National Consumer Disputes Redressal
Kamala Roy Choudhury & 4 Ors. vs Subrata Das on 23 May, 2017
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI FIRST APPEAL NO. 774 OF 2016 (Against the Order dated 30/05/2016 in Complaint No. 289/2015 of the State Commission West Bengal) 1. KAMALA ROY CHOUDHURY & 4 ORS. W/O. LATE BIBHUTI PRASANNA ROY CHOUDHARY, REP. BY THEIR ATTORNEY SRI. PRASANTA ROY CHOUDHARY @ GOPAL ROY CHOUDHARY PRESENTLY R/O. AT "BIBHUTI APARTMENT, FLAT NO. D-1 & D-2, 4TH FLOOR, 1/1, BAGHAJATIN STATION ROAD, P.O. JADAVPUR UNIVERSITY, P.S. JADAVPUR, KOLKATA-32 2. SMT. MANJULA ROY CHOUDHARY W/O. SAMIR ROY CHOUDHARY, REP. BY THEIR ATTORNEY SRI. PRASANTA ROY CHOUDHARY @ GOPAL ROY CHOUDHARY PRESENTLY R/O. AT "BIBHUTI APARTMENT, FLAT NO. D-1 & D-2, 4TH FLOOR, 1/1, BAGHAJATIN STATION ROAD, P.O. JADAVPUR UNIVERSITY, P.S. JADAVPUR, KOLKATA-32 3. SMT. BHARTI DUTTA W/O. AMITAVA DUTTA, REP. BY THEIR ATTORNEY SRI. PRASANTA ROY CHOUDHARY @ GOPAL ROY CHOUDHARY PRESENTLY R/O. AT "BIBHUTI APARTMENT, FLAT NO. D-1 & D-2, 4TH FLOOR, 1/1, BAGHAJATIN STATION ROAD, P.O. JADAVPUR UNIVERSITY, P.S. JADAVPUR, KOLKATA-32 4. M/S. BIBHUTI SHELTERCON, REPRESENTTIVE BY ITS PARTNER, HAVING ITS OFFICE AT 2, BAGAJATIN STATION ROAD, P.S. JADAVPUR, P.O. JADAVPUR UNIVERSITY, KOLKATA-700032 5. SMT. RANJU ROY CHOUDHARY WIFE OF PRASANNA ROY CHOUDHARY, PRESENTLY RESIDING AT "BIBHUTI APARTMENT", FLAT NO. D-1 AND D-2, 4TH FLOOR, 1/1, BAGHAJATIN STATION ROAD, P.O. JADAVPUR UNIVERSITY, P.S. JADAVPUR, KOLKATA-700032 ...........Appellant(s) Versus 1. SUBRATA DAS SON OF SHANTI RANJAN DAS, R/O. AT BIBHTI APARTMENT, FLAT NO. H-1, 4TH FLOOR, 1, BAGHAJATIN STATION ROAD, P.O. JADAVPUR UNIVERSITY, P.S. JADAVPUR, KOLKATA-700032 2. SMT. ANTARA DAS (BISWAS) WIFE OF SUBRATA DAS RESIDING AT "BIBHUTI APARTMENT", FLAT NO. H-1, 4TH FLOOR, 1, BAGHAJATIN STATION ROAD, P.O. JADAVPUR UNIVERSITY, P.S. JADAVPUR, KOLKATA-700032 3. SRI SAMIR ROY CHOUDHARY, SON OF LATE SISIR ROY CHOUDHARY, PRESENTLY RESIDING AT, RESIDING AT "BIBHUTI APARTMENT" FLAT NO. G-1, 3RD FLOOR, 1, BAGHAJATIN STATION ROAD, P.O. JADAVPUR, UNIVERSITY, P.S. JADAVPUR, KOLKATA-700032 ...........Respondent(s)
BEFORE: HON'BLE MR. DR. B.C. GUPTA,PRESIDING MEMBER HON'BLE MR. DR. S.M. KANTIKAR,MEMBER
For the Appellant : For the Respondent :
Dated : 23 May 2017 ORDER
APPEARED AT THE TIME OF ARGUMENTS
For the Appellant
:
Mr. Alok Mukhopadhyay, Advocate
For the Respondent 1 & 2
:
Mr. Nadeem Sulaiman, Advocate
with Ms. Sunita Guha, Advocate
For the Respondent 3
:
Mr. Alish Majumdar, Advocate
PRONOUNCED ON : 23RD MAY 2017
O R D E R
PER DR. B.C. GUPTA, MEMBER This first appeal has been filed under section 19 read with section 21(a)(ii) of the Consumer Protection Act, 1986 against the impugned order dated 30.05.2016, passed by the West Bengal State Consumer Disputes Redressal Commission (hereinafter referred to as 'the State Commission') in Consumer Complaint No. CC/289/2015, filed by the present respondents/complainants, vide which, the right of the appellants/opposite parties/OPs to file written statement in the case was closed.
