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M/s. Nucleus Premium Properties Ltd., represented by its Managing Director & Another v/s R. Murali Krishnan & Others

    Revision Petition No. 19 of 2021
    Decided On, 08 November 2021
    At, Kerala State Consumer Disputes Redressal Commission Thiruvananthapuram
    By, THE HONOURABLE MR. JUSTICE K. SURENDRA MOHAN
    By, PRESIDENT
    By, THE HONOURABLE MR. T.S.P. MOOSATH
    By, JUDICIAL MEMBER
    By, THE HONOURABLE MR. R. RANJIT
    By, MEMBER
    By, THE HONOURABLE MRS. A. BEENAKUMARI
    By, MEMBER & THE HONOURABLE MR. K.R. RADHAKRISHNAN
    By, MEMBER
    For the Appellants: P. Balakrishnan, Advocate. For the Respondents: ------


Judgment Text
K. Surendra Mohan, President

This Revision is filed against an order dated 23.06.2021 of the District Consumer Disputes Redressal Commission, Ernakulam (hereinafter referred to as District Commission for short) in I.A.No.231/2020 in C.C.No.448/2019, dismissing a petition for review filed by the Revision Petitioners. The Revision Petitioners are opposite parties 1 and 2 in C.C.No.448/2019. Respondents 1 and 2 herein are the complainants. Respondents 3 to 9 are the other opposite parties in the complaint.

2. The complaint was filed complaining of delay in the commissioning of a residential apartment by the 1st opposite party. As per the order under Revision, the District Commission has rejected the version filed by the opposite parties on the ground that it was not filed within the prescribed time limit. According to the Revision Petitioners, the order of the District Commission is wrong and is liable to be set aside.

3. C.C.No.448/2019 was taken on file by the District Commission on 27.11.2019. On 28.11.2019 notices were issued to all the opposite parties and the case was posted for return of notice to 23.01.2020. The 1st opposite party accepted notice in November, 2019. The 2nd opposite party accepted notice on 07.12.2019. The statutory time limit for filing version is a period of 30 days from 07.12.2019. On 23.01.2020 opposite parties 1 and 2 appeared and filed Vakalath, but did not file version. The District Commission directed the opposite parties to file their version within 30 days and the case was posted to 16.03.2020. On 16.03.2020 though the opposite parties had appeared, no version was filed. Therefore, the time limit of 15 days up to which the District Commission could have extended, also expired on 07.03.2020. The case was posted for ex-parte evidence to 06.05.2020. Finally, on 25.09.2020 version was filed by opposite parties 1 and 2.

4. Along with the version I.A.176/2020 was filed to accept the written version. However, the same was dismissed. Therefore, I.A.231/2020 was filed seeking review of the order passed in I.A.176/2020 and praying that the said petition may be allowed. The said petition was dismissed by the District Commission on 23.06.2021. It is against the said order that this Revision is filed.

5. According to Advocate P. Balakrishnan who appears for the Revision Petitioners, the order under Revision was passed without proper appreciation of the evidence on record and the law applicable to the point. The finding of the District Commission that the version of the opposite parties had to be filed in the 1st week of January, 2020 is wrong. It is also contended that the decision of the Supreme Court in New India Assurance Company Ltd. VS. Hilli Multi-Purpose Cold Storage Pvt. Ltd. (2020)5 SCC 757 has been wrongly interpreted and applied. The learned counsel places particular reliance on the fact that the Constitution Bench has ordered the dictum to have only prospective application. Therefore the period of limitation, as clarified by the said judgement would have effect only from 04.03.2020, the date on which it was pronounced. In pending cases, an extension of at least 15 days ought to be granted from 04.03.2020, since the limit was considered to be mandatory only from the said date. Here, the case stood posted for filing written statement to 16.03.2020 and therefore, the Revision Petitioners are entitled to be granted an extension of the time limit from the said date.

