Sh. Vishal Singal, Counsel for applicant/complainant Sh. Gautam Goyal, Vice Counsel for Sh. Vivek Gupta, Counsel for OPs 1 to 6. Sh. Nikunj Dhawan, Counsel for OPs 7 to 8. |
- This order shall dispose of an application under Section 38 (8) and 38 (3) of the Consumer Protection Act, 2019 (hereinafter referred to as “2019 Act”) for striking off the defence of OPs.
- It transpires from the averments made in the application that notice was issued to the OPs and they were properly represented through their counsel who filed their respective Power of Attorney/vakalatnama on 21.4.2022. It is further averred that as the OPs have failed to file their written version within the prescribed period from the receipt of notice, as mandated under the 2019 Act, the written versions filed by the OPs after the prescribed period, are required to be taken off the record by striking off the defence of the OPs in view of the several judgments passed by the Hon’ble Apex Court. Prayer has been made that the defence of the OPs be struck off and their written version be rejected and taken off the record.
- The application is resisted by the OPs by filing their separate written replies.
- In their written reply, OPs 1 to 6 took preliminary objections of maintainability, locus standi and estoppel. On merits, alleged that in fact when it was brought to the notice of the Commission that the copies of the consumer complaint were not supplied to the answering OPs, time was granted for filing of written version and accordingly the answering OPs have filed their written version after the computation of the period extended by the Hon’ble Apex Court vide order dated 10.1.2022 in which it was held that in cases where the limitation would have expired during the period between 15.3.2020 to 28.2.2022, all persons shall have a limitation period of 90 days from 1.3.2022 and in this manner, the written version filed by the answering OPs was very much within time. The application of the complainant being false and frivolous be dismissed with costs.
- In their written reply, OPs 7 & 8 have also taken the same defence as taken by OPs 1 to 6 by alleging that as per the order dated 10.1.2022 passed by the Hon’ble Apex Court, the answering OPs have filed the written version within the prescribed period and the same was not filed beyond the prescribed period. The application of the complainant being false and frivolous be dismissed with costs.
- We have heard the learned counsel for the parties and gone through the record carefully.
- The instant application filed by the complainant is resisted by all the OPs on the ground that OPs have filed their written versions within the prescribed period as the prescribed period is to be calculated in the light of order dated 10.1.2022 passed by the Hon’ble Apex Court in Suo Motu Writ Petition (C) No.3 of 2020, copy of which is annexed as Annexure R-I with the application, and relevant portion of same is reproduced as under:-
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- The order dated 23.03.2020 is restored and in continuation of the subsequent orders dated 08.03.2021, 27.04.2021 and 23.09.2021, it is directed that the period from 15.03.2020 till 28.02.2022 shall stand excluded for the purposes of limitation as may be prescribed under any general or special laws in respect of all judicial or quasi judicial proceedings.
- Consequently, the balance period of limitation remaining as on 03.10.2021, if any, shall become available with effect from 01.03.2022.
- In cases where the limitation would have expired during the period between 15.03.2020 till 28.02.2022, notwithstanding the actual balance period of limitation remaining, all persons shall have a limitation period of 90 days from 01.03.2022. In the event the actual balance period of limitation remaining, with effect from 01.03.2022 is greater than 90 days, that longer period shall apply.
- It is further clarified that the period from 15.03.2020 till 28.02.2022 shall also stand excluded in computing the periods prescribed under Sections 23 (4) and 29A of the Arbitration and Conciliation Act, 1996, Section 12A of the Commercial Courts Act, 2015 and provisos (b) and (c) of Section 138 of the Negotiable Instruments Act, 1881 and any other laws, which prescribe period(s)of limitation for instituting proceedings, outer limits (within which the court or tribunal can condone delay) and termination of proceedings.”
- It is an admitted case of the parties that the OPs appeared before this Commission for the first time on 21.4.2022 when they were represented through their respective counsels. At that time, OPs 1 to 6 had not asked for supply of copy of the consumer complaint; rather it is only on 1.6.2022 when their counsel moved an application for supply of copy of complaint and other documents filed by the complainant.
- It is further an admitted case of the parties that OPs 7 to 8 have filed their written version before this Commission on 9.6.2022 when it was received through registry whereas OPs 1 to 6 have filed their written version on 10.8.2022. Even if the limitation is calculated in the light of the order dated 10.1.2022 passed by the Hon’ble Apex Court, it is clear that both sets of OPs have filed their respective written versions beyond the prescribed period.
- As per the order passed by the Hon’ble Apex Court, through which the period of limitation was extended suo motu for 90 days from 1.3.2022, which ultimately expired on 31.5.2022, as it has come on record that OPs 1 to 6 have filed their written version on 10.8.2022 and OPs 7 & 8 have filed their written version on 9.6.2022, it is clear that firstly OPs have failed to file their written version within the prescribed period provided under the 2019 Act and also have failed to file the same within 90 days from 1.3.2022 which was the maximum period extended by the Hon’ble Apex Court.
- In the light of above discussion, the application of the applicant/complainant deserves to be allowed and the same is accordingly allowed and the written versions filed by both sets of OPs are ordered to be taken off the record. The application be tagged with the main file.
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