| Final Order / Judgement | Date of filing:24.04.2023 Date of Disposal:21.12.2023 BEFORE THE KARNATAKA STATE CONSUMR DISPUTES REDRESSAL COMMISSION, BENGALURU (PRINCIPAL BENCH) DATED: 21st DAY OF DECEMBER 2023 PRESENT Mr. K B SANGANNANAVAR: JUDICIAL MEMBER Mrs.M.DIVYASHREE : LADY MEMBER APPEAL NO. 763/2023 M/s Zunroof Tech Pvt. Ltd., A Private Limited Company, Incorporated under The Indian Companies Act, 1956/2013, Having its Registered Office at Tower A Paras Trinity Sector 63 Gurgaon Haryana-122001. Rep. by its Managing Director.…….. Appellant (By M/s Juris Nexus, Adv.) -Versus- Jayanth Yanukushkar, S/o Sri Yallapa H Kalal, Aged about 49 years, Residing at: No.B-10, Durga Parvathi, Ground/1st Floor, 3rd Cross Upadhyaya Layout, Nagadevanahalli, Bengaluru… ….. Respondent (By Mr.S.K.Nagaraj, Adv.) ORDER BY Mr. K. B. SANGANNANAVAR: Pri. Dist. & Session Judge (R)- JUDICIAL MEMBER: - This is an appeal filed by OP in CC/367/2022 on the file of II Additional District Consumer Disputes Redressal Commission, Bengaluru Urban District, aggrieved by the order dated 10.03.2023. (The parties to this appeal will be referred as to their rank assigned to them by the Commission below).
- The Commission examined grounds of appeal, impugned order, appeal papers and heard learned counsels. Now we have to decide whether impugned order dated 10.03.2023 does call for an interference of this Commission for the grounds set out in the appeal memo?
- At the very outset, it would be appropriate to make mention of from the file records found from order sheet in CC/367/2022, Complainant by name Jayant Y Anukushkar filed a complaint on 14.12.2022 at Principal Consumer Commission:
- The file is received by the said office on 17.12.2022 and fixed the date for hearing on 26.12.2022 for admission.
- On 26.12.2022, Commission below heard learned advocate for complainant and ordered notice to be served on OP by RPAD, returnable by 25.01.2023.
- On 25.01.2023 proceedings sheet discloses, acknowledgment not returned, while one Mr.A.P, advocate files a memo of appearance for OP and matter adjourned to 28.02.2023 for filing of vakalath and version.
- On 28.02.2023, advocate for OP files 26 documents along with version and an IA U/s 38(2)(a) of CPA, 2019 with a request to permit OP to file written version, for which learned advocate for complainant on 10.03.2023 filed objections and the Commission below heard on the said IA, and thereby proceed to pass impugned order and adjourned the matter for recording evidence. It is this order being assailed in this appeal contending that Commission below passed order rejecting the I.A. to condone the delay if any and to record Version for the circumstances explained wholly out of control of OP/appellant and the order is contrary to the facts and law.
- In order to decide on this appeal, it would be appropriate to examine the cause title as found from CC/367/2022. Complainant is one Mr.Jayant Y Anukushkar and he had furnished his residential address. He is the resident of Bengaluru City, while OP is M/s Zunroof Tech Pvt. Ltd. Company having registered office at Gurgaon of Haryana State, Represented by its Managing Director. The Commission below ordered notice to be served through RPAD returnable by 25.01.2023. As already stated at the very outset from proceedings sheet acknowledgment for having served on OP is noted as “not returned”, facts remain as found from the order sheet one Mr.AP, advocate put his memo of appearance for the OP and he undertakes to file vakalath and sought time to file version for the case of the complainant. Accordingly the Commission below adjourned the matter to 28.02.2023 for filing vakalath and version. It is to be noted herein the Commission below at the first instance itself fixed a date for filing of vakalath and version beyond the period of 30+15 days. It is to be noted herein, S.38(2)(a) of CPA, 2019, mandates to file version within 30 plus 15 days and there shall be no extension of time beyond 45 days from the date of service of the notice of the complaint. As already stated vakalath is filed by one Mr.AP, advocate along with an IA filed U/s 38(2)(a) of CPA, 2019, with a request to record version and documents filed for OPs, however the Commission below did not considered the request and proceed to rejected the IA on the ground, as version for OP is filed beyond 45 days from the date of service of the notice, which cannot be recorded.