2. The impugned order dated 30.05.2016 passed by the State Commission reads as follows:-
"Both the parties are present through their Ld Advocates. Ld. Advocate for the OPs has submitted that written version is ready but due to non-availability of the OPs', affidavit could not be done and as such prays for time to file written version. Such a submission could not inspire us. In view of the provisions of Section 13(4) read with Section 18 of the Consumer Protection Act and keeping in view the decision of three Judges Bench of the Supreme Court of India reported in 2016(1) Supreme 319(New India Assurance Co. Ltd -Vs- Hilli Multipurpose Cold Storage Pvt. Ltd) no further time can be given after expiry of 45 days in any circumstances. Under compulsion, the case shall be heard on the decided ex parte.
Seen the report filed by Ld. Engineer Commission appointed in this case. Let it be made part of the record.
To 19.07.2016 for filing evidence on affidavit on behalf of the Complainant."
3. As admitted in the memo of appeal as well as during arguments before us, the appellant/OP failed to file the written statement within the time prescribed u/s 13 of the Consumer Protection Act, 1986. The State Commission refused to grant them further time for filing the written statement beyond period of 45 days, relying upon the judgement of the Hon'ble Supreme Court in "New India Assurance Co. Ltd. Vs. Hilli Multi Purpose Cold Storage Pvt. Ltd." [Civil Appeal No.10941-10942 decided on 4.12.15]. During hearing before us, the learned counsel argued that on 30.05.2016, the written statement was ready but could not be filed, because the lawful attorney of the appellants/OPs had to leave for Bhubaneswar on 26.05.2016 due to his son's professional examination. The OPs requested the State Commission to grant them one more day to enable them to file the written statement, but the request was turned down. The learned counsel for the complainants/respondents stated, however, that the order passed by the State Commission was in accordance with law and there was no reason to allow the present appeal.
4. The matter has been examined from time to time in a number of judgments passed by the Hon'ble Apex Court. In their judgment in "M/s. Bhasin Infotech and Infrastructure Pvt. Ltd. vs M/s. Venezia Buyers Association (Regd.) [Civil Appeal No. 1083-84 of 2016 order dated 11.02.2016]" the Hon'ble Apex Court examined the view taken in the order dated 04.12.2015 in "New India Assurance Co. Ltd. Vs. Hilli Multi Purpose Cold Storage Pvt. Ltd." (supra) and decided to refer the matter to a larger Bench of the Hon'ble Supreme Court. However, in another order on the issue, "Reliance General Insurance Co. Ltd. & Anr. vs. M/s Mampee Timbers & Hardwares Pvt. ltd. & Anr. [Civil Appeal D. No. 2365 of 2017 decided 10.02.2017]", it was observed as follows:-
"We consider it appropriate to direct that pending decision of the larger bench, it will be open to the concerned Fora to accept the written statement filed 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."
5. Relying upon the order dated 10.02.2017 as stated above, we feel that it shall be in the interest of justice if the appellants are allowed to file their written version before the State Commission subject to payment of a total cost of ₹20,000/- to both the complainants, within a period of 2 weeks from today. The written statement shall have to be filed before the State Commission within a further period of one week from the date of making such payment. The State Commission shall then proceed with the consumer complaint in accordance with law. The first appeal stands disposed off accordingly.
...................... DR. B.C. GUPTA PRESIDING MEMBER ...................... DR. S.M. KANTIKAR MEMBER