National Consumer Disputes Redressal
Aranyak Developers Private Limited vs Snehasish Chatterjee & 7 Ors. on 30 August, 2023
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI FIRST APPEAL NO. 338 OF 2020 (Against the Order dated 05/02/2020 in Complaint No. 2/2019 of the State Commission West Bengal) 1. ARANYAK DEVELOPERS PRIVATE LIMITED HAVING REGD. OFFICE AT : B-80, SECTOR ZA, BIPIN CHANDRA PAL SARANI, POLICE STATION NEW TOWNSHIP, DURGAPUR, DISTRICT-PASCHIM BARDHAMAN, WEST BENGAL-713212 ...........Appellant(s) Versus 1. SNEHASISH CHATTERJEE & 7 ORS. SON OF HARIPADA CHATERJEE, RESIDING AT FLAT NO. 9-B, BLOCK-3 (15), BANABITHI, TAPOBAN CITY, POST OFFICE BAMUNARA, POLICE STATION KANKSA, DISTRICT-PASCHIM BARDHAMAN, PIN-713212 2. PANKAJ MUKHERJEE SON OF LATE SWAPAN MUKHERJEE, RESIDING AT 1/9, DEBI NAGAR, BENACHITY, DURGAPUR, BURDWAN-713112 3. MALAYA MUKHERJEE RESIDING AT B-80, B.B.C. PAL SARANI BENACHITY, DURGAPUR, BURDWAN-713213 4. SAMIR ROY SON OF TRISHUL ROY, RESIDING AT VILLAGE AND POST OFFICE BAMUNARA, POST KANSA, DURGAPUR-713212 5. PRABIR ROY RESIDNG AT VILLAGE AND POST OFFICE BAMUNARA, POST OFFICE KANKSA, DURGAPUR-713212 6. PRATIMA PAL RESIDING AT VILLAGE AND POST OFFICE BAMUNARA, POLICE STATION KANKSA, DURGAPUR, DISTRICT-PASCHIM BARDHAMAN, PIN-713212 7. TUMPAY ROY WIFE OF SHRI SAMIR ROY RESIDING AT VILLAGE AND POST OFFICE BAMUNARA, POLICE STATION KANKSA, DURGAPUR, DISTRICT-PASCHIM BARDHAMAN, PIN-713212 8. SMT. ARPITA ROY, WIFE OF SRI PRABIR ROY RESIDING AT VILLAGE AND POST OFFICE BAMUNARA, POLICE STATION KANKSA, DURGAPUR, DISTRICT-PASCHIM BARDHAMAN, PIN-713212 ...........Respondent(s)
BEFORE: HON'BLE MR. JUSTICE A. P. SAHI,PRESIDENT HON'BLE DR. SADHNA SHANKER,MEMBER FOR THE APPELLANT : NONE FOR THE RESPONDENT : MS. ANWESHA SAHA, ADVOCATE & MR. SALIM ANSARI, ADVOCATE FOR RESPONDENTS NO. 1 & 2 IN FA/337/2020 AND RESPONDENT NO. 1 IN FA/338/2020 Dated : 30 August 2023 ORDER Learned counsel for respondents no. 1 and 2 in First Appeal No. 337 of 2020 and respondent no.1 in First Appeal No. 338 of 2020 is present. None appears for the appellant.
The appellant's counsel has not attended to these appeals on the last two occasions. Learned counsel for the respondents has responded to the notice which was issued vide order dated 13.06.2022 and has urged that it is the complainants/respondents who are suffering on account of the interim order passed by this Court and therefore the appeals can be disposed of keeping in view the judgments of the Apex Court which have been referred to in the order dated 13.06.2022.
The State Commission had rejected the request of the appellant for filing the written version on the ground that they had come up with this request after the expiry of 45 days, including the extended period, and which was not permissible keeping in view the law laid down by the Apex Court in the case of New India Assurance Co. Ltd. Vs. Hilli Multipurpose Cold Stroage Pvt. Ltd. (Civil Appeal No. 10941 - 10942 of 2013), decided on 04.03.2020. The State Commission further indicated that it had no power to either review or recall its earlier order to proceed in the matter and therefore the permission to file the written version could not be granted. This order dated 05.02.2020 is under challenge in these appeals.
