HON’BLE MR. JUSTICE MANOJIT MANDAL, PRESIDENT
- This appeal under section 41 of Consumer Protection Act, 2019 ( in short, 'the Act') has been filed against the order No. 5 dated 09.01.2024 passed by the Learned District Consumer Disputes Redressal Commission, Kolkata-I (North) ( in short, 'the District Commission') in connection with M.A. application No. M.A./359/2023 arising out of complaint case being No. CC/179/2023 whereby the District Commission has been pleased to fix the date for filing ex parte affidavit in chief by the complainant. The appellant has made the following prayers:-
“a) Pass an order setting aside the impugned order of the District Commission dated 09.01.2024, and,
b) Pass an order allowing the application of the appellant, and,
c) Pass an order of the nature of punitive damages to the tune of INR 2,50,000.00 against the complainant for abusing the process of law and harassing the complainant, and,
d) Pass an order staying the District Commission proceeding until disposal of the present interim application.”
- The only issue in this appeal relates to foreclosure of rights of the appellant to file written statement.
- The case of the parties therefore, need not be discussed.
- Heard the Learned Advocate appearing for the appellant and carefully perused the record.
- Learned Advocate appearing for the appellant submitted that the impugned order No. 5 dated 09.01.2024 (Annexure 'A') is bad in law and in facts. He has further submitted that the Learned District Commission below acted in material irregularity fixing the matter ex parte against the appellant and others. The Learned District Commission below has acted illegally. So, the impugned order should be set aside.
- In the issue of filing written statement law is very categorical.
- The Hon’ble Apex Court in Rajib Hitendra Pathak and others Vs. Achyut Kashinath Karekar and another in (2011) 9 SCC 541 held that the “State Commission or District Consumer Forum have no power to set aside their own ex parte orders”. Paras 35,36,37,38 & 39 of the said judgment are relevant which are reproduced as under :-
“35. We have carefully scrutinized the provisions of the Consumer Protection Act, 1986. We have also carefully analyzed the submissions and the cases cited by the learned counsel for the parties.
36. On careful analysis of the provisions of the Act, it is abundantly clear that the Tribunals are creatures of the Statute and derive their power from the express provisions of the Statute. The District Forums and theState Commissions have not been given any power to set aside ex parte orders and power of review and the powers which have not been expressly given by the Statute cannot be exercised.
37. The legislature chose to give the National Commission power to review its ex parte orders. Before amendment, against dismissal of any case by the Commission, the consumer had to rush to this Court. The amendment in Section 22 and introduction of Section 22-A were done for the convenience of the consumers.We have carefully ascertained the legislative intention and interpreted the law accordingly.
38. In our considered opinion, the decision in Jyotsana’s case laid down the correct law and the view taken in the later decision of this Court in New India Assurance Co. Ltd. is untenable and cannot be sustained.
39. In view of the legal position, in Civil Appeal No. 4307 of 2007, the findings of the National Commission are set aside as far as it has held that the State Commission can review its own orders. After the amendment in Section 22 and introduction of Section 22A in the Act in the year 2002 by which the power of review or recall has vested with the National Commission only. However, we agree with the findings of the National Commission holding that the Complaint No. 473 of 1999 be restored to its original number for hearing in accordance with law”.
8. The same issue was also there before the Hon’ble Supreme Court in judgment of case Lucknow Development Authority Vs. Shyam Kapoor in connection with Civil Appeal No.936 of 2013 decided on 05/02/2013 wherein earlier judgment of Supreme Court passed in connection with the case namely Rajeev Hitendra Pathak’s case (Supra) was relied and it was held that “The District Forum and the State Commissions have not been given any power to set aside ex parte orders and power of review and the powers which have not been expressly given by the Statute cannot be exercised.
- The Constitutional Bench of the Hon’ble Apex Court reported in New India Assurance Co. Ltd. Vs. Hilli Multipurpose Cold Storage Pvt. Ltd., 2020 (5) SCC 757 has pronounced that the limitation period under section 13(2) 3 of the Consumer Protection Act, 1986 could not be exercised beyond the statutory prescribed period of 45 days.
- The Hon’ble Supreme Court in Daddy’s Builders Pvt. Ltd. v. Manisha Bhargava [Petition for Special Leave to Appeal (Civil) No.1240 of 2021] decided on 21.02.2021 observed as follows :-
“5. In any case, in view of the earlier decision of this Court in the case of J.J. Merchant (supra) and the subsequent authoritative decision of the Constitution Bench of this Court in the case of New India Assurance Company Limited v. Hilli Multipurpose Cold Storage Pvt. Ltd. (2020) 5 SCC 757, consumer fora has no jurisdiction and /or power to accept the written statement beyond the period of 45 days, we see no reason to interfere with the impugned order passed by the learned National Commission.
6. In view of the above and for the reasons stated hereinabove, the present special leave petition deserves to be dismissed and is accordingly dismissed.”
- Moreover, it appears to me that notice was duly served upon the appellant on 05.10.2023 and he appeared in the consumer case but deliberately and desperately not filed any written version in support of their case.
- In view of my above discussion the impugned order passed by the Learned District Commission is within the jurisdiction and is not bad in law. There is no scope to interfere with the impugned order.
- Under this facts and circumstances the appeal filed by the appellant should be dismissed.
- In the result, the appeal be and the same is dismissed with cost of Rs.5000/-. The appellant is directed to deposit the cost by way of demand draft in the name of S.C.W.F. within four weeks from today. In case, the appellant fails to deposit the cost within the prescribed period, then it shall also be liable to pay interest @ 9% per annum till realization.
- List the matter on 06.04.2024 for compliance.
- Let a copy of this order be sent down to the Learned District Commission below at once.
