M/s Daddy’s Builders Pvt. Ltd. & Another …Petitioners

Versus

Manisha Bhargava and Another …Respondents

(Petition for Special Leave to Appeal (Civil) No. 1240 of 2021)

Decided on February 11, 2021. Supreme Court Of India

Legal Point

1.      Condonation of delay in filing written statement before the consumer commissions

Leading facts to the matter before Supreme Court

The State Commission rejected the application filed by the petitioners seeking condonation of delay in filing the written statement/written version to the consumer complaint on26.09.2018,

National Commission passed an order 04.09.2020 New Delhi  in First Appeal No. 1999/2018, by which the National Commission has dismissed the said appeal confirming the order passed by the Karnataka State Consumer Disputes Redressal dated 26.09.2018

Hence, the present special leave petition.

Argument submitted by petitioner

·         Decision by the Constitution Bench in the case of New India Assurance company Limited v. Hilli Multipurpose Cold Storage Private Limited, reported in (2020) 5 SCC 757 shall not be applicable retrospectively, and more particularly to the complaints filed before the said decision

( Ref -paragraph 63, the said judgment shall be applicable prospectively)

 

·         The application for condition of delay came up before the State Commission on 26.09.2018 and on that date there was a judgment of this Court in the case of Reliance General Insurance Co. Ltd. v. M/s Mampee Timbers & Hardwares Pvt. Ltd. (Diary No. 2365 of 2017 decided on 10.02.2017) directing the consumer fora to accept the written statement beyond the stipulated time of 45 days in an appropriate case, on suitable terms, including the payment of costs and to proceed with the matter, New India Assurance Company Limited v. Hilli Multipurpose Cold Storage Private Limited, reported in (2015) 16 SCC 20 had been referred to a larger Bench. Keeping in view the fact the State Commission ought to have condoned the delay in filing the written statement/written version to the consumer complaint

 

Supreme court did not agree to any of the above arguments and confirm the order passed by National Commission holding that period of 45 days for filing written statement is mandatory  stating reason -

·         Judgment is applicable as the case comes after pronouncement and not when filed or under proceeding. Moreover now Order of  Constitutional Bench  is final and  applicable on all matters as on date

·         Regarding Reliance General Insurance Co. Ltd. v. M/s Mampee Timbers & Hardwares Pvt. Ltd. (Diary No. 2365 of 2017 decided on 10.02.2017),it has lost relevance after confirmed verdict by constitutional bench.At the time state commission may or may not  exercise its discretion which depends on facts and circumstances of the case

 

Supreme court in earlier decision in New India Assurance Co. Ltd vs Hilli Multipurpose Cold Storage ... on 4 March, 2020 with other had two issues

 

                               I.            Consumer Protection Act, which provides for the respondent/opposite party filing its response to the complaint within 30 days or such extended period, not exceeding 15 days, should be read as mandatory or directory; 

                            II.            What would be the commencing point of limitation of 30 days stipulated under the aforesaid Section. 

On the first issue Court referred to the provision of the act 1986 as hereunder

“Section 13. Procedure on admission of complaint. – (1) The District Forum shall, on admission of a complaint, if it relates to any goods,­

(a)    refer a copy of the admitted complaint, within twenty ­one days from the date of its admission to the opposite party mentioned in the complaint directing him to give his version of the case within a period of thirty days or such extended period not exceeding fifteen days as may be granted by the District Forum.

The above provision makes it clear that ‘such extended period not exceeding fifteen days’ meaning thereby exceeding fifteen days is locked thereafter Not only that it also provide ‘such extended period not exceeding fifteen days as may be granted by the District Forum.’

Hence in clear terms ,it is held mandatory

Another question of commencing point of limitation ,SC replied by refereeing Code of Civil Procedure

·         Order VIII Rule 1 prescribes that the written statement shall be filed by the defendant within 30 days from the receipt of the “summons”.

·         “Summons” has been defined in Order V Rule 1 of the Code and Rule 2 provides that “Every summon shall be accompanied by a copy of the plaint.”

 

Hence commencing point of limitation of 30 days, under the aforesaid provisions, would be from the date of receipt of notice accompanied by a copy of the complaint, and not merely receipt of the notice, as the response has to be given, within the stipulated time, to the averments made in the complaint and unless a copy of the complaint is served on the opposite party, he would not be in a position to furnish its reply. (para 40)

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 afore stated 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 afore stated 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 the Act 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 Honourable 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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