- In view of the above circumstances, we have to decide whether Commission below is justified to pass the impugned order?
- At the very outset we have to ascertain certain facts found from record in what circumstances, time came to be over or lapsed, since learned counsel for OP/appellant would submit Commission below failed to consider Ops have made an attempt to file version along with I.A on 23.02.2023 in the office of the Commission, however, such an attempt made went in vain, as the concerned Officer of the Commission, informed him that no such procedure being followed or practiced in the office of Consumer Commissions to receive the written version and IA’s in the office. In our view if such an attempt was made on 23.02.2023 to file version along with I.A and documents, viewed from any angle it could not be said version and I.A. filed by OPs was beyond the period of time stipulated under law and if after an unsuccessful attempt was made by OPs for filing written statement along with documents, their filing of version and documents along with I.A. on 28.02.2023 before the Open Commission Hall has to be held, as if it was filed on 23.02.2023 itself and it was well within time limitation of 45 days from the date of service of notice. Even we have also been told by the Commission Office, no practice being followed to receive the version and I.As in the Office of Commissions and they have to file it before the Open Commission itself. We have to take notice of the fact in the recent years Consumer Cases are mounting up as such the office has to follow certain procedure or practice to receive in the office. In this regard we have to observe herein, the office of Commissions have to adopt certain procedure or practice to receive the version and the I.As or the documents, as the case may be, which would avoid any inconvenience or hardship caused to the advocates and the parties and this has to be done in consultation with Asst. Registrar or the Registrar as the case may be and needless to say with due approval of the Commission. The official concerned has to receive and note it down in the left side of the proceeding sheet with his sign and date and has to place it before the Asst. Registrar or Registrar as the case may be for his order and they in turn have to place it before the Presiding Officer of the Commission and in his absence before senior member for orders thereon. However, in the case on hand no such procedure being followed by the Commission resulting hereby passing impugned order contrary to the facts and law. Had the Commission could have followed minimum procedure to receive the version in the office as followed in Civil and Criminal Courts these hardship and inconvenience being caused to the parties and advocates day to day would have been avoided. In the case on hand as the Commission below failed to consider such situation, filing of the IA and Version by Ops, could not be said filed beyond 45 days from the date of service of notice.
- We are compel to observe herein, to avoid inconvenience or hardship caused to the parties and advocates in such circumstances, Commissions to fix a date for filing vakalath/versions well within the period of 45 days and if such listing is not possible to issue instructions to the officer to receive the vakalath and versions in the office within such date with due notice to the Commission. Here in the case on hand since learned counsel for appellant had made an attempt to file version and vakalath along with IA and documents in the office even before the date fixed for filing version before the Commission has to be considered as if it was filed on 23.03.2023 and not on the date as decided in the impugned order.
- In view of our discussions made above, Commission below has to be held wrong in rejecting the IA filed along with version on 28.02.2023 on the ground it was filed beyond the period of limitation. We have already held filing of version and I.A with documents as if filed on 23.02.2023, keeping in mind the ratio laid down in the case reported in (1987) 4 SCC 398 in the case between Raj Kumar Dey and Others v. Tarapada Dey and others decided by the Hon’ble Supreme Court, wherein held – Court cannot expect party to perform an impossible act. And this Judgment of the Hon’ble Apex Court was subsequently affirmed in (2006) 1 SCC 46 in the case between Shaikh Salam Haji Abdul Khayumsab v. Kumar and others. Thus, the ratio laid down in these two decisions on facts of the case on hand has to held directly bearing on the point in dispute and they are binding on the Commission is being followed to hold that the version and I.A along with documents were filed on the date when an unsuccessful attempt was made to file it in the office of Commission. As already stated above the Commission fixed the date for filing of the version before the Commission beyond 45 days and failed to incorporate certain procedure to receive version and I.As in the office is nothing but an impossible act to perform, which Commission cannot expect as such impugned order does call for an interference of the Commission. Hence proceed to allow the appeal. Consequently, set aside the order dated 10.03.2023 passed by II Additional District Consumer Disputes Redressal Commission, Bengaluru Urban District in CC/367/2022 and as a result directed Commission below to record the version filed by OP along with IA as if it was filed on 23.02.2023 and allow parties to submit their affidavit evidence and documents if any to proceed with the enquiry to decide on the Consumer Complaint in accordance with law.
- Send a copy of this Order to the District Commission and parties to the appeal.
Lady Member Judicial Member *GGH* | |
