State Consumer Disputes Redressal Commission
Mohan G. Kurade vs Rui Manuel Pinto & Others on 26 October, 2015
1
BEFORE THE GOA STATE CONSUMER DISPUTES
REDRESSAL COMMISSION,
PANAJI- GOA
FA No. 64/2015
Mr. Mohan G. Kurade,
Presently R/o. 'Shivoham',
Ribeiro Enclave, Behind I.T.I,
Altinho, Panaji, Goa. ......Appellant
v/s.
1. Mr. Rui Manuel Pinto,
Sole Proprietor. 'M/s. Pinto Real Estate',
Pinto Arcade, 1st floor, D.B. Marg,
Campal, Panaji, Goa.
2. Mr. Jose Cristovam Pinto,
3. Mrs. Telma de Sa Pinto,
H. No. 508, Betim,
Bardez, Goa. .......Respondents
Appellant/Complainant is represented by Adv. Shri. N.G. Kamat.
Respondents exparte.
Coram: Shri. Justice N.A. Britto, President
Shri. Jagdish G. Prabhudesai, Member
Dated: 26/10/2015
ORDER
[Per Shri Justice N. A. Britto, President] Heard Shri. N.G. Kamat, the lr. advocate of the complainant.
2. The Complainant has taken exception to the order dated 4/8/15 of the District Forum in C.C. No. 62/2014 by which the delay of 151 days, beyond 45 days, has been condoned in filing the written version by the OPs i.e. by the Respondents herein.
23. Shri. Kamat, the lr. advocate would submit that, at the time of arguments, that the complainant had placed reliance on the decision of this State Commission dated 27/10/14 in Audi India, Division of Volkswagen Group Sales India Pvt. Ltd., vs. Mr. Richard Antonio D'Costa & anr. by which it was held that the District Forum has no power to extend time beyond 30 + 15 days as provided by Section 13(2) (a) of the C.P. Act, 1986 and the Lr. District Forum has ignored the said decision and passed the impugned order contrary to the said provision of the C.P. Act, 1986 and the law laid down by the State Commission in the said decision.
4. The Respondents were duly served with notice but have chosen to remain absent on 12/10/15, 19/10/15 and 23/10/15 and as such we have decided to proceed exparte against them.
5. A perusal of the record would show that notice of the complaint was sent to the Respondents i.e. the OPs in the said consumer complaint to file the written version within a period of 30 days from the receipt of the notice and the case was fixed on 4/9/14 for appearance/filing of written version.
6. The OPs were duly served with the notice of the complaint on or about 7/8/14 but did not turn up before the Forum on 4/9/14 as required and as such the case was adjourned to 23/9/14 and then again to 13/10/14 on which day the OPs put up their appearance through Adv. Ms. K. Parab and the case was adjourned to file written version on 28/10/14. On 28/10/14 time was sought again on behalf of the OPs and the case was fixed on 7/11/14.
7. On 7/11/14 the OPs through their advocate filed another application for time to file written version and the same was objected to on behalf of the complainant but the Lr. District Forum proceeded 3 to grant time by an order which says "time granted, as prescribed under law" - whatever it means - on payment of cost of Rs. 500/-.
8. On 11/11/14, on behalf of the OPs an assurance was given that the written version would be filed during the course of the day. Complainant again objected to the filing of the written version as it was not filed within the time prescribed and the case was therefore fixed for production of the evidence of the complainant on 1/12/14.
9. On the next date i.e. on 12/11/14, the OPs filed their separate written versions, presumably in the office. On 1/12/14 the case was again adjourned for the evidence of the complainant to 17/12/14 and on the same day i.e. on 01/12/14 the complainant filed in the office an application to discard the written versions, as there was a delay of 51 days beyond 45 days from the date of service of notice. The OPs filed their reply to the said application of the complainant on 8/1/15 and thereafter on 24/2/15 filed the applications for condonation of delay which have been disposed off by the impugned order. The application dated 1/12/14 has remained pending, though the same was required to be disposed off alongwith application dated 24/2/15.
10. The case of OP No. 1 in the said application dated 24/2/15 is that from August to November, 2014 OP No. 1 had made various trips to Mumbai and then to Hyderabad and was in Portugal for a period of three weeks, in connection with his professional work. OP No. 1 did not produce any materials to substantiate the said averments, except by his own affidavit. The case of OP No. 2 and 3 was that despite of various attempts, they were not in a position to procure necessary documents, they being of 89 and 82 years of age, respectively. They too did not produce any material to support the said averments, except the affidavit of OP No. 3.
