WHETHER TIME FOR FILING WRITTEN STATEMENT BY OPPONENT CAN BE EXTENDED

 (Section 13 of Consumer Protection Act)

            Whether earliar judgement of Supreme court by the same coordinate bench with same strength will be binding on earliar judgment  was the question before supreme court in the matter of  New India Assurance Co. Ltd. Vs. Hilli Multipurpose Cold Storage Pvt. Ltd.Civil Appeal Nos.10941-10942 Of 2013, Judgment Dated- 04.12.2015, ANIL R. Dave, J, Vikramajit Sen, Pinaki Chandra Ghose, Supreme Court Of India.

The whole issue was about the period within which the opponent has to give his version to the District Forum in pursuance of a complaint, which is admitted under Section 12 of the Act. Upon receipt of a complaint by the District Forum,if the complaint is admitted under Section 12 of the Act, a Copy   of the complaint is to be served upon the opposite party and as per provisions of Section 13 of the Act, the opposite party has to give his version of the case within a period of 30 days from the date of receipt of the copy of the complaint.There is a further provision in Section 13(2)(a) that the District Forum may extend the period, not exceeding 15 days, to the opposite party for giving his version. The relevant Section of the Act reads as under:

“13. Procedure on admission of complaint –

 (1)

…………………….

(2) The District Forum shall, if the complaint admitted by it under section 12 ……

(a) refer a copy of such complaint to the opposite party directing him to give his version of the case within a period of thirty days or such extended period not exceeding fifteen days as the case may be

Thus, upon plain reading of the aforestated Section, one can find that the opposite party is given 30 days’ time for giving his version and the said period for filing or giving the version can be extended by the District Forum, but the extension should not exceed 15 days. Thus, an upper cap of 45  days has been imposed by the Act for filing version of the opposite party.

This  question had come up before this Supreme court earlier  in the case of Dr. J.J. Merchant Dr. J.J. Merchant & Ors. v. Shrinath Chaturvedi, [(2002) 6 SCC 635]  

“whether the Forum can grant time beyond 45 days to the opposite party for filing its version”. After considering the aforestated section in the light of the object with which the Act has been enacted, a three-Judge Bench of this Court came to the conclusion that in no case period beyond 45 days can be granted to the opposite party for filing its version of the case

We now find another judgment which has been referred to by the referring Bench.

Kailash v. Nanhku & Ors. [(2005) 4 SCC 480]. This  case  pertains to Election Law. The issue involved in the said case was whether time limit of 90 days, as prescribed by the proviso to Rule 1 of Order 8 of the Civil Procedure Code, is mandatory or directory in nature. The said issue had arisen in an election matter where the written statement was not filed by the concerned candidate within the period prescribed under the relevant Election Law and the issue was whether in the Election trial, delay caused in filing the written statement could have been condoned.

 After considering the provisions of Order VIII Rule 1 of the Code of Civil Procedure, 1908 and several other judgments pertaining to grant of time or additional time for filing written statement or reply, in the interest of justice, this Court came to the conclusion that the provisions of Order VIII Rule 1 C.P.C. are not mandatory but directory in nature and therefore, in the interest of justice, further time for filing reply can be granted, if the circumstances are such that require grant of further time for filing the reply.

This  judgment delivered in the case of Kailash (supra) created doubts that on the footings of this judgment ,time for filing written statement in consumer matters can also be extended. Since J. J. Merchant matter was decided in 2002 and this case has been decided in 2005,later date  , it should be considered that Supreme Court has changed its stand in the context of grant of time in filing written statement .

We may need to discuss one more case in this context Topline Shoes Ltd. v. Corporation Bank

[(2002) 6 SCC 33].

The same issue was faced by the court  in the aforestated case. After discussing the provisions of Section 13(2) of the Act, this Court came to the conclusion that procedural rules should not be considered as mandatory in nature. In the said case, ultimately, this Court came to the conclusion that provision contained in Section 13(2)(a) of theAct is procedural in nature. According to the said judgment, the object behind enactment of the Act is speedy disposal of cases pending before the District Forum and therefore, it has been provided that reply should be filed within 30 days and the extension of time may not exceed 15 days. It has been further  observed that no penal consequences have been provided in the case of extension of time beyond 15 days and therefore, the said provision with regard to extension of time beyond a particular limit is directory in nature and that would not mean that extension of time cannot exceed 15 days.

However in the present case Honorable Supreme court has clarified all the doubts and held –

“we are of the opinion that the view expressed by the three- Judge Bench of this Court in Dr. J.J. Merchant (supra) should prevail The National Commission or the State Commission is empowered to follow the said procedure. From the aforesaid section it is apparent that on receipt of the complaint, the opposite party is required to be given notice directing him to give his version of the case within a period of 30 days or such extended period not exceeding 15 days as may be granted by the District Forum or the Commission. For having speedy trail, this legislative mandate of not giving more than 45 days in submitting the written statement or the version of the case is required to be adhered to. If this is not adhered to, the legislative mandate of disposing of the cases within three or five months would be defeated.

 There is one more reason to follow the law laid down in the case of Dr. J.J. Merchant (supra). Dr. J.J. Merchant (supra) was decided in 2002 by three judges bench and it should be followed by the courts as precedent.  Further  in context with consumer protection act, civil procedure is not followed Hence Kailash case is otherwise also not applicable to consumer cases.

Now finally coming to the legal position ,we may refer to the following judgement as guidelines

Central Board of Dawoodi Bohra Community & Anr. v. State of Maharashtra & Anr. [(2005) 2 SCC 673],

(1) The law laid down by this Court in a decision delivered by a Bench of larger strength is binding on any subsequent Bench of lesser or co-equal strength.

(2) A Bench of lesser quorum cannot disagree or dissent from the view of the law taken by a Bench of larger quorum. In case of doubt all that the Bench of lesser quorum can do is to invite the attention of the Chief Justice and request for the matter being placed for hearing before a Bench of larger quorum  for consideration.

            Hence now conclusion is that time granted for written statement under consumer protection act cannot be extended beyond 45 days in any case.

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