Madhya Pradesh

StateCommission

RP/19/166

AXIS MUTUAL FUND - Complainant(s)

Versus

DR.PURSHOTTAM NAMA - Opp.Party(s)

03 Sep 2020

ORDER

M. P. STATE CONSUMER DISPUTES REDRESSAL COMMISSION, BHOPAL

PLOT NO.76, ARERA HILLS, BHOPAL

 

                              REVISION PETITION NO. 166 OF 2019

(Arising out of order dated 20.08.2019 passed in C.C.No.578/2018 by the District Forum, Jabalpur)   

 

AXIS MUTUAL FUND

THROUGH AUTHORISED OFFICER,

AXIS ASSET MANAGEMENT CO.LTD.

AXIS HOUSE, FIRST FLOOR, C-2,

WADIA INTERNATIONAL CENTRE,

PANDURANG BUDHKAR MARG, WORLI,

MUMBAI-400 025                                                                                                     …          PETITIONER.

 

Versus

 

DR. PUROSHATTAM NEMA,

S/O LATE SHRI HARPRASAD NEMA,

R/O 37, DAYA NAGAR, YADAV COLONY,

JABALPUR (M.P.)                                                                                                   ….          RESPONDENT.                                                                      

 

BEFORE:

                  HON’BLE SHRI JUSTICE SHANTANU S. KEMKAR     :    PRESIDENT

                  HON’BLE SHRI S. S. BANSAL                                      :    MEMBER    

                 

COUNSEL FOR PARTIES :

      Shri Ajay Dubey, learned counsel for the petitioner

      None for the respondent.

                                                                   

                                                            O R D E R

                                       (Passed On 03.09.2020)

                   The following order of the Commission was delivered by Justice Shantanu S. Kemkar, President:

 

                   This revision petition is directed against the order dated 20.08.2019 passed by the District Consumer Disputes Redressal Commission, Jabalpur (For short District Commission) in C.C.No.578/2018 whereby the District Commission has proceeded ex-parte against the petitioner/opposite party as the petitioner remained absent on the said date and failed to file reply even after grant of sufficient opportunities for the same.

2.                     Learned counsel for petitioner argued that petitioner’s office is situated at Worli, Mumbai and there was bereavement in the family of Advocate appointed by the petitioner and his junior counsel who was to before the District Commission could not appear and failed to file reply as he wrongly noted the date.

3.                     Having heard learned counsel for the petitioner and having gone through the proceedings of the District Commission we find that the notice of the complaint was duly served on petitioner/opposite party before 10.12.2018. As per

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the record of the District Commission on 10.12.2018 counsel for petitioner appeared before the District Commission and filed vakalatnama.  He sought time to file reply. The District Commission fixed the matter for filing reply on 11.01.2019. On that date and thereafter again on 21.02.2019 time was sought for filing reply.  The District Commission on 21.02.2019 granted last opportunity to file reply.  Thereafter also time was sought on various occasions including on 09.04.2019, 24.05.2019, and on 24.06.2019 but no reply was filed and thereafter on 20.08.2019 the impugned order was passed.  In the circumstances, it is clear that even after lapse of more than 45 days from the date of service of notice of complaint the petitioner/opposite party did not file reply of the complaint.

4.                     Learned counsel for the petitioner has placed reliance on the order dated 11.2.2016 passed by the Supreme Court in the case of M/s Bhasin Infotech and Infrastructure Pvt. Ltd. Vs. M/s Grand Venezia Buyers Association, Civil Appeal Nos.1083 – 1084 / 2016 as also order dated 10.2.2017 passed by the Supreme Court in the case of Reliance General Insurance Co. Ltd. & Anr. Vs. M/s Mampee Timbers and Hardwares Pvt. Ltd. & Anr., and the various judgments passed by the National Commission and this Commission to contend that the delay being bonafide may be condoned by imposing a reasonable costs.

5.                     It has been stated by Shri Ajay Dubey, learned counsel for the petitioner that there was sufficient and bonafide cause as explained in the revision petition for not filing the reply within the stipulated period and as such in view of the liberty granted in the aforesaid case, by condoning the delay on a reasonable cost the reply be ordered to be taken on record by the District Commission.

6.                     In order to appreciate the contentions of learned counsel for the petitioner we have gone through the said orders of the Supreme Court.  The relevant observations made by the Supreme Court while making the reference to larger bench of it and the directions issued in M/s Bhasin Infotech and Infrastructure Pvt. Ltd. (supra) are extracted below for ready reference :-

 

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“Since the question that falls for determination here often arises before the Consumer Fora and Commissions all over the country it will be more appropriate if the conflict is resolved by an authoritative judgment.  Further since the conflict is between Benches comprising three Judges we deem it fit to refer these appeals to a five-Judge Bench to resolve the conflict once and for all.”

 

                        The Supreme Court further directed during the pendency of reference before it as under :

“The proper course in our opinion is to permit the appellant-company to file its response, which was delayed by just about one day.  We accordingly permit the appellant to file its reply before the National Commission within two weeks from today subject to payment of Rs.50,000/- as costs to be paid to the opposite party.  The Commission can upon deposit of costs proceed with the trial of the complainant on merits after receiving the reply filed by the respondent.”

