PER JUSTICE J.M. MALIK 1. The core question which falls for consideration is, “whether it is mandatory or obligatory to file the written version by the opposite -2- parties within 45 days as per section 13 of the Consumer Protection Act.” 2. The record reveals that on 30.10.2012, Sh. J. Braganza appeared for the complainant and Sh. D. Aswenkar appeared for the OPs. Sh. D.Aswenkar was directed to file Vakalatnama and written versions on 09.11.2012. The Opposite Parties were duly served on 19.10.2012 and 30.10.2012. On 09.11.2012, Sh. J. Braganza was present for the complainant. OPs were absent and the case was adjourned for fling written version subject to provision of law to 30.11.2012. On 30.11.2012, the OPs were absent. However, Sh. D. Aswenkar appeared subsequently and filed Vakalatnama. The case was adjourned to 07.12.2012. Sh. J. Braganza was present for the complainant and OPs were absent. The case was adjourned for arguments on 18.12.2012. On 18.12.2012, both the OPs were absent and it was ordered that they be proceeded against ex-parte and the complainant was directed to file evidence. The case was adjourned to 04.01.2013. On 26.12.2012, Advocate of OPs 1 & 2 had submitted applications for condonation of delay and filed the written version. They also filed the application for setting aside the -3- exparte order, on 18.12.2012, after serving the same to the complainant. On 04.01.2013, reply was filed by the complainant to the application for condonation of delay in filing the written version and case was adjourned for arguments on 16.01.2013. Counsel for the OPs remained absent. The case was adjourned for dismissal of application dated 18.12.2012 and the case was adjourned to 28.01.2013. On 28.01.2013, Mr. D. Aswenkar was present and arguments were heard. 3. The order was pronounced on 04.02.2013 wherein the application was dismissed. It is thus clear that for the first time petitioner was directed to file written version on 30.10.2012. The written version was not filed within 30 days. No request was made by the petitioner to extend the time. Consequently, they cannot claim the advantage of time of 15 days. The State Commission on 04.02.2013 i.e. after the delay of 30/45 days dismissed all the applications moved by the petitioners and forfeited their right to file the written statement. 4. Application for condonation of delay has been perused by us. It mentions two grounds. First is that the complaint is barred by time. -4- This plea can be taken any time whether the written statement is filed or not. 2nd ground says that opportunity should be given on the basis of principles of natural justice. This is also not a sufficient ground. 5. The State Commission observed as under:- “6. In our view, the complainant is partly right. We are unable to accept the submission that the Commission cannot allow a party to file their written version beyond 45 days that is 30 plus 15 days as stipulated by Section 13(2)(a) of the C.P.Act, 1986. The Apex Court in Topline Shoes Ltd., vs, corporation Bank, 2002(2)CPJ 7 has held that this provision is directory and has always to be kept in mind while passing an order extending a time to file a reply to the petition. However, in our view, the OPs have not given any explanation, much less a satisfactory one, for no filing their written versions earlier till the date of the application under consideration. Moreover, now there is an order to proceed exparte against them and unless the said order is set aside, the OPs cannot be allowed to -5- contest the complaint by filing their written versions. Needless to observe, the said order cannot be set aside by this Commission.” 6. The Bizarre conduct of the Advocate for OPs is clear. He took the case in a happy go lucky manner. Sometimes he appeared and sometimes he did not appear. 7. The Supreme Court authority reported in Dr. J. J. Merchant & Ors. Vs. Shrinath Chaturvedi III(2002 CPJ 8 (SC) 8, wherein it was held : “….. From the aforesaid section, it is apparent that on receipt of the complaint, the opposite party is required to be given notice directing him to give his version of the case within a period of 30 days or such extended period not exceeding 15 days as may be granted by the District Forum or the Commission. For having speedy trial, this legislative mandate of not giving more than 45 days in submitting the written statement or the version of the case is required to be adhered to. If this is not adhered, -6- the legislative mandate of disposing of the cases within three or five months would be defeated.” 8. Same view was also taken in the case of “Fairgrowth Investments Ltd. Vs. Custodian (2004) 11 Supreme Court Cases 472”. In paragraph 16, wherein it was mentioned as follows:- “16. The decision, which does deal with this question is Topline Shoes ltd. v. Corpn. Bank4. 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 thirty 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.4 It is not necessary for us to expatiate on such -7- reservation in view of the subsequent decision of this Court in Dr. J.J. Merchant case8 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.4” 9. Consequently, we dismiss the revision petition as the defence already stands struck off, the question of setting aside the exparte order does not arise. However, it is made clear that the OPs can join the proceedings at any time. They can also attack the complaint itself without pressing for their defence. The question whether the case is within time or not can be entertained and heard by the State Commission. | 
