Sri Subhra Sankar Bhatta, Presiding Member

The present Revision Petition (RP) has been filed by the Revisionists/Petitioners viz. 1) Sri Birendranath Gayen and 2) Mrs. Arati Gayen against the Respondents under Section 47 (1) (b) of the Consumer Protection Act, 2019 assailing the impugned order dated 08.04.2021 vide order no. 9 passed by the District Consumer Disputes Redressal Commission, Paschim Medinipur in connection with Miscellaneous Application No. MA/03/2021 arising out of consumer complaint case No. 52 of 2020 whereby the Ld. District Commission was pleased to allow the Miscellaneous Application  being MA No. 03/2021 on contest with a cost of Rs.500/-(five hundred) to be deposited in the Consumer Legal Aid Fund, Paschim Medinipur.  Ld. Commission below was further pleased to vacate the ex parte order.  Ld. Commission below was also pleased to hold that the written version filed by OP nos. 1 and 2 will be accepted after payment of cost.

Feeling aggrieved and dissatisfied with the above order of the Ld. District Commission the Revisionists/Petitioners have preferred the present Revision Petition on 19.08.2021 before this Hon`ble State Commission and sought for relief/reliefs more particularly detailed in the prayer portion of the Revision Petition.

Revisionists/Petitioners as Complainants instituted the consumer complaint case before the District Commission, Paschim Medinipur under Section 38 of the Consumer Protection Act, 1986 which was duly registered and numbered as CC/52 of 2020 against the Opposite Parties with the allegations of deficiency in service and unfair trade practices on the part of the Opposite Parties and prayed for certain reliefs and redressal. In the said complaint proceeding OP Nos. 1 and 2 filed an application on 08.04.2021 and prayed for vacating the ex parte order.  On 08.04.2021 the Ld. Commission below was pleased to allow the said Miscellaneous Application being M.A. No. 03/2021 on contest with cost of Rs.500/- to be deposited in the Consumer Legal Aid Fund, Paschim Medinipur. Ld. Commission below was further pleased to vacate the ex parte order with the direction that the W/V filed by OP No. 1 and 2 will be accepted after payment of cost.

In the Revision Petition the Revisionists/Petitioners have highlighted certain facts and point of law.  It has been candidly contended that the Ld. Commission below failed to consider that the said Miscellaneous Application is not maintainable as per Section 38(a) of the Consumer Protection Act, 2019; that the Ld. Commission below totally failed to appreciate the ratio of judgment passed by the Constitutional Bench of the Hon`ble Apex Court in the case of New India Assurance Company Limited- Vs- Hilli Multipurpose Cold Storage Private Limited reported in (2020) 5 SCC 757, subsequently followed in a Special Leave Petition being No. SLP(Civil No. 1240 of 2021) M/s. Daddy`s Builders Private Limited and Another –Vs- Manisha Bhargava and Another wherein Hon`ble Apex Court reiterated that the Consumer Fora has no jurisdiction and/ or power to accept the written statement beyond the period of 45 days and it is made clear in the said authoritative decision that the said judgment passed by the Constitutional Bench shall be applicable with prospective effect.

It has been specifically alleged that despite service of notice upon the OP Nos. 1 and 2 they did not appear before the Ld. Commission below to contest the complaint proceeding.  It has been also alleged that the OP Nos. 1 and 2 filed the Miscellaneous Application with some malafide intention after the expiry of the statutory period of 45 days for submitting W.V.  The Ld. Commission below ought to have considered the legal position as contained under Section 38(a) and (b) of the Consumer Protection Act, 2019.  Ld. Commission below committed gross miscarriage of justice and apparent error in law by holding that the OP Nos. 1 and 2 must get an opportunity to contest the complaint case by filing written version in spite of expiry of the statutory period of 45 days.  On all such grounds the Revisionists/Petitioners have prayed for allowing the present Revision Petition after setting aside the impugned order passed in the Miscellaneous Application.

The order sheet dated 09.12.2020 vide order no. 4 of the Ld. District Commission goes to show that summons were duly served upon OP Nos. 1 and 2 and consequently the next date was fixed for filing written version by OP Nos. 1 and 2.  On the next date vide order no. 5 case was proceeded ex parte against OP nos. 1 and 2 as they failed to present their written version within the stipulated period.  Subsequently, on 08.04.2021 OP nos. 1 and 2 filed one Miscellaneous Application along with the written version and prayed for vacating the ex parte order.  The said Misc. case was registered as M.A. No. 03/2021.  On the self-same day the Miscellaneous Application was taken up for hearing.  After hearing both sides the Ld. Commission below passed the impugned order on that particular day and fixed the next date for payment of cost and acceptance of W/V.

It is apparent the Ld. Commission below observed in the body of the impugned order that OP Nos. 1 and 2 appeared before the Ld. Commission below in time but failed to submit the written version within the statutory period and as such the complaint case was fixed for ex parte hearing.  It was also observed that OP nos. 1 and 2 filed their written version on that very date i.e. 08.04.2021 which shows their intention to contest the case.  Such findings of the Ld. Commission below is absolutely wrong and against the law of the land.  Undoubtedly, Ld. Commission below has no power or authority to accept the written version after the expiry of the statutory period as envisaged under the Act.  Moreover, Ld. Commission below has no power within the four corners of the Act to vacate any ex parte order invoking discretionary power. Law does not permit the District Commission to vacate any ex parte order basing upon the discretion and sentiment. The impugned order is certainly not in accordance with law.

Considering the attending circumstances and having considered the submissions of the respective Ld. Counsels for the respective parties to the Revision Petition and regard being had to the observations of the Hon`ble Apex Court we are constrained to conclude that the Ld. Commission below failed to appreciate the position of law and committed gross error and injustice by accepting the W/V after the expiry of the statutory period.  Thus, being the position we have no hesitation to hold that the Ld. Commission below is not correct and justified in the approach and ultimate conclusion. The impugned order deserves interference of this Appellate Authority.

Resultantly, the Revision Petition succeeds and the impugned order dated 08.04.2021 vide order No. 9 requires to be set aside. 

It is, therefore,

O R D E R E D

That the Revision Petition being RP No. 25/2021 be and the same is allowed on contest against the Respondents but considering the circumstances without any order as to costs.

The impugned order dated 08.04.2021 vide order no. 9 passed by the Ld. District Commission, Paschim Medinipur in Miscellaneous Application No. MA/03/2021 arising out of complaint case No. CC/52/2020 is hereby set aside.

Ld. Commission below is directed to proceed with the complaint case in accordance with law and dispose of the same as expeditiously as possible preferably within six months from the date of this order.

Revisionists/Petitioners/Complainants are directed to appear before the Ld. District Commission on 30.05.2024 for receiving further order/orders.

Interim order, if any, be vacated forthwith.

Let a copy of this order be transmitted to the Ld. Commission below at once for information and taking necessary action.

Let free copy of this order be handed over to the respective parties maintaining all the legal formalities.

Thus, the Revision Petition stands disposed of.

Note accordingly.