This Commission entertained this issue on 13.06.2022 and passed the following order:-
"The Asansol Circuit Bench of the West Begal State Consumer Disputes Redressal Commission vide Oders dated 07.01.2020 had rejected the contention raised by the Appellant herein that as there is an Arbitration Clause in the Agreement the matter be referred to Arbitrator and further that the Consumer Fora has no jurisdiction to entertain the Complaint by relying upon the decision of the Hon'ble Supreme Court in National Seeds Corporation Limited Vs. Madhusudan Reddy, 2012 (2) SCC 506; Rosedale Developers Private Limited Vs Aghore Bhattacharya And Others, (2018) 11 SCC 337; Om Prakash Shiny Vs. DCM & Ors., 2010 (6) SCALE 294; Nivedita Sharma Vs. Shellular Operators Association of India & Ors., (2011) 13 SCALE 584, Skypark Careers Limited Vs. Tata Chemical Limited, 200 CTJ 321 SC and M/s Emaar MGF Land Limited Vs. Aftab Singh, in Review Petition (C) Nos. 2629-2630 of 2018. The State Commission has rightly relied upon the aforesaid decisions of the Hon'ble Supreme Court and had held that even if there is an arbitration Clause in the Agreement entered into between the Parties that will not oust the jurisdiction of the Consumer Fora under the Consumer Protection Act, 1986 and it is not under any obligation to refer the matter to the Arbitrator.
However, the Order declining to grant further time to the Petitioner to file an Application for filing the Written Version beyond the statutory period of 45 days from the service of the notice requires to be considered in view of the decision of the Constitution Bench of the Hon'ble Supreme in Civil Appeal No. 10941-10942 of 2013 (New India Assurance Co. Ltd. Vs. Hilli Multipurpose Cold Storage Pvt. Ltd.) and other connected matters (MANU/SC/0272/2020), decided on 04.03.2020 as clarified by a Three Member Bench of the Hon'ble Supreme Court in Civil Appeal No. 7546 of 2021 - Diamond Exports & Anr. Vs. United India Insurance Co. Ltd. & Ors. decided on 14.12.2021, wherein it has been held that as the decision of the Constitution Bench was held to be applied prospectively from 04.03.2020 all such Applications filed for condonation of delay on or before 04.03.2020 has to be decided in accordance with law therefore the State Commission was not justified in declining to grant time to the Petitioner to file an Application for extension of time in filing the Written Version. The matters require consideration on this issue.
Issue notice on this limited issue as to whether the State Commission was justified in declining to grant further time to file an Application seeking permission to file the Written Version beyond the statutory period of 45 days or not, returnable on 14.10.2022.
List on 14.10.2022.
Till then, further proceedings pending before the State Commission in CC/1/2019 and CC/2/2019 shall remain stayed."
Today when the matter has been heard in the absence of learned counsel for the appellant, learned counsel for the respondents has invited the attention of the Court to the ratio of the judgment of the Apex Court in the case of Diamond Exports & Anr. Vs. United India Insurance Co. Ltd. & Ors. (Civil Appeal No. 7546 of 2021, decided on 14.12.2021, wherein it has been held that the ratio of the judgment in the case of New India Assurance Co. Ltd. Vs. Hilli Multipurpose Cold Stroage Pvt. Ltd. (Supra) would be applicable prospectively, i.e. from 04.03.2020 onwards, which is the date of the decision in these cases. It is submitted that in the wake of the aforesaid declaration, since the order passed in this case is of 05.02.2020 and is prior to 04.03.2020, the right to file the written version after 45 days is not forfeited automatically and is subject to condonation of delay at the discretion of the forum as was the law prior to that.
Having considered the submissions raised, the appeals deserve to be allowed to the aforesaid extent, leaving it open to the State Commission to consider the request of the appellant for accepting the written version or otherwise after hearing the matter on the delay which is liable to be explained by the appellant before the State Commission itself and subject to objections by the other side.
Learned counsel for the respondents submits that there is a stated delay of 300 days which cannot be ignored.
The State Commission shall therefore be at liberty to consider the request of the appellant in accordance with law on the issue of condoning the delay or otherwise of the presentation of the written version after considering the objections of the complainants and pass appropriate orders in the light of the observations made hereinabove and the law laid down by the Apex Court.
Consequently, the appeals are allowed to that extent and the order dated 05.02.2020 is set aside. The matter is remanded back to the State Commission for decision afresh on the issue in the terms indicated above preferably within three months from the date of presentation of a certified copy of the order passed today. The interim order staying further proceedings is hereby discharged.
Learned counsel for the respondents may intimate this order to the learned counsel for the appellant as well as the State Commission.
.........................J A. P. SAHI PRESIDENT ............................................. DR. SADHNA SHANKER MEMBER