Chandigarh

StateCommission

RP/20/2023

SONY INDIA PRIVATE LIMITED - Complainant(s)

Versus

FLIPKART PRIVATE LIMITED - Opp.Party(s)

VIKRANT SHARMA ADV.

06 Jun 2023

ORDER

STATE CONSUMER DISPUTES REDRESSAL COMMISSION, U.T. CHANDIGARH

[ADDITIONAL BENCH]

============

Revision Petition No.	:	RP/20/2023
Date  of  Institution	:	16/05/2023
Date   of   Decision	:	06/06/2023

 

 

 

 

 

Sony India Private Limited, A-18, Mohan Cooperatives, Industrial Estate, Mathura Road, New Delhi - 110044. 

 

…… Petitioner

 

V E R S U S

 

1.   Flipkart Private Limited, Office at Nahar Industrial Enterprises, Focal Point, Plot No.B-3, B-4 and A-4, Ludhiana (Punjab) – 141010.

 

2.   Flipkart Internet Private Limited, Office at Vaishnavi Summit, No.6/B, 7^th Main, 80 Feet Road, 3^rd Block, Koramangala, Bangalore - 560034.

 

3.   Damson Technologies Private Limited, Office at 301/302, Solitaire Building, 11/12 Sunrise Park, Near Himalaya Mall Vastrapur, Link Road, Bodakdev, Ahemdabad, Gujarat - 380054.

…… Respondents

 

BEFORE:   MRS. PADMA PANDEY       PRESIDING MEMBER

          PREETINDER SINGH        MEMBER

 

PRESENT

:

Sh. Vikrant Sharma, Advocate for the Petitioner.

 

PER PADMA PANDEY, PRESIDING MEMBER

 

 

 

This Revision Petition is filed against the order dated 20.02.2023, rendered by the District Consumer Disputes Redressal Commission-I, U.T. Chandigarh (for brevity hereinafter to be referred as the “Ld. Lower Commission”) in Consumer Complaint bearing No.CC/966/2022, whereby the Opposite Party No.4 (Petitioner herein) was ordered to be proceeded against ex-parte, in the following terms: -

“Vakalatnama, reply and evidence on behalf of OP No.1 & 2 have been filed. Copy be supplied to the counsel for Complainant.

 

OP No.3 & 4 have not turned up despite of service which has also been confirmed through track consignment report. Hence, OP No.3 & 4 are proceeded against ex-parte.

 

For filing rejoinder to the reply of OP No.1 & 2, listed for 28.04.2023.”

 

The Petitioner/Opposite Party No.4 by way of present Revision Petition, among others, inter alia, has prayed for the following relief: -

 

“The order dated 20.02.2023 passed by Ld. District Commission, Chandigarh–I may kindly be set-aside and the Petitioner be allowed to present their version of case by filing the written statement/evidence before the Ld. District Commission, in the interest of justice.”

 

 

2.     The only issue in this Revision Petition relates to initiation of ex-parte proceedings by the Ld. Lower Commission against Petitioner/ Opposite Party No.4 on its failure to appear despite due service, thereby closing the right of the Petitioner/Opposite Party No.4 to file written version. The merits of this case, therefore, need not be discussed.

 

3.     Heard the Learned Counsel for the Petitioner and carefully gone through the record with utmost care and circumspection.  

 

4.     According to section 38(3)(b)(ii) of the Consumer Protection Act, 2019,(hereinafter referred to as ‘the Act’), the District Commissions are empowered to proceed with a case ex-parte if the opposite party omits or fails to take any action to represent his case within the time given by the Commission. The words ‘omits or fails to take any action to represent his case’ have been interpreted to mean the failure to file the Written Version within 30 days from date of receipt of notice or within 15 days.

 

5.     It has been settled by a catena of judgments that the District Consumer Dispute Redressal Commissions do not have the power to set aside the ex-parte orders passed by them. The current trend to ‘overcome this difficulty’ is to file a Revision Petition before the State Consumer Dispute Redressal Commissions seeking to set aside the ex-parte orders passed by the District Commission.

 

6.     In this backdrop, the key controversy swirls around the short question, “whether the this Commission has the power to set aside an ex-parte order passed by the District Commission, thereby condoning the delay in filing the Written Version”?

 

7.     Having bestowed our anxious consideration to the matter, we are of the opinion that in the light of the material on record, answer to the question posed has to be in the negative.