6. Apart from the above the counsel points out that in view of the spread of the Covid-19 pandemic, the lockdown that was imposed and the quarantine that had to be observed, the Revision Petitioners were prevented from filing their version during the said period. The District Commission itself was closed for four months due to the Covid-19 pandemic and there was no way in which the Revision Petitioners could have filed their version. No prejudice would be caused to the complainants by accepting the written version of the Revision Petitioners. It is also contended that, it is necessary to insist that, as far as possible, all cases are considered and disposed of on the merits. On the above grounds the counsel seeks interference with the order under Revision.

7. Per contra, the counsel for respondents 1 and 2 opposes the contentions put forward by the counsel for the Revision Petitioners. According to the learned counsel, this is a case in which the Revision Petitioners were absolutely negligent in filing their written version. They were granted sufficient time to file their version. But, they were trying to drag on the matter somehow or other. According to the learned counsel, the dictum in New India Assurance Company Ltd. VS. Hilli Multi-Purpose Cold Storage Pvt. Ltd. (supra) squarely applies to the facts of the present case. It is following the said decision that the order under Revision was passed. Therefore it is contended that there are no grounds to interfere with the order under challenge. The learned counsel places reliance on another judgement of the Apex Court dated 18.09.2020 in Civil Appeal No.3007-3008/2020 (Sagufa Ahmed & others VS Upper Assam Plywood Products Ltd.) in support of his contentions. He contends that no extension of time could be granted to the Revision Petitioners as sought for by the counsel. Reliance is also placed on the order of the Apex Court dated 11.02.2021 in Special Leave to appeal (Civil) No.1240/2021 (Daddy’s Builders Pvt. Ltd. & another VS Manisha Bhargava & another) to contend that the direction regarding prospective operation of the Constitution Bench decision does not have the effect of pegging the dictum to the date of the judgement. On the above grounds the counsel seeks dismissal of the Revision Petition.

8. We have heard the respective counsel elaborately. We have also considered the contentions advanced before us anxiously. We notice that there is no dispute regarding the chronology of events reproduced by us, above. Though notice was accepted by the Revision Petitioners in December 2019, they had not filed their version within the period of 30 days prescribed by the statute for the purpose. On 23.01.2020 the District Commission directed the Revision Petitioners to file their version within 30 days and posted the case to 16.03.2020. The stipulated period expired on 23.02.2020. The District Commission had the discretion in appropriate cases to extend the time limit by 15 days. The said period also expired before 16.03.2020, the date to which the case stood posted. On the said date also no version was filed. Version was finally filed only on 25.09.2020.

9. Sub-section (3) of Section 38 of the Consumer Protection Act, 2019 (hereinafter referred to as the Act for short) reads as follows:

The District Commission shall, if the complaint admitted by it under sub-section (2) of section 36 relates to goods in respect of which the procedure specified in sub-section (2) 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 Commission;

b. if the opposite party, on receipt of a copy of the complaint, referred to him under clause (a) denies or disputes the allegations contained in the complaint, or omits or fails to take any action to represent his case within the time given by the District Commission, it shall proceed to settle the consumer dispute-

i. on the basis of evidence brought to its notice by the complainant and the opposite party, if the opposite party denies or disputes the allegations contained in the complaint, or

ii. ex parte on the basis of evidence brought to its notice by the complainant, where the opposite party omits or fails to take any action to represent his case within the time given by this Commission;

c. decide the complaint on merits if the complainant fails to appear on the date of hearing.