411. The Lr. District Forum has proceeded to condone the delay with the following observations:
"We have heard advocates for both the parties. We are of the opinion that the matter is at the pecuniary stage and there was a delay of 51 days in filing the written version. The OP also paid the cost to the complainant of Rs. 500/- when time was granted to the OP to file written version. Also the costs were received by the advocate of Complainant. The Forum is satisfied with this justification mentioned in the application. Even if there is delay in filing of the written version, opportunity to file written version is to be granted in the interest of justice, by imposing costs."
12. In the case of Audi India, Division of Volkswagen Group Sales India Pvt. Ltd., (supra), this State Commission had held as follows:-
"12. As rightly pointed out by the Bench of the National Commission in Tata AIG General Insurance Co. Ltd., (supra) the case of Dr. J.J. Merchant vs. Srinath Chaturvedi is directly on the point of a provision which the Fora under the C.P. Act are required to follow while the case of Kailash vs. Nanhku & ors., although a three Judge Bench decision of the Apex Court, is on a provision of law, i.e. Order VIII, Rule 1, of C.P.C. which provision of law the Fora are not required to follow, particularly in view of the provisions of Section 13(4) of the C.P. Act r/w Regulation 26 of the Regulations, 2005.
13. In our view, there is no question of following Kailash vs. Nanhku & ors. (a three Judge decision of the Apex Court) when there is also a three judge decision of the Apex Court in Dr. J.J. Merchant vs. Srinath Chaturvedi which is directly on the point and which decision has been subsequent explained by the Apex Court in Fairgrowth Investments Ltd., vs. Custodian (supra).5
15. It also appears that the view taken by the Apex Court in Fairgrowth Investments Ltd., vs. Custodian (supra) is now pending for decision before the larger Bench of the Apex Court in Civil Appeal No. 10808/13 filed by New India Assurance Company Ltd., vs. Hilly Multipurpose Storage Pvt. Ltd. In our view, till the said view is changed by a larger Bench of the Apex Court, we are bound to follow the decision of the Apex Court directly on the point i.e. in Dr. J.J. Merchant & ors., vs. Srinath Chaturvedi (supra) as explained in Fairgrowth Investments Ltd., and as followed by the National Commission in Aviva Life Insurance Company Ltd., and thereafter consistently by this Commission. It may be stated that prior to the decision in Aviva Life Insurance Company (India) Ltd., this Commission was following for sometime the view in Topline Shoes. Law requires certain amount of certainty and uniformity. Till Fairgrowth Investments Ltd., is reconsidered by the Apex Court, it is this decision which is required to be followed."
13. We are entirely in agreement with the submission made by Lr. Adv. Shri. Kamat. The Lr. District Forum has exhibited some sort of judicial indiscipline in ignoring the decision cited and passing the order contrary to it. Propriety demands that District Forums follow the law laid down by the State Commission and the State Commission follows the law laid down by the National Commission. Least which was expected of the Lr. North Goa District Forum was to refer to the said decision and distinguish the same, if at all it was distinguishable. Not that the Lr. District Forum was unaware that time to file written statement beyond 45 days cannot be extended. That time cannot be extended beyond 45 days is the view taken by the Lr. Forum on 20/08/14 in CC No. 72/2013.
614. The complainant did object to the grant of adjournment to the OPs on 7/11/14. That the complainant's advocate received cost of Rs. 500/- awarded on 7/11/14 on 11/11/14 could not be held against the complainant. As already noted, the complainant even objected for granting of further time on 11/11/14. The Lr. District Forum, it appears, was fully aware that they had no powers to extend time beyond 45 days to file written version on 7/11/14 which time had already expired and inserting a sentence thereafter "time granted as prescribed under law" had no meaning.
15. The OPs had not made out any case either on facts or in law to obtain extension of time beyond 45 days in filing the written version. We therefore allow the appeal and set aside the impugned order. The written versions filed shall not be considered by the Lr. District Forum, the same not having been filed during time prescribed. Parties to appear before the Lr. District Forum on 30th instant for further proceedings.
[Shri. Jagdish Prabhudessai] [Justice Shri. N.A. Britto]
MEMBER PRESIDENT
sp/-