 

8.     It is the case of the Petitioner that the Legal Department of Sony India Private Limited received the summons copy late from the concerned Department of the Company that handovers and receives the couriers. However, due to some confusion and lack of coordination, the said summons was received after the date i.e. 20.02.2023 when the Petitioner was already proceeded ex-parte and their right to file the written version/ evidence was also. Learned Counsel for the Petitioner argued that there was no wilful negligence or latches on the part of the Petitioner/Opposite Party No.4 in not appearing before the Ld. Lower Commission, therefore, the Counsel submits that a lenient view should be adopted in this case and a fresh chance is necessary to be given to the Petitioner/ Opposite Party No.4 to place and prove their case before the Ld. Lower Commission.

 

9.     However, we do not find any merit in the limb of argument advanced by Learned Counsel for the Petitioner. Record transpires that notice sent to the Petitioner through speed post on 23.12.2022 was duly served upon it on 26.12.2022 as per tracking report downloaded from website of India Post which showed “item delivered confirmed”. Since service through registered AD cover is a proper service, it cannot be said that the impugned order passed by the Ld. Lower Commission is against the principles of natural justice, as due opportunity was granted to the Petitioner to place and prove their case before passing the impugned order under revision.

 

10.     There has been a lot of deliberation on whether District Commission has the power to set aside its own ex-parte orders, especially after the interpretation given by the Madras High Court in B. Nagaraj Vs Green Earth Biotechnologies, 2016 SCC Online Mad 23271. This judgment held that when there is no express provision in the Act or the Rules giving the Forum, the jurisdiction to do a particular function, the Forum should be considered to be endowed with such ancillary or incidental powers as are necessary to discharge its functions for the purpose of rendering justice to the parties. The conflicts in position of law have been well solved by the Supreme Court in 2020 through its landmark judgment, New India Assurance Company Limited v. Hilli Multipurpose Cold Storage Private Limited, (2020) 5 SC 757, wherein while interpreting the scope of period of limitation for filing written statement, Hon’ble Supreme Court held as under: -

“17.  We are, therefore, of the view that the judgment delivered in the case of Dr.J.J.Merchant (supra) holds the field and therefore, we reiterate the view that the District Forum can grant a further period of 15 days to the opposite party for filing his version or reply and not beyond that.

18.  There is one more reason to follow the law laid down in the case of Dr.J.J.Merchant (supra).  Dr.J.J.Merchant (supra) was decided in 2002, whereas Kailash (supra) was decided in 2005.  As per law laid down by this Court, while deciding the case of Kailsh (supra),  this Court ought to have respected the view expressed in Dr.J.J.Merchant (supra) as the judgment delivered in the case of Dr.J.J.Merchant (supra) was earlier in point of time. The aforesaid legal position cannot be ignored by us and therefore, we are of the opinion that the view expressed in Dr.J.J.Merchant (supra) should be followed.”

    Thus, the take away from aforesaid judgment is that the time limit available for an Opposite Party to file his version is 30 days from the receipt of notice, which the District Commission is empowered to extend for a maximum period of 15 days. In other words, the District Commission has no power to condone a delay beyond a discretionary period of 15 days, in addition to the 30 days as envisaged in the Act.

11.     Hon’ble Supreme Court in “M/s Daddy’s Builders Pvt. Ltd. & Anr. Vs. Manisha Bhargava and Anr.” [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 Dr.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.     The scope of Revision under the Act is noteworthy. Even though the word ‘revision’ is not used under the Act, Section 47(1)(b) empowers the State Commission to call for records and pass orders in dispute before the District Commission if it appears to the State Commission that such District Commission has exercised a jurisdiction not vested in it by law, or has failed to exercise a jurisdiction so vested or has acted in exercise of its jurisdiction illegally or with material irregularity. When a District Commission refuses to condone the delay in filing Written Version, it executes the intent of law. Therefore, there is no exceeding exercise of jurisdiction or material irregularity. In such a case, the interference of the State Commission is not warranted.

 

13.     In light of the above, it is safe to conclude that the Revision Petition against an ex-parte order of Ld. Lower Commission is not maintainable before this Commission in light of the language and objective of the Act and the view of the Hon’ble Supreme Court. Resultantly, the Revision Petition fails and is accordingly, dismissed with no order as to cost.

 

14.     The pending application(s), if any, stand disposed off accordingly.

 

15.     Certified copies of this order be sent to the parties free of charge.

 

16.     The file be consigned to Record Room, after completion.

Pronounced

06^th June, 2023

               Sd/-

                                  (PADMA PANDEY)

PRESIDING MEMBER

 

 

Sd/-

(PREETINDER SINGH)

MEMBER

“Dutt”