1. The present Revision Petition (RP) has been filed by the Petitioner against Respondent as detailed above, under section 58 1 (b) of Consumer Protection Act 2019, against the order dated 24.02.2021 and 03.08.2021 of the State Consumer Disputes Redressal Commission Uttar Pradesh (hereinafter referred to as the ‘State Commission’), in First Appeal (FA) No.303 of 2020 in which order dated 18.06.2020 of Varanasi District Consumer Disputes Redressal Commission (hereinafter referred to as District Forum ) in Consumer Complaint (CC) no. 118 of 2018 was challenged, inter alia praying for setting aside the order dated 24.02.2021 and 03.08.2021 of the State Commission. 2. Notice was issued to the Respondents on 03.12.2021. Parties filed Written Arguments/Synopsis on 11.02.2022 and 26.05.2023 respectively. 3. Brief facts of the case are narrated in the order of the State Commission, hence not stated here with a view to avoid repetition. 4. Petitioner(s) have challenged the said Order dated 24.02.2021 and 03.08.2021 of the State Commission mainly on following grounds: - Orders dated 16.06.2020, 17.06.2020 are not legal orders as the same were passed during lockdown period which is violative of provisions of Disaster Management Act, 2005 and order dated 18.06.2020 ought not have been passed without giving reasonable opportunity of hearing the Petitioner or to file its reply.
- Time given by State Commission to the Petitioner for filing reply automatically got extended in view of the orders dated 23.03.2020 and 24.04.2021 passed by Hon’ble Supreme Court in Suo Moto Writ Petition ( Civil) No. 3 of 2020 and MA No. 665 of 2021 and District Forum had no jurisdiction to pass judgment dated 18.06.2020 before expiry of period for filing reply granted by the State Commission which automatically got extended by the order of the Hon’ble Supreme Court.
- It was mandatory for the District Forum to first pass fresh order under section 13 (2) (b) (ii) for ex parte proceedings and then pass the judgment as the order dated 16.03.2020 passed by State Commission not only set aside the ex parte judgment dated 28.02.2019 but by providing opportunity to file reply also set aside the order dated 29.11.2018.
- There is no provision in the Act of 1986 which confers powers on the District forum to adjourn en block all cases listed during a period and therefore a notice by District Forum regarding en bloc adjournment of cases in the wake of Covid 19 are deemed to be orders passed separately in each cases listed between 23.03.2020 and 30.05.2020 under section 13 (3A) and 13 (3B) of the Act.
- State Commission ought to have called for the record of the case, perusal of which will show that except on 16.06.2020, present case was not shown in the cause list of respective dates and therefore, there was no notice to the petitioner or the counsel that the present case will be taken up for hearing on 17th, 18th and 27th April, 2020 and also the manner in which proceedings were conducted on 16th to 18th June, 2020 i.e in physical mode or virtual mode and as appeared from the orders, the same were conducted in physical mode despite the fact that there was restriction on the movement of the person by Govt. of UP.
- Orders passed by District Forum were passed under suspicious circumstances and as such same are required to be examined with more care and caution.
5. Heard counsels of both sides. Contentions/pleas of the parties, on various issues raised in the RP, Written Arguments, and Oral Arguments advanced during the hearing, are summed up below. 6. Counsel for the Petitioner repeated most of the points which are stated in para 4, grounds for challenging the order of the State Commission, hence the same are not being repeated here. Counsel for the Respondent argued that revisional jurisdiction of National Commission is limited and relied upon the judgment of the Hon’ble Supreme Court in Sunil Kumar Maity Vs. State Bank of India ( 2022)1 SCC 414 and that on the date when the CC was instituted, there was no express power of Review in the old Act of 1986 as held by Constitution Bench of Hon’ble Supreme Court in Garikapatti Veeraya Vs. N. Subbiah Chaudhary AIR 1957 SC 540 and power of review was available only to this Commission as held by Apex Court in Rajeev Hitendra Pathak Vs. Achyut Kashinath Karekar ( 2011) SCC 541. Counsel also relied on the judgment of Hon’ble Supreme Court in New India Assurance Vs. Hilli Multipurpose Cold Storage ( 2020) 5 SCC 757. Counsel further argued that Petitioner has not urged any ground as to why Petitioner cannot execute a sale deed in favour of Complainant. 7. We have carefully gone through the order dated 24.02.2021 of the State Commission. The State Commission, keeping in view the judgment of the Hon’ble Supreme Court in New India Assurance Co. Ltd. Vs. Hilli Multipurpose Cold Storage ( P) Ltd. (2020) 5 SCC 757 has observed as follows: “Now, it is clear that for the opposite party it is mandatory that he must file written statement within 30 days or if 15 days grace period is given by this Commission within 45 days but beyond these 45 days, written statement if filed cannot be taken on record. Now, in the light of above mentioned provision and Hon’ble Supreme Court’s judgment when the opposite party was present before the Hon’ble State Commission on 16.03.2020, it was his mandate duty to file his written statement on the first date i.e. 27.04.2020 when the case was taken up by the ld. District Commission. The District Commission fixed another date on 27.04.2020 i.e. 16.6.2020 on which date the Pairokar of the opposite party was personally present before the Court and he assured the court that written statement will be filed on the very next date but it could not be filed. Thereafter, opportunity of filing written statement has come to an end. In the absence of written statement and opposite party, the ld. District Commission has passed the judgment dated 18.6.2020 which is not against law or provision of the Consumer Protection Act, 1986. The Opposite Party is not vigilant and it did not take the opportunity of filing written statement given by the Hon’ble State Commission. Hence, in the present scenario and considering all the circumstances, we are of the view that the present appeal has no force and is liable to be dismissed.” 