West Bengal

Birbhum

MA/58/2024

Abhijit Mondal - Complainant(s)

Versus

Branch Manager, SBI, Kaijuli More Branch, - Opp.Party(s)

30 Apr 2024

ORDER

Shri Sudip Majumder- President-in-Charge.

Today is fixed for passing order in respect of the Review Application filed by the OP No. 2/Ujjivan Small Finance Bank under Section 40 of C.P. Act, 2019. This petition also dated 12/04/2023 was seen with objection by Ld. Advocate for complainant. Both parties are present through their respective Ld. Advocates. Already heard Ld. Advocates for both sides.

One Review Application has been filed by OP No. 4. The same has been registered as M.A. Case being No. 58/2024. Record is now taken up for passing order.

Perused the petition. Considered. From the content of the petition it appears that the OP No. 4 intends to state that he seeks review of the order No. 08 dated 14/03/2023 whereby an exparte order has been passed by this Commission and written version filed by the OP No. 4 has not been accepted for the error of records as the written version was duly received by conducting counsel, however the same could not be filed as the conducting counsel was ill on the date fixed.

(Page 1 of 3)

 

 

 

Ld. Advocate for the complainant raised vehement objection against this review application and submitted that the same is liable to be rejected.

Ld. Advocate for OP No. 4 cited two ruling at Para 16 and 17 of his petition in support of his application as follows:

The Secretary, Department of Horticulture, Chandigarh and Anr. Vs. Raghu Raj (AIR 2009 SC 514) and held that “Even if there is default on the part of advocate is not appearing at the time of hearing, Appellant shall not suffer injustice.”

Rafiq and Anr. v. Munshilal and Anr. (AIR 1981 SC 1400), the Hon’ble Apex Court observed, “What is the fault of the party who having done everything in his power and expected of him would suffer because of the default of his advocate. If such appeals/applications are rejected, the only one who would suffer would not be the lawyer who did not appear but the party whose interest he represented. The problem that agitates before us is whether it is proper that the party should suffer for the inaction, deliberate omission, or misdemeanor of his agent. The answer obviously is in the negative. Maybe, that he learned advocate absented himself deliberately or intentionally. However, we cannot be a party to an innocent party suffering injustice merely because his chosen advocate defaulted.”

It appears from the case record that the case has already run exparte against OP No. 4 vide order No. 08 dated 14/03/2023. Ld. Advocate for OP No. 4 filed an application dated 23/03/2023 for vacating the exparte order and also filed written version on same date. This Commission rejected the application and written version as the case has already run exparte against OP No. 4.

OP No. 4 further filed a Review Application U/S 40 of the C.P. Act, 2019 and intends to seek review of the order No. 08 dated 14/03/2023.

Our observation:

Sec. 40 of the C.P. Act, 2019 shows that “The District Commission shall have the power to review any of the order passed by it if there is an error apparent on the face of the record, either of its own motion or on an application made by any of the parties within thirty days of such order”.

So, Review Application would be allowed by this Commission if there was any type of clerical error on the face of record.

This Commission has already passed exparte order vide order No. 08 dated 14/03/2023 and there was no clerical error on the face of record. This Commission rightly ordered the same.

Hence, the Review Application filed by the OP No. 4 dated 12/04/2023. Is not application in the instant case. The ruling as cited above by the OP No. 4 is not suitable in support of the Review Application.

(Page 2 of 3)

 

 

 

 

We must strictly follow the provision as per Section 38(3)(b)(ii) of the C.P. Act, 2019.

 In New India Assurance Co. Ltd. Vs. Hilli Multipurpose cold storage Pvt. Ltd. (Civil Appeal No. 10941-10942 of 2013 and other) dated 04/03/2020, the Hon’ble Supreme Court of India stated in para 41 as “…… 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 envisaged Under Section 13 of the Consumer Protection Act”.

            In view of the above reportable judgement passed by the Hon’ble Supreme Court of India, we are not empowered to provide any further time beyond 45 days to the OP No. 4 for filing written version. It is necessary to mention that we are also not empowered to impose any cost upon the OP No. 4 for filing W/V beyond the statutory period.

It is necessary to mention that Sec.38(7) of the C.P Act,2019 shows that “ Every complaint shall be disposed of as expeditiously as possible and endeavour shall be made to decide the complaint within a period of three months from the date of receipt of notice by opposite party where the complaint does not require analysis or testing of commodities and within five months if it requires analysis or testing of commodities”

 

            It is further necessary to mention that Sec.68 of the C.P Act,2019 shows that “Every order of a District Commission or the State Commission or the National Commission, as the case may be, shall, if no appeal has been preferred against such order under the provisions of this Act, be final.”

           

            In this case if we vacate our own exparte order it will set a precedent. In that analogy, we are sorry not to accede to the prayer made by the OP No. 4 in this case. So, Review Application U/S 40 of the C.P. Act, 2019 filed by OP No. 4 is hereby rejected.

Thus the M.A. Case being No. 58/2024 is disposed of on contest without cost.

            Fix. 22/05/2024 for filing OPW if any by contesting OP member.

Copy of this order be supplied to the parties