Tamil Nadu

StateCommission

RP/25/2016

T. Dhakshayani & anr - Complainant(s)

Versus

K. Suresh kumar - Opp.Party(s)

C.R. Malarvannan-Petnr

21 Feb 2017

ORDER

BEFORE THE STATE CONSUMER DISPUTES REDRESSAL COMMISSION, CHENNAI

 

BEFORE :       Hon’ble Dr. Justice S. TAMILVANAN     PRESIDENT

Tmt. P. BAKIYAVATHI                            MEMBER 

 

R.P.NO.25/2016

 

(Against order in CMP.No.109/2016 in CC No.22/2016 on the file of the DCDRF, Chengalpattu

 

DATED THIS THE 21^st DAY OF FBRUARY 2017

                            

1.       Mrs. T. Dhakshayani

          W/o. E. Thirunavukkarasu

          Proprietor

          M/s. Varun Constructions

 

2.       E. Thirunavukkarasu

 

Both are residing at:                                                        M/s. C.R. Malarvannan

No.5/470, Apper Street, Medavakkam                                      Counsel for

Chennai – 600 100                                                 Petitioners/ Opposite parties

 

                  Vs.

 

K. Suresh Kumar

Rep. by his Power Agent K. Gopinath

No.3/503, A-11, Blocki-2(S2)

Dhakshayani Apartments

Suryagandhi Street                                                            M/s. S. Bhargavan

Sbhari Nagar Extension                                                           Counsel for

Medavakkam, Chennai- 600 100                                       Respondent/Complainant

 

          The petition in CMP.No.32/2017 is preferred by the petitioner, praying to stay the proceedings of District Forum in CC.No.22/2016.  The main Revision Petition praying to set aside the order of the District Forum in CMP.No.109/2016 in CC.No.22/2016 itself is taken up. 

 

          These petitions coming on before us for hearing finally on 21.2.2017. Upon hearing the arguments of the counsel on bothsides, this commission made the following order in the open court.

 

Dr. JUSTICE S.TAMILVANAN,   PRESIDENT    (Open Court)

  

1.       The petitioner, by filing a petition in CMP.No.32/2017, prays to stay all further proceedings in CC.No.22/2016 pending on the file of District Forum, Chengalpattu.  On hearing the petitioner, Revision petition itself is taken up for consideration.  Heard the petitioner.

2.       The Revision Petitioner is the opposite party before the District Forum, and the Respondent is the complainant.  The Revision Petitioner, had filed a petition before the District Forum in CMP.No.109/2016,   seeking an order for condoning the delay of 30 days in filing written version, which was dismissed  by the Forum on 9.8.2016, aggrieved by which the Revision preferred praying for setting aside the order of the District Forum dt.9.8.2016, and also for a direction to accept the version of the Revision Petitioner/ Opposite party.

 

3.       The Respondent / complainant raised his No Objection, before the District Forum, as well as before this commission for allowing the Revision and  for receiving the version.

 

4.       The District Forum, on consideration, passed the order by dismissing the petition, referring the ruling of the Hon’ble Apex Court reported in 2016 SAR (Civil) 176 held in New India Assurance Co. Ltd., Vs. Hilli Multipurpose Cold Storage Pvt. Ltd.   

 

5.       In the decision cited above, the Hon’ble Apex Court has held as follows:

“Upon hearing the concerned counsel and upon perusal of both the judgments referred to herein above, which pertain to extension of time for the purpose of filing written statement, we are of the opinion that the view expressed by the three-judge Bench of this Court in DR.JJ Merchant (supra) should prevail.

 

In the case of Dr.J.J.Merchant (supra), which is on the same subject, this court observed as under:

 

“The National Commission or the State Commission is empowered to follow the said procedure.  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 to, the legislative mandate of disposing of the cases within three or five months would be defeated. 

 

 

4.       We have carefully perused the order of the District Forum, and the materials available on record.

 

5.       Learned counsel for the petitioner/ Opposite party, submitted that the delay in filing version was neither wilful nor wanton, and if the version of the petitioner/ opposite party is not accepted, that would cause irreparable loss to the petitioner/opposite party. Learned counsel for the petitioner further submitted that during the pendency of the proceedings, the District Forum had the power to set aside its own order of setting the opposite party as exparte and  under such circumstances, the District Forum could have condoned the delay in filing version.  The counsel for the complainant submitted that in order to conduct the case on merit, he has no objection in passing appropriate orders and receiving the version

 

6.       In view of the above, our attention was drawn to an unreported order of the Hon’ble Supreme Court in Civil Appeal in D.No.2365/2017 dt.10.2.2017 in Reliance General Insurance Co. Ltd., and another VS. Ms. Mampee Timbers and Hardwares Pvt. Ltd., and another, which reads as follows:

The question involved in this appeal is whether the time stipulated under Section 13 of the Consumer Protection Act, 1986 for filing written statement is mandatory and whether no flexibility is available with the court in the interest of justice.

 

This question has been answered in the affirmative in New India Assurance Co. Ltd., VS. Hilli Multipurpose Cold Storage Private Ltd., in Civil appeal No.D.35086 of 2012, reiterating the view in JJ Merchant and ors Vs. Shrinath Chaturvedi (2002) 6 SCC 635

 

Thereafter, the matter has been referred to a larger bench in view of the contra views in the judgements of this court in ................

 

It has been brought to our notice that in view of uncertainty in law, proceedings in number of cases is held up before the Consumer Fora.

 

We consider it appropriate to direct that pending decision of the larger bench, it will be open to the concerned fora to accept the written statement filed beyond the stipulated time of 45 days in an appropriate case, on suitable terms, including the payment of costs, and to proceed with the matter.

 

 

7.       As per the decision of the Hon’ble Supreme Court, to decide the  question of law involved therein, the matter was further referred to a Larger Bench, in the interest of justice. Having considered the recent order of the Apex Court, we consider it just and proper to direct the District Forum to receive the Written version of the opposite party and proceed further as per law.

 

 

8.       Eventhough, on considering the lethargic attitude of the opposite party, we are inclined to impose cost of Rs.1000/- to be paid to the Respondents, which shall be paid by the Petitioners/ opposite parties and accordingly the Revision Petition has to be ordered.

 

7.       In the result, the Revision Petition is allowed by setting aside the order of the District Forum in CMP.No.109/2016 in CC.No.22/2016 dt.9.8.2016, and the petition in CMP.No.109/2016 in CC No.22/2016 is allowed.  The District Forum is directed to receive the written version of the opposite parties and conduct further proceedings, according to law.  The parties are directed to file their version before the District Forum within ten days, from the date of receipt of copy of this order and the District Forum is further directed to dispose the main complaint at the earliest.

 

8.       CMP.No.32/2017 is closed. 

 

             P. BAKIYAVATHI                                     S. TAMILVANAN 

                         MEMBER                                               PRESIDENT

 

 

 

                                                

INDEX : YES / NO

Rsh/d/STV/ /RP ORDERS