 

7.                     Thereafter, the Supreme Court in Reliance General Insurance Co. Ltd. and Anr. (supra) taking note of the reference order and directions issued in M/s Bhasin’s case observed thus :

“We consider it appropriate to direct that pending decision of the larger bench, it will be open to the concerned Fora to accept the written statement filed beyond the stipulated time of 45 days in an appropriate case, on suitable terms, including the payment of costs and to proceed with the matter.”

 

8.                     When the matter stood thus, in view of the aforesaid directions of the Supreme Court in the case of M/s Bhasin Infotech and Infrastructure Pvt. Ltd. Vs. M/s Grand Venezia Buyers Association, and Reliance General Insurance Co. Ltd. & Anr. Vs. M/s Mampee Timbers and Hardwares Pvt. Ltd. & Anr., the National Commission and this Commission decided various matters by allowing written statement which was sought to be filed beyond the prescribed period to be

 

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taken on record, in appropriate cases, on suitable terms, including the payment of costs.

9.                     However, now on 4.3.2020 the legal position has been settled by the Constitution Bench of the Supreme Court while deciding the said reference made in batch of Civil Appeals including Civil Appeal No.10941 – 10942 / 2013 New India Assurance Co. Ltd. versus Hilli Multipurpose Cold Storage Pvt. Ltd.    The Supreme Court approved the view taken by it in the case of Dr. J. J. Merchant & Others Vs. Shrinath Chaturvedi, (2002) 6 SCC 635 and observed as under :-

“In the said case of Dr. J. J. Merchant (supra), while holding that the time limit prescribed would be mandatory and thus be required to be strictly adhered to, this Court also considered the Statement of Objects and Reasons of the Consumer Protection (Amendment) Bill, 2002 (which was subsequently enacted as Act 62 of 2002 and has come in force w.e.f. 15.03.2003).  The salient features of the same was to provide simple, inexpensive and speedy justice to the consumers, and that the disposal of cases is to be faster and after noticing that several bottlenecks and shortcomings have also come to light in the implementation of various provisions of the Act and with a view to achieve quicker disposal of consumer complaints, certain amendments were made in the Act, which included (iii) prescribing the period within which complaints are to be admitted, notices are to be issued to opposite party and complaints are to

be decided.  With this object in mind, in sub-section (2)(b)(ii) of Section 13, the opening sentence on the basis of evidence has been substituted by ex-parte on the basis of evidence.  By this amendment, consequences of not filing the response to the complaint within the specified limit of 45 days was to be that the District Forum shall proceed to settle the consumer dispute ex-parte on the basis of evidence brought to its notice by the complainant, where the opposite party omits or fails to take action to represent his case within time.  For achieving the objective of quick disposal of complaints, the Court noticed that sub-section (3A) of Section 13 was inserted, providing that the complaint should be heard as expeditiously as possible and that endeavour should be made to normally decide the complaint within 3 months, and within 5 months where analysis or testing of commodities was required.  The Provisos to the said sub-section required that no adjournment should be ordinarily  granted and if granted, it should be for sufficient cause to be recorded in writing and on imposition of cost, and if the complaint could

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not be decided within the specified period, reasons for the same were to be recorded at the time of disposing of the complaint.

It was after observing so, and considering aforesaid amendments, this Court held that the time limit of 30 plus 15 days in filing the response to the complaint, be mandatory and strictly adhered to.”    

 

            The  reference was then answered on 4.3.2020 by concluding in paragraph 41 as under :-

            “41.  To conclude, we hold that our answer to the first question is 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 is envisaged under Section 13 of the Consumer Protection Act; and that the commencing point of limitation of 30 days under Section 13 of the Consumer Protection Act would be from the date of receipt of the notice accompanied with the complaint by the opposite party, and not mere receipt of the notice of the complaint.”

 

10.                   Thus, when the reference has been finally answered on 4.3.2020 by the Supreme Court in above terms, the relief in terms of the orders passed by the Supreme Court in the case of M/s Bhasin Infotech and Infrastructure Pvt. Ltd. and Reliance General Insurance Company extracted above which were only issued as an interim arrangement pending decision on the said reference and the said appeals, cannot be now granted so as to permit filing of the reply beyond 15 days in addition to 30 days as provided under Section 13 of the Act of 1986.

 

11.                   Therefore in view of the aforesaid authoritative pronouncement of the Supreme Court made on 4.3.2020 in the case of New India Assurance Co. Ltd. Versus Hilli Multipurpose Cold Storage Pvt. Ltd. (supra) in our considered view, the time limit of 30 plus 15 days in filing the response to the complaint, being mandatory the same has to be strictly adhered to.  The District Commission had no power to extend the time for filing reply to complaint beyond 15 days in addition to 30 days from the date of service of notice of complaint with copy as held in the said reference and as envisaged under Section 13 of the Act of 1986. 

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12.                   Thus, we find no error in the impugned order passed by the District Commission so as to invoke our jurisdiction under Section 17 (1) (b) of the Act of 1986.  As a result, the revision petition failsand is hereby dismissed. 

 

13.                   No order as to the costs.