8. From the above, it is clear that State Commission has not gone into the merits of the case and has simply stated that in the absence of written statement of the Opposite Party, ld. District Forum has passed the judgment dated 18.06.2020 which is not against the law or provision of the Consumer Protection Act, 1986. Hon’ble Supreme Court in Cognizance for Extension of Limitation, IN RE Misc.Application No. 21 of 2022 in Misc. Application No. 665 of 2021 in Suo Motu Writ Petition ( C ) No. 3 of 2020 with Misc. Application No. 29 of 2022 in Misc. Application No. 665 of 2021 in Suo Moto WP ( C) No. 3 of 2020 decided on 10.01.2022 has observed as follows: “1. In March, 2020, this Court took Suo Motu cognizance of the difficulties that might be faced by the litigants in filing petitions / applications / suits/appeals / all other quasi proceedings within the period of limitation prescribed under the general law of limitation or under any special laws (both Central and/or State) due to the outbreak of the COVID-19 pandemic. 2. On 23.03.2020, this Court directed extension of the period of limitation in all proceedings before Courts/Tribunals including this Court w.e.f. 15.03.2020 till further orders. On 08.03.2021, the order dated 23.03.2020 was brought to an end, permitting the relaxation of period of limitation between 15.03.2020 and 14.03.2021. While doing so, it was made clear that the period of limitation would start from 15.03.2021. 3. Thereafter, due to a second surge in COVID-19 cases, the Supreme Court Advocates-on-Record Association (SCAORA) intervened in the Suo Motu proceedings by filing Miscellaneous Application No. 665 of 2021 seeking restoration of the order dated 23.03.2020 relaxing limitation. The aforesaid Miscellaneous Application No.665 of 2021 was disposed of by this Court vide Order dated 23.09.2021, wherein this Court extended the period of limitation in all proceedings before the Courts/Tribunals including this Court w.e.f 15.03.2020 till 02.10.2021. x x x x 5.1 The order dated 23.03.2020 is restored and in continuation of the subsequent orders dated 08.03.2021, 27.04.2021 and 23.09.2021, it is directed that the period from 15.03.2020 till 28.02.2022 shall stand excluded for the purposes of limitation as may be prescribed under any general or special laws in respect of all judicial or quasi-judicial proceedings. 5.2 Consequently, the balance period of limitation remaining as on 03.10.2021, if any, shall become available with effect from 01.03.2022. 5.3 In cases where the limitation would have expired during the period between 15.03.2020 till 28.02.2022, notwithstanding the actual balance period of limitation remaining, all persons shall have a limitation period of 90 days from 01.03.2022. In the event the actual balance period of limitation remaining, with effect from 01.03.2022 is greater than 90 days, that longer period shall apply. 5.4 It is further clarified that the period from 15.03.2020 till 28.02.2022 shall also stand excluded in computing the periods prescribed under Sections 23 (4) and 29A of the Arbitration and Conciliation Act, 1996, Section 12-Aof the Commercial Courts Act, 2015 and provisos (b) and (c) of Section 138 of the Negotiable Instruments Act, 1881 and any other laws, which prescribe period(s) of limitation for instituting proceedings, outer limits (within which the court or tribunal can condone delay) and termination of proceedings. 9. In view of the above, we are of the view that the Opposite Party before the District Forum / Petitioner herein, ought to have been given benefit of above said judgment by way of requisite extension of time in filing the written statement and consumer complaint ought to have been decided by the District Forum and Appeal by State Commission, on merits. Perusal of the order of the District Forum shows that it being a ex-parte case and in the absence of written version of the opposite party, the case has been decided primarily based on the statements made in the complaint which is evident from the following observations: “Because the statements made in the complaint case and documentary evidences produced by the complainant, and, producing of affidavit in support thereof the documentary evidences are un-rebutted. Therefore, the complaint produced by the complainant is liable to be allowed.” 10. In view of the above, in the interest of justice, we set aside the order dated 24.02.2021 and 03.08.2021 of the State Commission as well as order dated 18.06.2020 of the District Forum and remand the matter back to the District Forum for fresh disposal on merits after giving an opportunity of being heard to both sides. Decision of accepting or otherwise of the written version of the opposite party shall be taken keeping in view the judgment of the Hon’ble Supreme court in Cognizance for Extension of Limitation ( supra ) decided on 10.01.2022. Even if the District Forum comes to a finding that written version of the Opposite Party cannot be accepted, still the opposite party has a right to orally argue before the District Forum based on available records filed by the Petitioner. Revision Petition is disposed of with above observation / order. Parties to appear before the District Forum on 29.11.2023. Thereafter, District Forum shall have freedom to fix a specific date of hearing. As far as possible, District Forum may dispose of the Consumer Complaint in accordance with this order within a maximum of three months. 11. The pending IAs in the case, if any, also stand disposed off. |