HON’BLE MR. JUSTICE MANOJIT MANDAL, PRESIDENT
- This revision petition under section 47(1)(b) of the Consumer Protection Act, 2019 ( in short, ‘the Act’) has been filed against the order No. 11 dated 21/10/2024 passed by the Learned District Consumer Disputes Redressal Commission, Kolkata, Unit-II (Central) (in short, ‘the District Commission’) in connection with M.A. application being No. 227/2024 arising out of complaint case No. CC/292/2023 whereby the Learned District Commission was pleased to reject the M.A. application filed by the opposite parties.
- The respondent as a complainant filed a complaint case before the Learned District Commission praying for the following reliefs :-
“a) Show cause opposite party for the acts of negligence and gross deficiency of services;
b) Order opposite party to pay Rs.1,77,350/- (due from opposite party) to your petitioner;
c) Order opposite party to pay interest @12% p.a. for default in payment to till the date of realisation;
d) Order opposite party to pay a damages of Rs.3,50,000/- only for causing mental agony and harassment to your petitioner;
e) Order opposite party to pay a litigation cost of Rs.25,000/-;
f) Injunction, interim reliefs or Attachment before Judgment, if any required any time;
g) Pass such other order / orders as your Honour may deem fit and proper for the ends of justice.”
3. Notices were duly issued upon the opposite parties and notices were duly served upon the opposite parties vide order No. 4 dated 11/01/2024. Since the opposite parties did not turn up before this Commission on 11/01/2024, the Learned District Commission was pleased to fix a date for filing written version within the stipulated period. Within the stipulated period of 45 days the opposite parties did not turn up and did not file written version. After expiry of the stipulated period the opposite parties appeared and filed the application for vacating the order No. 6 dated 11/03/2024. The order No. 6 dated 11/03/2024 is reproduced as under :-
“Ld. Advocate for the complainant is present. OPs have not entered appearance. No WV has been filed by the OPs to contest the case. Stipulated period for filing WV by the OPs has already been elapsed and as such the case do proceed ex parte against the OPs.
Fix 13.05.2024 for ex parte hearing of the case. Complainant to file E/chief on that date. BWA as per CP regulation.”
- After hearing both sides the Learned District Commission was pleased to reject the said application by the order impugned.
- Being aggrieved by and dissatisfied with the said order the revisionists have preferred this revisional application.
- Heard Learned Advocate appearing for the revisionists. Perused the record including the memo of revisional application and the impugned order.
- Having heard the Learned Advocate appearing for the parties and on perusal of the record it appears to me that the revisionists have prayed for setting aside the order No. 6 dated 11/03/2024 only. It also appears to me that the revisionists / petitioners have not challenged the order No. 4 dated 11/01/2024 by which the Learned District Commission was pleased to hold that service of notice upon the opposite parties tantamount to good service. As such, the Learned District Commission was pleased to fix the date for filing written version by the opposite parties within the stipulated period. The revisionists / petitioners have not challenged the service of notice upon the opposite parties which was passed vide order No. 4 dated 11/01/2024. Since the said order No. 4 dated 11/01/2024 have not been set aside, vacated or modified by any higher forum, the said order is still in force.
- The opposite parties have nowhere stated in the M.A. application about the date on while they came to know about filing of the instant consumer case against them through website. Therefore, they came to know about the instant consumer case from the website is not believable and acceptable.
- In the issue of filing written version the 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”.
11. 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.
12. 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.
13. 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.”
14. In this case, I find that the complainant / opposite party filed the petition of complaint under section 12 of the Consumer Protection Act, 1986 on 20.09.2017 and the revisionist / opposite party No. 1 entered appearance in this case by filing Vakalatnama on 02.11.2017. Since, the statutory period of 45 days had been expired from the date of appearance of the opposite party No. 1, the Learned District Commission below was pleased to reject the prayer of the revisionist / opposite party No. 1 for filing written version.
15. Under this facts and circumstances and on consideration of the above noted rulings I am of the view that the impugned order passed by the Learned District Commission is within the jurisdiction and this is not bad in law.
16. There is no scope to interfere with the impugned order.
17. Accordingly, the revisional application is dismissed in limine.
18. Considering the facts and circumstances of the case, there will be no order as to costs.
19. The Learned District Commission is directed to proceed with the complaint case and decide the same as early as possible without granting any adjournments to either of the parties.
20. Let a copy of this order be sent down to the Learned District Commission below at once.
