National Consumer Disputes Redressal
M/S. L & T Finance Ltd. vs Jagdish Tulsiram Patil on 22 January, 2016
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI FIRST APPEAL NO. 1027 OF 2015 (Against the Order dated 23/07/2015 in Complaint No. 31/2015 of the State Commission Maharastra) 1. M/S. L & T FINANCE LTD. HAVING ITS REGISTERED OFFICE AT: L & T HOUSE, BALLARD ESTATE, P.O. BOX 278, MUMBAI-400001 MAHARASHTRA ...........Appellant(s) Versus 1. JAGDISH TULSIRAM PATIL RESIDING AT POST SONGIR, TALUKA DHULE, DISTRICT-DHULE ...........Respondent(s)
BEFORE: HON'BLE MR. JUSTICE V.B. GUPTA, PRESIDING MEMBER HON'BLE MR. PREM NARAIN, MEMBER
For the Appellant : Mr. Puneet Bajaj, Adv. For the Respondent :
Dated : 22 Jan 2016 ORDER
ORDER
(After Lunch) Appellant/Opposite Party being aggrieved by impugned order dated 23.07.2015 passed by State Consumer Disputes Redressal Commission, Maharashtra, Mumbai (for short, 'State Commission') in Complaint Case No.31 of 2015, has filed present appeal. Along with it, an application seeking condonation of delay of 50 days has been filed. However, as per office note, there is delay of 81 days.
2. Brief facts are, that Respondent/Complainant filed a consumer complaint against the appellant in the year 2014. Since, appellant failed to appear before State Commission inspite of receipt of the notice without any sufficient reason, it was proceeded exparte vide impugned order and which read as under;
" Dated : 23 July, 2015 ORDER Mr. Amit Gharte, Advocate present for the complainant. None present for the opponent. Record shows that opponent failed to appear in this consumer complaint without any sufficient reason in spite of receipt of notice. Hence, consumer complaint to proceed ex-parte against the opponent. Now, matter stands adjourned to 21.10.2015 for filing affidavit of evidence by the complainant as per provisions of Section 13(2) (b) (ii) r/w Section 13(4) of Consumer Protection Act, 1986."
3. The appellant in its 'Grounds of Appeal' has admitted, that it had received notice of present complaint on or around 26.3.2015. It has a separate legal department which looks after all legal matters and the notice ought to have been forwarded to the legal department in the normal course. However, inadvertently the notice was not sent to the legal department and was misplaced. Hence, under these circumstances appellant could not enter its appearance and was proceeded exparte. Therefore, exparte order passed against appellant be set aside and appellant may be given opportunity to contest the complaint. In support, learned counsel has relied upon following judgments;
(i) Shailaja A. Sawant (Dr.) Vs. Sayajirao Ganpatrao Patil, 2004 (5) BomCR,548 and
(ii) Assam State Electricity Board & Ors. Vs. M/s. Purbanchal Cables & Conductors (P) Ltd.
(Civil Appeal No.7220 of 2008 decided by Hon'ble Supreme Court on May 22, 2014.)
4. Now coming to the application for condonation of delay, the impugned order was passed on 23.07.2015, whereas present appeal has been filed only on 21.12.2015. The grounds seeking condonation of delay, relate to the proceedings which took place before the State Commission. It is stated that on 23.07.2015, a panel Advocate of appellant appeared before the State Commission. He noted that matter was listed before the State Commission on that day. But legal department of the appellant was not aware of the pendency of the matter before State Commission. In fact, the service was effected on the appellant on or around 26.3.2015. Thus, there was delay in drafting the present appeal.
5. It is well settled that "sufficient cause" for condoning the delay in each case is a question of fact.
6. Hon'ble Supreme Court in Anshul Aggarwal vs. New Okhla Industrial Development Authority, IV (2011) CPJ 63 (SC) has laid down that;
"It is also apposite to observe that while deciding an application filed in such cases for condonation of delay, the Court has to keep in mind that the special period of limitation has been prescribed under the Consumer Protection Act, 1986 for filing appeals and revisions in consumer matters and the object of expeditious adjudication of the consumer disputes will get defeated if this Court was to entertain highly belated petitions filed against the orders of the consumer Foras."
7. In present case, as per averments made in the application, no ground whatsoever is made out to condone the delay. Therefore, application for condonation of delay is liable to be dismissed.
