HON’BLE MR. JUSTICE MANOJIT MANDAL, PRESIDENT
- This appeal under section 41 of the Consumer Protection Act, 2019 ( in short, ‘the Act’) against the order dated 16/08/2024 passed by the Learned District Consumer Disputes Redressal Commission, Hooghly ( in short, ‘the District Commission’) in connection with M.A. Case No. 19/2024 arising out of complaint case No. CC/87/2023 whereby the Learned District Commission dismissed the M.A. Application filed by the appellants.
- Heard the Learned Advocate appearing for the appellants at length and in full. Perused the record, memo. of appeal, impugned order and other relevant documents.
- Having heard the Learned Advocate appearing for the appellants and on perusal of the record and the memo. of appeal it appears to me that the only issue in this appeal relates to foreclosure of rights of the opposite parties / appellants to file written version. The case of the parties, therefore, need not be discussed.
- The Learned Advocate appearing for the appellants has urged that the Learned Commission below has erred in coming to a conclusion without allowing the appellants to submit.
- He has further urged that the Learned Commission has erred in not setting aside the order dated 08/09/2023 which directed ex parte proceeding of the matter.
- He has further urged that the impugned order is bad in law and unsustainable and is liable to be set aside. In the issue of filing written version law is very categorical.
- On perusal of the record it appears to me that notices were duly served upon the opposite party Nos. 1 & 2 on 25/07/2023 and 26/07/2023 respectively. It also appears to me that opposite party Nos. 1 & 2 appeared on 08/08/2023 by filing Vakalatnama through the Advocate Mr. Koushik Das and prayed for time for filing written version. On 08/08/2023 the prayer of the opposite party Nos. 1 & 2 i.e. the appellants was considered and allowed and on 08/09/2023 was fixed for filing written version by the opposite party Nos. 1 & 2. But on 08/09/2023 the opposite party Nos. 1 & 2 appeared before the Commission and prayed for time for filing written version. As the statutory period for filing written version was over, the opportunity for filing written version by the opposite party Nos. 1 & 2 was closed vide order dated 08/09/2023. Till this date the opposite parties did not file any written version before the Learned District Commission. On 08/09/2023 the Learned District Commission was pleased to fix the matter on 09/11/2023 for ex parte hearing. In the issue of filing written version 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”.
- 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.
10. 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.
11. 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.”
12. In view of my above discussion, the impugned order passed by the Learned District Commission is within the jurisdiction and this is not bad in law. There is no scope to interfere with the impugned order.
13. Under these facts and circumstances, the appeal filed by the appellants should be dismissed.
14. In the result, the appeal be and the same is dismissed with costs of Rs.10,000/- (Rupees ten thousand only). The appellants / opposite parties are directed to deposit the costs by way of demand draft in the name of SCWF within four weeks from today. In case, the appellants fail to deposit the costs within the prescribed time period then it shall also be liable to pay interest @ 9% per annum till realization.
15. List the matter on 06/01/2025 for compliance.
16. Let a copy of this matter be sent down to the Learned District Commission below at once.
17. The Learned District Commission is directed to dispose of the case as early as possible without granting any unnecessary adjournments to either of the parties.
18. Office to comply.