10. There was a difference in judicial opinion on the question as to whether an extension of the time limit stipulated by the above provision could be granted by the District Commission, in appropriate cases. The matter was therefore referred to the Constitution Bench of the Supreme Court for the purpose of settling the position of law. It was accordingly that the question was considered in New India Assurance Company Ltd. VS. Hilli Multi-Purpose Cold Storage Pvt. Ltd. (supra) by the Constitution Bench. After consideration of the various decisions on the point as well as similar provisions in other statutes, the Bench came to the conclusion that the time limit prescribed in the Act was mandatory and not directory as contended by the parties. The Constitution Bench found that in many other provisions, a power for extension of the time limit had been granted by the legislature but that, in the case of filing version no such power has been granted. The Apex Court has concluded the issue in paragraphs 20 and 21 of the judgement which are reproduced below:

20. The legislature in its wisdom has provided for filing of complaint or appeals beyond the period sufficient under the relevant provisions of the Act and Regulations, if there is sufficient cause given by the party, which has to be to the satisfaction of the authority concerned. No such discretion has been provided for under Section 13(2)(a) of the Consumer Protection Act for filing a response to the complaint beyond the extended period of 45 days (30 days plus 15 days). Had the legislature not wanted to make such provision mandatory but only directory, the provision for further extension of the period for filing the response beyond 45 days would have been provided, as has been provided for in the cases of filing the complaint and appeals. To carve out an exception in a specific provision of the statute is not within the jurisdiction of the courts, and if it is so done, it would amount to legislating or inserting a provision into the statute, which is not permissible.

21. By specifically enacting a provision under sub-section (3) of Section 13, with a specific clarification that violation of the principles of natural justice shall not be called in question where the procedure prescribed under sub-sections (1) and (2) of Section 13 of the Consumer Protection Act has been followed or complied with, the intention of the legislature is clear that mere denial of further extension of time for filing the response (by the opposite party) would not amount to denial or violation of the principles of natural justice. This provision of Section 13(3) reinforces the time-limit specified in Section 13(2)(a) of the Act.

It has been noticed by the Court, that the time limit has been ordered to be scrupulously observed for the purpose of achieving the objective of speedy disposal of consumer complaints. The procedure to be followed by the District Commissions in cases where version has not been filed is to proceed to settle the dispute exparte on the basis of the evidence brought to its notice by the complainant. In conclusion the Apex Court has answered the reference made to it in paragraph 62 of the judgement which reads as follows:

62. To conclude, we hold that our answer to the first question is that the District Forum has no power to extend the time for filing the response to the complaint beyond the period of 15 days in addition to 30 days as is envisaged under Section 13 of the Consumer Protection Act; and the answer to the second question is that the commencing point of limitation of 30 days under Section 13 of the Consumer Protection Act would be from the date of receipt of the notice accompanied with the complaint by the opposite party, and not mere receipt of the notice of the complaint.

11. In paragraph 63, it has been ordered that the judgement was to operate only prospectively. It is relying upon the order regarding prospective operation of the judgement that the counsel for the Revision Petitioners has advanced a contention that the judgment of the Constitution Bench would have application only from 04.03.2020, on which date it was pronounced. However, even if it is assumed that the judgement would apply only from 04.03.2020, that would be of no help to the Revision Petitioners. This is for the reason that, they had not filed their version on 04.03.2020. Their version was filed only on 25.09.2020.

12. The scope of prospective operation of the Constitution Bench decision was considered by a two Judge Bench of the Apex Court in the case of M/s Daddy’s Builders Pvt. Ltd. & another VS. Manisha Bhargava & another (supra). In the said case, a petition seeking condonation of delay in filing the written version to a consumer complaint was dismissed by the Karnataka State Consumer Disputes Redressal Commission. In the said case, it was contended that the decision of the Constitution Bench in New India Assurance Company Ltd. VS. Hilli Multi-Purpose Cold Storage Pvt. Ltd. (supra) would not apply to complaints filed before the said decision. The said contention was rejected by the Court in the following words:

