IMPORTANT POINTS
(1) Delay - The delay of each and every day has to be explained.
(2) Due Diligence - The basic test to determine whether the delay is reasonable or whether the party has been acting with due diligence.

ORDER

This revision petition under section 21(1) (b) of the Consumer Protection Act, 1986 (in short, the ‘Act’) assails the interim order dated 12.07.2019 in First Appeal No. A/655/2018 of the State Consumer Disputes Redressal Commission, Bengal, Kolkata (in short, the ‘State Commission’) arising out of order dated 27.10.2016 in Consumer Complaint No. 399 of 2012 of the District Consumer Disputes Redressal Commission, Kolkata -1 (North), (in short, the ‘District Forum’).

2. The facts, in brief, according to the revision petitioner, are that the complainant along with other co-owners of premises in No. 26/1B, Sabji Bagan Lane, P.S. Chetla, Kolkota 700027 entered into a Development Agreement dated 14.06.2006 with respondent no. 1 represented by its partners, respondents 2 and 3. Vide this Agreement, petitioner and his brother, Subir Kumar Chatterjee, were jointly entitled to 300 sq ft super built up area on the first floor of the premises. The respondents failed to hand over the said premises, despite receipt of a letter dated 22.06.2011 issued by the petitioner. Possession was, however, handed over to other purchasers in the building. The petitioners were compelled to file a complaint before the District Forum. Despite notices, the respondent failed to file his written version despite entering appearance through an advocate. Petitioner was allowed to amend his complaint on 12.06.2014. Respondent failed to file additional written version even after notice dated 31.07.2014. Vide order dated 27.10.2016 the District Forum allowed the complaint, on contest, with costs and the respondents were directed to provide a flat measuring 300 sq ft on the first floor of the said building within 30 days. They were also directed, jointly and severally, to pay Rs 70,000/- as compensation along with litigation cost of Rs 10,000/-, failing which petitioners were liable to get interest @ 10% p.a. till realization. The State Commission, in appeal filed by the respondent, condoned the delay of 594 days as per record relying upon the judgment of the Hon’ble Supreme Court in Collector, Land Acquisition, Anantnag Vs. Mst. Katiji & Ors, AIR 1987 SC 1353 on the ground that when substantial justice and technical considerations are pitted against each other, cause of substantial justice deserves to be preferred for the other side cannot claim to have vested right in injustice being done because of a non-deliberate delay. This order is challenged before this Commission by way of the instant revision petition.

3. Heard the learned counsel for the revision petitioner. When the matter was listed for final arguments on 09.05.2023, the learned counsel for the respondents present initially submitted that he was to receive instructions in the matter. He thereafter left the court room without intimation. He is therefore placed ex parte.

4. This revision petition assails the order of the State Commission condoning the delay of 594 days in filing the appeal before it. Admittedly, the delay of 594 days is inordinate. The moot issue is whether the delay condonable under section 5 of the Limitation Act. The delay according to the Ld Counsel for the appellant ascribable to the fact that respondents were not attending the proceedings before the District Forum despite notice and had to be proceeded against ex parte. Appellant contends that the respondent started to pressurise the appellant for execution of registering the deed of conveyance in his favour and that though the flat in question belonged to the respondent and his brother, the respondent had filed the complaint alone and misled the District Forum. Respondent was unable to contact his brother several times between 2017 and 2018. The appellants/ respondents were ready to compromise with the respondents and resolve the issue. However, the respondent ceased contact with the appellant and Police personnel came to house of the appellant nos. 2 and 3 to execute a warrant of arrest issued appellants by the District Forum