advicet over Fax/ Telex/ swift; and    * Outside India charges to be borne by the drawee;    3. In the year 2008, on an enquiry it was found that the amount of proceeds had not been credited to the appellants account but the consignment had been released against the original bill of lading. For the said act, the respondent Bank had served legal notice on the Meridian Bank and Meridian Bank has instituted a Declaratory Judgment Act against the respondent as also the petitioners before the District Court at Arizona asking for repudiation of their claim against the importer and its Banker. It was further alleged that the settlement agreement was arrived at between Bank of Baroda and Meridian Bank effective from 30.04.2010 for US $36,000 or INR Rs.16.20 lakh against the claim of US $ 1,10,596.55 or INR Rs.43,43,650.14. Hence, it was alleged that the respondent had committed deficiency of service by arriving at a settlement despite the instruction of the appellant not to settle the matter for less than US $ 75,298., due to which the appellants firm had sustained a loss to the tune of Rs.27,23,650.14. Hence, the appellant filed the consumer complaint no. 53 of 2011 before the State Commission seeking award of Rs.68,44,929/(including compensation for mental agony and litigation cost) with interest @ 12% per annum from the date of filing of complaint till final decision.    4. The State Commission on 31.03.2016 passed the following order:The case is taken up. Nobody is present for the complainant nor has any application for adjournment been moved on their behalf. The counsel for the complainant is also absent today. Nobody is present from defendants side as well. We have perused carefully all the documents available on record.    From the perusal of the paper book it transpires that the complaint is lying pending since the year 2011. Nobody has been appearing for the complainants from last several dates. On 17.01.2014, while granting a last opportunity for evidence the case was fixed for 11.03.2014, 44 complainants evidence. Various states of fixed for complainants evidence after 11.03.2014 and on 01.02.2016 and 22.03.2016 and order was passed to the effect that the complaint may be dismissed in case nobody appears for the complainant. Nevertheless nobody has appeared for the complainant today nor has any evidence in support of the complaint been filed it appears that the complainant is no more interest in the conduct of the case.    Under these circumstances the complaint is liable to be dismissed in default of the complainants and for lack of evidence.    The complaint is dismissed in default of the complainants and for lack of evidence5. Hence, the present First Appeal.    6.g through the order sheets of the State Commission it is an admitted fact that after 17.11.2014 no one has appeared on behalf of the appellant leading to the dismissal of the appeal. In the present appeal, the reasons given for thee are as under:    * Although the case was proceeding for quite some time and response was awaited from the respondents/ opposite parties but apparently, the counsel representing the appellants before the Commission below failed to take notice of listing of the case and could not pursue the same effectively;    * It may also be submitted that the applicants could not be informed by their counsel as to the status of the case or that they are required to file evidence therein;    * Unfortunately the case of the appellants remained unattended on several hearings and the same was ultimately dismissed for want of prosecution on their part on 31.03.206;    * The appellants came to know of the fact dismissal of the case only in the month of July 2016 when the copy of order dated 31.03.2016 was served upon them.

Reasoning:
9. The appellants have failed to explain the day to day delay of 140 days. It appears that even after the complaint was dismissed forn and the manner in which the complainant had pursued the case in the State Commission, they continued to be casual and vigilant and failed to actively pursue the matter and ensure that the First Appeal was filed on time. The appellant has again failed to mention the action initiated against the counsel for his failure to file the appeal on time with limitation10. At the same time, it is also well settled that sufficient cause with regard to condonation of delay in each case, is a question of fact16. We are of the view that the appellant has failed to give sufficient cause by giving cogent reasons and justification to condone the inordinate delay of 140 days. The appellant has also failed to explain their absence before the State Commission on a number of dates in spite of warning by the State Commission17. Accordingly, we find that there is no sufficient cause to condone the inordinate delay of 140 days in filing the present appeal. The application for condonation of delay is without any merit as well as having no legal basis and is not maintainable.