1.      This order shall decide the review petition bearing No. 229 of 2013 dated nil filed by the opposite party in respect of the order dated 14.5.2013 of this Commission.  It is admitted that opposite party had received the notice on 21.1.2013 which was received by the counsel in the month of February, 2013.  No date has been mentioned.  There was no communication between the parties till middle of March, 2013.  It is explained that in the second week of March, 2013 Shri Vikram Kapoor, Advocate of the complainant was not well.  In the end of April, 2013, Shri Vikram Kapoor, advocate informed the complainant that he was unable to pursue their case due to sickness.  In the first week of May, 2013, the case was handed over to the present advocate, Shri Rishi Kapoor.  The case was fixed for further proceedings on 14.5.2013.  The written statement could not be filed.

2.      It is now prayed that this Hon’ble Court may condone the delay in the light of the judgment of the Apex Court in the case of N. Balakrishnan vs. M. Krishanmurthy, C.A. Nos. 4575-76 of 1998 @ SLP © No. 8712 – 13 of 1998) decided on 03.09.1998, Prem Lata and Ors. Vs. Rajender Soni 2006 II AD (Delhi 784 and Kailash vs. Nankhu and Ors. JT 2005(4) SC 204, Salem Advocate Bar Council, Tamil Nadu vs. UOI 2005 VI AS (S.C.) 421, Rani Kusum (Smt.) vs. Kanchan Devi & Ors. 2005 VII AD SC 192, Shaikh Salim Haji Abdul Khayumsab vs. Kumar & Ors. AIR 2006 SC 396, M/s Asahi India Glass Ltd. vs. National Insurance Co. Ltd., C.C. No. 274 OF 2011 decided on 30.11.2012 and Topline Shoes Ltd. Vs. Corporation Bank JT 2002 (5) SC 111.   The attention of the Commission is also invited towards CC No. 274 of 2011 titled as M/s ASAHI India Glass Ltd. vs. National Insurance Co. Ltd. where the National Commission had condoned the delay for filing written statement.

3.      It is argued that Dr. J. J. Merchant vs. Srinath Chaturvedi III 2002 CPJ 8(SC)  is not applicable to this case. 

4.      We see no force in these arguments.  The judgment in Dr. J. J. Merchant vs. Srinath Chaturvedi III 2002 CPJ 8(SC), is  delivered by three judges bench.  It still prevails.  It is difficult to fathom how this Commission can take a view contrary to the law laid down in the above said authority.  The authorities cited by the learned counsel for the complainant have got no application in this case.  The case of Kailash vs. Nankhu and Ors. JT 2005(4) SC 204 is also decided by a Bench of three judges but it pertains to Order 8 Rule 1 C.P.C.

5.      The case of Dr. J. J. Merchant vs. Srinath Chaturvedi III 2002 CPJ 8(SC) was also discussed in Fairgrowth Investments Ltd. vs. Custodian 2004(11) SCC 472.  In para 16, it was observed:

“16. The decision which does deal with this question is Topline Shoes Ltd. V. Corporation Bank.   The subject matter of interpretation in that case was Section 13(1)(a) of the Consumer Protection Act, 1986 which provides that a person opposing the complaint under the Act was required to file an answer to the complaint "within a period of 30 days or such extended period not exceeding fifteen days as may be granted by the District Forum".  The Court took into account the provisions of the Consumer Protection Act, 1986 and came to the conclusion that the period for extension of time "not exceeding fifteen days" was directory in nature and was an expression of "desirability in strong terms".  While expressing our reservation about the correctness of the view expressed in Topline Shoes Ltd., it is not necessary for us to expatiate  on such reservation in view of the subsequent decision of this Court in Dr. J.J. Merchant’s case by a larger Bench in which the provisions of Section 13(1)(a) of the Consumer Protection Act were also construed.  The Court categorically held that the outer period of 45 days to submit an answer of a complaint had to be adhered to strictly.   Given the view expressed by a larger Bench, it would not be appropriate for us to proceed on the opinion expressed earlier by a smaller Bench in Topline Shoes.   [See in this connection Union of India V. K.S. Subramanian].  We are therefore of the view that the period for filing an objection in Section 4(2) in the Act is a mandatory provision given the language of the Section and having regard to the objects sought to be served by the Act. 

6.      This view was taken by us in other authorities as well.

7.      In Unitech Ltd. vs. Sanjay Goyal & Ors., Civil appeal No.(s) 6042 of 2013, the Apex Court was pleased to hold:

“This appeal is directed against order dated 29.5.2013 passed by the National Consumer Disputes Redressal Commission, New Delhi in consumer complaint No. 344 of 2012.

After arguing the case for some time, Shri Abhimanyu Bhandari, learned counsel for the appellant made a request that his client may be permitted to withdraw the appeal.

The request of the learned counsel is accepted and the appeal is dismissed as withdrawn.

It is needless to say that the appellant shall have to implement the directions contained in the impugned order within the time specified therein.

A copy of this order be sent to the respondents by registered post at the address mentioned in the Memo of Appeal.

                                                                                      Sd/-

                                                                             (G. S. Singhvi)

                                                                                      Sd/-

                                                          (Sudhansu Jyoti Mukhopadhaya)”

8.      In another case i.e. Kamal Prit Palta & Anr. Vs. Vikas Rana & Ors., civil appeal No. 4806-4807 of 2013 decided on 12.7.2013, the Apex Court took the same view, which reads as under:

“Heard learned counsel for the appellants.   He submits that the National Commission should not have declined to take the written statement of the appellant on record merely for the reason of delay.  The National Commission has relied upon a judgment of three judges of this Court in Dr. J. J. Merchant and Ors. Vs. Srinath Chaturvedi reported in (2002) 6 SCC 635.  The counsel submits that he has applied for review and that review application being No. RA 216 of 2013 is also rejected.  He, however, states that the appellant is prepared to deposit half of the amount of the claim which is filed by the respondent.  In view of the death of the concerned patient, the amount claimed is one crore and sixty six lakhs.  Since there are two respondents, we permit the appellants to deposit Rs.83,00,000/- (rupees eighty three lakhs) in the National Commission before the next date of hearing, which is 19.9.2013.  The counsel states that after the amount is so deposited in the National Commission, he will apply to the National Commission for revival of the review application by filing another application for that purpose.  It will be for the National Commission thereafter to consider whether the application should be entertained or not.  It will be open to the National Commission to take appropriate decision on facts as well as in law.

                             The appeals stand disposed of.”

9.      The review petition is without merits and the same is therefore dismissed.

10.    The complaint is now fixed for 15.11.2013 for complainant’s evidence and arguments.