However, the aforesaid cannot be accepted. It is required to be noted that as per the decision of this Court in the case of J.J. Merchant v. Shrinath Chaturvedi, reported in (2002)6 SCC 635, which was a three Judge Bench decision, consumer fora has no power to extend the time for filing a reply/written statement beyond the period prescribed under the Act. However, thereafter, despite the above three Judge Bench decision, a contrary view was taken by a two Judge Bench and therefore the matter was referred to the five Judge Bench and the Constitution Bench has reiterated the view taken in the case of J.J. Merchant (supra) and has again reiterated that the consumer fora has no power and /or jurisdiction to accept the written statement beyond the statutory period prescribed under the Act, i.e., 45 days in all. However, it was found that in view of the order passed by this Court in Reliance General Insurance Co. Ltd. (supra) dated 10.02.2017, pending the decision of the larger Bench, in some of the cases, the State Commission might have condoned the delay in filing the written statement filed beyond the stipulated time of 45 days and all those orders condoning the delay and accepting the written statements shall not be affected, this Court observed in paragraph 63 that the decision of the Constitution Bench shall be applicable prospectively. We say so because one of us was a party to the said decision of the Constitution Bench.

13. In view of the above authoritative interpretation of the scope of the prospective operation contemplated by the Constitution Bench decision, the contentions of the counsel for the Revision Petitioners are only to be rejected. We do so.

14. The last contention put forward is on the basis of the spread of the Covid 19 Pandemic, that gripped the country during the relevant period. In Suo Moto Writ Petition (Civil) No.3 of 2020 the Apex Court has ordered as follows:

“This Court has taken Suo Motu cognizance of the situation arising out of the challenge faced by the country on account of Covid-19 Virus and resultant difficulties that may be faced by litigants across the country in filing their petitions/applications/suits/appeals/all other proceedings within the period of limitation prescribed under the general law of limitation or under Special Laws (both Central and/or State).

To obviate such difficulties and to ensure that lawyers/litigants do not have to come physically to file such proceedings in respective Courts/Tribunals across the country including this Court. It is hereby ordered that a period of limitation in all such proceedings, irrespective of the limitation prescribed under the general law or Special Laws whether condonable or not shall stand extended w.e.f. 15th March 2020 till further order/s to be passed by this Court in present proceedings.

(Emphasis supplied)

15. According to the learned counsel for the Revision Petitioners, it is necessary to extend the benefit of the above order to them and the time limit for filing their version has to be extended.

16. The ambit of the above order of the Supreme Court was considered by a three Judge Bench of the Apex Court in the case of Sagufa Ahmed & others VS. Upper Assam Plywood Products Ltd. & others (supra). It has been held in the said decision that what was extended by the above order of the Apex Court was only the period of limitation and not the period upto which delay can be condoned in exercise of the discretion conferred b

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y the statute. Paragraph 19 of the said judgement, relevant in the context reads as follows: 19. But we do not think that the appellants can take refuge under the above order. What was extended by the above order of this Court was only “the period of limitation” and not the discretion conferred by the statute. The above order passed by this Court was intended to benefit vigilant litigants who were prevented due to the pandemic and the lockdown, from initiating proceedings within the period of limitation prescribed by general or special law. It is needless to point out that the law of limitation finds its root in two latin maxims, one of which is Vigilantibus Non Dormientibus Jura Subveniunt which means the law will assist only those who are vigilant about their rights and not those who sleep over them. 17. Applying the above dicta to the fact situation of the present case it is clear that the Revision Petitioners were not vigilant in complying with the prescribed time limit for filing their version. As already noticed above, the 30 days time limit for filing their version expired in February 2020. They did not file their version within that time. Nor did they apply for the extension of time limit by 15 days. Therefore, no extension of the time limit was granted to them. Consequently, when the restrictions imposed by the spread of the pandemic, Covid-19 came into effect, they had no subsisting right available to file their version. Since the time limit of the Revision Petitioners for filing version had already expired nothing survived for extension on the basis of the order passed by the Supreme Court in suo moto case. 18. The above being the position, contentions of the Revision Petitioners are rejected. 19. For the foregoing reasons, the Revision Petition fails and is accordingly dismissed. No order as to costs.
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