HON’BLE MR. JUSTICE MANOJIT MANDAL, PRESIDENT

1. This revision under section 47(i)(b) of the Consumer Protection Act, 2019 ( in short, ‘the Act’) has been filed against the order dated 19.02.2024 passed by the Learned District Consumer Disputes Redressal Commission, North 24 Parganas at Barasat ( in short, ‘the District Commission’) in connection with case No. CC/337/2023 whereby the Learned District Commission has been pleased to reject the written version filed by the opposite parties / revisionist Nos. 1 & 2 as the same has not been filed within the stipulated period.

2. The respondent No. 1 / complainant filed a petition of complaint praying for the following reliefs :-

“a) The opposite party No. 1 & 2 be directed to forthwith refund to your complainant an amount of Rs.9,80,000/- only together with interest accrued thereon @ 18% per annum on and from 25/03/2018.

b) The opposite parties jointly or severally be directed to forthwith make payment of an amount Rs.5,00,000/- (Rupees Five Lakhs) only to your complainant as and by way of demurrages and / or compensation on account of the hardships, mental agony and inconveniences caused to your complainant by reasons of its failure to live up to its commitments and assurances and because of gross deficiency on its part to render necessary services.

c) Costs of and / or incidental to this application be borne by the opposite parties.

d) Such further and / or other orders be passed and / or directions be given, as to this Ld. Commission may deem fit and proper.”

3. The opposite party Nos. 1 & 2 entered appearance in this case and filed the written version in support of their case. On receiving the said written version filed by the opposite party Nos. 1 & 2 / revisionists, the Learned District Commission below has been pleased to fix a date for hearing on the point of acceptance of written version filed by the opposite party Nos. 1 & 2. The Learned District Commission below did not accept the written version filed by the opposite party Nos. 1 & 2 by the order impugned.

4. Being aggrieved by and dissatisfied with the said order the revisionists / petitioners have preferred this revisional application.

5. Learned Advocate appearing for the revisionists submitted that the impugned order No. 3 dated 19.02.2024 is bad in law. He has further submitted that the Learned District Commission below acted in material irregularity by not accepting the written version filed by the revisionists. The Learned District Commission below has acted illegally. So, the impugned order should be set aside. In the issue of filing written version law is very categorical.

6. 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”.

7. 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.

8. 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.

9. 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.”

10. Moreover, it appears to me that notice of this case was duly served upon the opposite party Nos. 1 & 2 on 29.09.2023 and the opposite party Nos. 1 & 2 appeared and filed the written version in connection with the present consumer case on 04.12.2023. Therefore, it is clear that the written version has not been filed by the opposite party Nos. 1 & 2 / revisionists in time. They filed it after expiry of the statutory period. Learned Lawyer has submitted that the revisionists inspected the case records on 16.02.2024 and found that page nos. 35 to 38 were missing. Record goes to show that immediate after receiving the notice by the opposite party Nos. 1 & 2 they did not appear before the Commission and did not mention before the Commission that they have not received the pages containing serial nos. 35 to 38. So, the submission that the revisionists / petitioners did not receive the copy of the petition of complaint containing page nos. 35 to 38 is afterthought.

11. 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.

12. Under this facts and circumstances, the revisional application filed by the revisionists should be dismissed.

13. In the result, the revisional application be and the same is dismissed with cost of ₹10,000/- (Rupees ten thousand only). The revisionists / petitioners are directed to deposit the cost by way of a Demand Draft, in the name of SCWF, within four weeks from today. In case, the revisionists fail to deposit the cost within the prescribed time period, then it shall also be liable to pay interest @9% per annum till realization.

14. List the matter on 11.06.2024 for compliance.

15. Let a copy of this order be sent down to the Learned District Commission below at once.

16. The Learned District Commission is directed to dispose of the case as early as possible without granting any adjournment to either of the parties.

17. Office to comply.