8. Now coming to the merits of the case, it is appellant's own case that it had received the notice from the State Commission for appearance on or around 26.03.2015. Admittedly, thereafter appellant did not appear before the State Commission, even on 23.07.2015 when impugned order was passed. When appellant has chosen not to appear before the State Commission, inspite of receipt of the notice then nobody else, except appellant itself is to be blamed for its non-appearance. This plea of appellant, that notice was not received by their legal department is of no consequences, as appellant was served at its registered address. Since, appellant did not file its written statement within the prescribed period under the Act, therefore, State Commission rightly passed the impugned order.
9. Recently, Hon'ble Supreme Court in New India Assurance Co. Ltd. Vs. Hilli Multipurpose Cold Storage Pvt. Ltd. (Civil Appeal Nos.10941-10942 of 2013) decided on 4th December, 2015 observed;
"3. The whole issue centers round 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 relates to goods in respect of which the procedure specified in subsection (1) cannot be followed, or if the complaint relates to any services,-
(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 may be granted by the District Forum;
(b) ..................................................................."
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.
4. The question arose in the case of Dr. J.J. Merchant (supra) 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.
5. Without discussing the aforestated three-Judge Bench Judgment in detail, we now turn to another judgment which has been referred to by the referring Bench. The other judgment which has been referred to is Kailash (supra), which 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.
6. 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.
7. The judgment delivered in the case of Kailash (supra) is later in point of time and while considering the said judgment, judgment delivered in the case of Dr.J.J. Merchant (supra) had also been considered by this Court.
8. In the aforestated circumstances, we have now to consider whether in a case under the provisions of the Act, where a complaint has been filed and the opposite party has not filed its version to the case within 30 days or within extended period of 45 days, which at the most could have been granted by the District Forum, the version given by the opposite party can be accepted.
9. The learned counsel appearing for the complainant submitted that the view expressed by the three-Judge Bench of this Court in Dr. J.J. Merchant (supra) is absolutely just and proper and is on the subject, with which facts of the present case are concerned. The said case also deals with the provisions of Section 13(2) (a) of the Act, whereas case of Kailash (supra) pertains to an Election trial and under a different Act.
10. According to the learned counsel appearing for the complainant, in the instant case, in fact, there is no conflict between the two judgments referred to hereinabove as the judgment delivered in Dr. J.J. Merchant (supra) was prior in time and was on the subject of the Act. Looking at the contents of the said judgment, it is clear that the said judgment also pertains to the provisions with regard to grant of time for filing version of the opposite party before the District Forum. Once a judgment has been delivered by a three-Judge Bench on the same subject and on the same section, according to the learned counsel, there was no need to re-consider the same.
11. On the other hand, the learned counsel appearing for the other side contended that as per the view expressed in the case of Kailash (supra), the District Forum can grant time beyond 15 days to the other side for giving its version or reply. The learned counsel submitted that the marginal note to Section 13 of the Act reads "procedure on completion of complaint'. Thus, the provisions incorporated in Section 13 of the Act are merely procedural and are directory in nature, as observed by this Court in the case of Kailash (supra).
12. The learned counsel also referred to a judgment delivered in the case of Topline Shoes Ltd. v. Corporation Bank [(2002) 6 SCC 33]. This Court was faced with the same issue 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 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. Relying upon the said judgment and the judgment delivered in the case of Kailash (supra), the learned counsel submitted that as Dr. J.J. Merchant (supra) has not been followed in a later case though it was considered in the case of Kailash (supra), the correct legal position would be to treat the said provision with regard to maximum period for filing the reply is directory and not mandatory.
13. The learned counsel further submitted that some of the provisions of Civil Procedure Code do apply to the District Forum and in the light of the said fact, in his submission, the provisions of Section 13(2)(a) of the Act are merely directory and not mandatory in nature.
14. The learned counsel also submitted that if further time is not granted, irreparable damage would be caused to the other side and in a case where the other side/respondent is staying at a distant place, it might not be possible for the respondent/other side to file its version even within 45 days and therefore, in the interest of justice, the view expressed in the case of Kailash (supra) should be accepted.
15. Upon hearing the concerned counsel and upon perusal of both the judgments referred to hereinabove, which pertain to extension of time for the purpose of filing written statement, 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.
16. In the case of Dr. J.J. Merchant (supra), which is on the same subject, this Court observed as under:
"13. 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 trial, 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.
