This order is arising out the MA being no. 30/2022 filed by the OP in the CC 169/2021 praying for recalling of the order dated 06.01.2022 passed by this Ld. Commission and giving them chance to file written version.
In the application it is stated by the applicants-OPs that the OP 1 being the developer is running its business. Due to pandemic situation on and from March 2020, the office of the OP was not working on its full strength and all the employees were not coming to the office on regular basis. During the same period several employees were suffering from Covid 19 and as per the Government directive there was mandatory home isolation and for this reason necessary steps could not be taken by the OPs. Due to such unexpected circumstances, the OPs were not in a position to file the written version on 06.01.2022. On 06.01.2022 this Ld. Commission was pleased to observe that ‘since received the notices till date, the statutory period for filing WV has already been over, hence the case will proceed exparte against the OPs’. As per the order in the suo-motu writ petition number 03/2020 passed by the Hon’ble Supreme Court it has been observed that ‘in computing the limitation period for any Suit/Appeal/Application or Proceedings, the period from 15.03.2020 till 28.02.2022 shall be excluded. Consequently, the balance period of limitation remaining as on 15.03.2020, if any, shall become available with effect from 01.03.2022.’ It has been further observed by the Hon’ble Apex Court that where ‘the limitation would expired during the period between 15.03.2020 till 28.02.2022 notwithstanding the actual balance period of limitation remaining all persons shall have limitation period of 90 days’.
In view of the above, the limitation period for filing of the written version by the OPs has not yet been over, so, the OPs be given an opportunity to file written version with a view to contest the petition of complaint. According to the OPs if this application is not allowed, the OPs will suffer irreparable loss and injury and prayer is made by the OPs for allowing this application.
The application has been contested by the Complainant by filing written objection stating that the petition of complaint was admitted on 30.07.2021 and consequently notices were served upon the OPs on 30.10.2021. In the order dated 06.01.2022, this Ld. Commission was pleased to pass an order as followed:-
‘today the Ld. Advocate for the OPs prays time for filing vokalatnama, but since receipt of the notices till date, the statutory period for filing WV has already been over, not only that in view of the order passed by the Hon’ble Supreme Court, the statutory period for filing WV has also been over. Therefore, we are not empowered to allow further date to the OPs for filing WV. Hence the case will proceed exparte against the OPs. However, the OPs will be at liberty to contest the complaint orally, not going beyond the pleadings of the complainant. The OPs will be also at liberty to file BNA along with rulings’.
On the next date ie. on 23.02.2022, the Complainant had adduced evidence along with service copy. Thereafter, the OPs will came up with the instant application for recalling/review of the order dated 06.01.2022 with malicious intention to stall the proceeding.
It is pertinent to mentioned herein that when the questioned order was passed on 06.01.2022, there was no extension of limitation by the Hon’ble Supreme Court since the said extension was ended on 2nd October, 2021 plus 90 days ie. 02.01.2022. The Hon’ble Supreme Court was pleased to extent the limitation on 15.01.2022 till 28.02.2022 and the said order was never meant to be retrospective. Moreover, it was never intended by the Hon’ble Apex Court that wrongdoer would take advantage of limitation to defraud a bonafide consumer. Admittedly, the period of limitation of 30 days to file the written version had expired on 30.11.2021 and if the Ld. Commission will exercise its Discretionary Power, then the OPs may get at best 15 days more ie. after 15.12.2021 the OPs were not in a position to file their written version. But the Ops have appeared on 23.02.2022 and filed the instant application seeking review of the order dated 06.01.2022. The Section 40 of the Consumer Protection Act, 2019 empowered the District Commission to review its own order in certain cases within 30 days of such order. But the OPs have sought for review after 47 days hence, which means the statutory violation of the Act, in seeking a review application which per se malafide in nature. According to the Complainant, the application appears to be unsustainable in the eye of Law. In the written objection that Complainant has mentioned the Judgment passed by the Hon’ble Supreme Court in the case of M/s Daddy’s Builder pvt. Ltd. and another vs. Manisha Vergava and another delivered on 11.02.2021 reported in 2021 (3) SCC 669, wherein it has been held by the Constitutional Bench of the Apex Court that ‘wherein the mandatory period was over to file written version, the Hon’ble Apex Court has not condoned any limitation what so ever.’ Therefore, the instant application seeking recall/review of the order dated 06.01.2022 filed by the OPs is wholly misconceived and lack of grounds, hence liable to be dismissed.
We have carefully perused the content of the MA being no. 30/2022 and objection thereto and heard argument at length on the said MA advanced by the Ld. Counsels for the parties. Along with the MA the OPs have annexed the order passed by the Hon’ble Supreme Court of India, Civil Original Jurisdiction, Miscellaneous Application no. 21 of 2022 in Miscellaneous Application no. 665 of 2021 in Suo Motu Writ Petition (C) no. 3 of 2020, in re: Cognizance For Extension Of Limitation with Miscellaneous Application no. 29 of 2022 in Miscellaneous Application no. 665 of 2021 in Suo Motu Writ Petition (C) no. 3 of 2020.
We have carefully perused the order passed by the Hon’ble Supreme Court. It is seen by us that the order passed by this Ld. Commission on 06.01.2022 which is under challenge by the OPs, at that point of time there was no extension of limitation by the Hon’ble Supreme Court. The extension was ended on 02.01.2022 giving 90 days in addition as per the dictum of the Hon’ble Supreme Court, but subsequently, the period was extended by the Hon’ble Supreme Court on 15.01.2022 till 28.02.2022 plus 90 days i.e. till 01.06.2022. As on the subject date ie. 06.01.2022 there was no extension order in existence, hence the Ld. Commission was pleased to pass the abovementioned order which is under challenged by the OPs. At this juncture the OPs are intending to recall or vacate the order dated 06.01.2022 based on the Section 40 of the Consumer Protection Act, 2019 it is enumerated 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 30 days of such.’
Therefore, it is crystal clear from the aforementioned Section of the CP Act, 2019 that review application shall be filed within 30 days from the date of passing of the order, which requires to be reviewed or recalled.
In the instant application the OPs have prayed for recalling of the order dated 06.01.2022 by filing an application on 23.02.2022 i.e. about 47 days from the date of passing of the questioned order. As the Section 40 does not permit the same, we are not in a position to entertain the application filed by the Ops praying for recalling of the order dated 06.01.2022. There is no such order before us that due to pandemic situation lenient view can be taken in respect of Section 40 of the CP Act. 2019. As the OPs have violated the specific Law by filing the instant application, the same cannot be allowed in the eye of Law. Consequently, it is ordered that the MA being no. 30/2022 is hereby dismissed on contest without any cost.
As the Complainant has adduced evidence on affidavit, let the matter be fixed on 20.04.2022 for hearing argument and filing BNA. The OPs can take part in the hearing argument and filing BNA along with rulings in their favour, if any.
Let plain copy of this judgment be given to the parties free of cost as per the CPR.
Dictated and corrected by
[HON'BLE MRS. Silpi Majumder]
MEMBER
