ORDER

08.11.2024

Sh. Sanjay Kumar, President

1. An application filed on behalf of OP for condonation of delay in filing WS. It is stated by OP  that on 22.12.2023 the present case was listed for appearance of OP and proxy counsel Sh. Yakshap duly appeared before this commission and Hon’ble Commission directed OP to file WS within statutory limit but proxy counsel Sh. Yakshap failed to convey the direction to the main counsel and after some days left the office.
2. It is stated that the cardinal principle of law that words mentioned in order 8 rule 1 CPC shall not be later than 30 days does not take away power of court to accept WS beyond the time and time can be extended in exceptionally hard cases where defendant is of a higher degree to plead and satisfactorily demonstrate a valid reason for not filing WS within 30 days. It is stated that provision of order 8 rule 1 CPC is procedural in nature and handmade of justice. The OP referred the judgment of ATCOM Technoligies Ltd. Vs. Y.A. Chunawala and Co.  and Desraj Vs. Balkishan SLP Civil 6217/2019.
3. It is stated that Hon’ble Commission should take a lineant view considering the exception hardship and no litigant should suffer for the negligence or incompetency of the counsel. It is further stated that OP is willing to file WS and intends to contest the case hotly. It is stated that present application may be allowed and delay may be condoned in filing WS.
4. Ld. Counsel Sh. Kamal Kishore Yadav counsel for complainant submitted that complainant does not wish to file reply and address the oral arguments and submitted that present application is liable to be dismissed as order 8 rule 1 CPC is not applicable before this Commission. He submitted that the proceedings are conducted by this commission as per CP Act, 2019 and OP failed to file WS within statutory period and lame ground is mentioned, therefore, application is liable to be dismissed.
5. We have heard counsel for OP and perused the record.
6. As per record OP served on 03.11.2023 as per tracking report. The proxy counsel Sh. Yakshap appeared on behalf of Sh. Anil Sharma counsel for OP and requested for copy of the complaint. The copy of complaint was supplied and direction was given to file WS within statutory period from 22.12.2023. As per record WS filed on 15.03.2024 vide diary no. 492. Admittedly, after 45 days from 22.12.2023 there is a delay of 53 days beyond 30 days limitation period of filing WS. The law is well settled that provisions of CPC order 8 rule 1  is not applicable before District Consumer Dispute Redressal Commission as CP Act, 2019 is applicable. The law is well settled by Hon’ble Supreme Court in the case of M/S Daddys Builders Pvt. Ltd. vs Manisha Bhargava decided on 11 February, 2021. It is held as under:

It is required to be noted that as per the decision of this Court in the case of J.J. Merchant v. Shrinath Chaturvedi, reported in (2002) 6 SCC 635, which was a three Judge Bench decision, consumer fora has no power to extend the time for filing a reply/written statement beyond the period prescribed under the Act. However, thereafter, despite the above three Judge Bench decision, a contrary view was taken by a two Judge Bench and therefore the matter was referred to the five Judge Bench and the Constitution Bench has reiterated the view taken in the case of J.J.Merchant (supra) and has again reiterated that the consumer fora has no power and/or jurisdiction to accept the written statement beyond the statutory period prescribed under the Act, i.e., 45 days in all. However, it was found that in view of the order passed by this Court in Reliance General Insurance Co. Ltd. (supra) dated 10.02.2017, pending the decision of the larger Bench, in some of the cases, the State Commission might have condoned the delay in filing the written statement filed beyond the stipulated time of 45 days and all those orders condoning the delay and accepting the written statements shall not be affected, this Court observed in paragraph 63 that the decision of the Constitution Bench shall be applicable prospectively. We say so because one of us was a party to the said decision of the Constitution Bench.

7. Now applying the above principle in the present facts and circumstances of the case the delay beyond 45 days cannot be condoned by this commission, therefore, present application is dismissed. The WS filed by OP cannot be taken record being time barred and struck off from the record.
8.  The orders be uploaded on www.confonet.nic.in.

Announced in open Commission on  08.11.2024.

    SANJAY KUMAR                 NIPUR CHANDNA                       RAJESH

       PRESIDENT                             MEMBER                                MEMBER