14. For this purpose, even Parliament has amended Order 8 Rule 1 of the Code of Civil Procedure, which reads thus:
"1. Written statement. - The defendant shall, within thirty days from the date of service of summons on him, present a written statement of his defence:
Provided that where the defendant fails to file the written statement within the said period of thirty days, he shall be allowed to file the same on such other day, as may be specified by the court, for reasons to be recorded in writing, but which shall not be later than ninety days from the date of service of summons."
15. Under this Rule also, there is a legislative mandate that written statement of defence is to be filed within 30 days. However, if there is a failure to file such written statement within the stipulated time, the court can at the most extend further period of 60 days and no more. Under the Act, the legislative intent is not to give 90 days of time but only maximum 45 days for filing the version of the opposite party. Therefore, the aforesaid mandate is required to be strictly adhered to."
17. We are, therefore, of the view that the judgment delivered in the case of Dr. J.J. Merchant (supra) holds the field and therefore, we reiterate the view that the District Forum can grant a further period of 15 days to the opposite party for filing his version or reply and not beyond that.
18. 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, whereas Kailash (supra) was decided in 2005. As per law laid down by this Court, while deciding the case of Kailash (supra), this Court ought to have respected the view expressed in Dr. J.J. Merchant (supra) as the judgment delivered in the case of Dr. J.J. Merchant (supra) was earlier in point of time. The aforestated legal position cannot be ignored by us and therefore, we are of the opinion that the view expressed in Dr. J.J. Merchant (supra) should be followed.
19. Our aforestated view has also been buttressed by the view expressed by this Court in the case of Central Board of Dawoodi Bohra Community & Anr. v. State of Maharashtra & Anr. [(2005) 2 SCC 673], wherein a question had arisen whether the law laid down by a Bench of a larger strength is binding on a subsequent Bench of lesser or equal strength. After considering a number of judgments, a five- Judge Bench of this Court, finally opined as under:
"12. Having carefully considered the submissions made by the learned senior counsel for the parties and having examined the law laid down by the Constitution Benches in the abovesaid decisions, we would like to sum up the legal position in the following terms :-
(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 than the Bench whose decision has come up for consideration. It will be open only for a Bench of coequal strength to express an opinion doubting the correctness of the view taken by the earlier Bench of coequal strength, whereupon the matter may be placed for hearing before a Bench consisting of a quorum larger than the one which pronounced the decision laying down the law the correctness of which is doubted.
(3) The above rules are subject to two exceptions: (i) The abovesaid rules do not bind the discretion of the Chief Justice in whom vests the power of framing the roster and who can direct any particular matter to be placed for hearing before any particular Bench of any strength; and
(ii) In spite of the rules laid down hereinabove, if the matter has already come up for hearing before a Bench of larger quorum and that Bench itself feels that the view of the law taken by a Bench of lesser quorum, which view is in doubt, needs correction or reconsideration then by way of exception (and not as a rule) and for reasons given by it, it may proceed to hear the case and examine the correctness of the previous decision in question dispensing with the need of a specific reference or the order of Chief Justice constituting the Bench and such listing. Such was the situation in Raghubir Singh and Hansoli Devi."
20. In view of the aforestated clear legal position depicted by a five-Judge Bench, the subject is no more res integra. Not only this three-Judge Bench, but even a Bench of coordinate strength of this Court, which had decided the case of Kailash (supra), was bound by the view taken by a three-Judge Bench in the case of Dr. J.J. Merchant (supra).
21. In view of the aforestated legal position, we are of the view that the law laid down by a three-Judge Bench of this Court in the case of Dr. J.J. Merchant (supra) should prevail. The Reference is answered accordingly."
10. Thus, gross negligence, deliberate inaction and lack of bonafides are imputable to the appellant. The application for condonation of delay in such circumstances, is not maintainable at all and same stand dismissed. Consequently, the appeal being barred by limitation as well as on merits stand dismissed, with cost of Rs.10,000/- (Rupees Ten Thousand only).
11. Appellant is directed to deposit the cost by way of demand draft in the name of 'Consumer Legal Aid Account' of this Commission, within four weeks from today.
12. In case, appellant fails to deposit the cost within the prescribed period, then it shall also be liable to pay interest @ 9% p.a. till realization.
13. List for compliance on 11th March, 2016 at 2.00 P.M. ......................J V.B. GUPTA PRESIDING MEMBER ...................... PREM NARAIN MEMBER