JUSTICE J. M. MALIK, PRESIDING MEMBER

1. Tata AIG General Insurance Company Limited, the petitioner/opposite party has called into question the order rendered on 15.10.2013 by the State Commission, wherein by virtue of Section 13(2)(a) of the Consumer Protection Act, 1986, the right of the opposite party was forfeited to file the written version as it could not file the written version within 45 days from the date of its service. 

2.      There are two judgments of the Hon’ble Apex Court decided by three judges Benches in this context.  One case is titled as Dr. J. J. Merchant vs. Srinath Chaturvedi III 2002 CPJ 8(SC).  The Apex Court took the different view in Kailash vs. Nanhku and Ors. 2005 (4) SCC 480.  Vide order dated 29.11.2013, the matter has been referred to the Larger Bench subject to certain conditions in case titled as New India Assurance Co. Ltd. vs. Hilli Multipurpose Cold Storage Pvt. Ltd., Civil Appeal No.(s) D 35086 of 2013.

3.        The duty cast upon this Commission is to see whether the time can be extended after examining the request made by the petitioner on the touchstone of both the above said two divergent orders passed by the Supreme Court.  If the case of the petitioner is not covered by both the above said authorities, giving different views, the Commission will not extend the time.

4.      The State Commission has declined to extend the time.  That view is supported by the judgments in Dr. J. J. Merchant vs. Srinath Chaturvedi III 2002 CPJ 8(supra),  Oriental Insurance Co. Ltd. vs. M/s Rajan Kumar & Bros (Impex), SLP (civil) No. 24705 of 2013 decided on 13.08.2013,  Kamal Prit Palta & Anr. Vs. Vikas Rana & Ors., civil appeal No. 4806-4807 of 2013 decided on 12.7.2013, Unitech Ltd. vs. Sanjay Goyal & Ors., Civil appeal No.(s) 6042 of 2013.

5.      Although this Commission gave liberty to file the written statement to the opposite party after expiry of 45 days in case of Kamdhenu Pickles and Spices Industries Private Ltd. versus Regional Claims Manager HDFC EGRO and another after reading the judgment of Kamal Prit Palta and another (supra) subject to deposit of half of the amount claimed by the complainant in the sum of Rs.1,93,00,000/-.  However, subsequently the same Bench has referred the matter to the Larger Bench in another case.

6.      The case of the petitioner is covered by Dr. J. J. Merchant vs. Srinath Chaturvedi (supra) and consequently, no time can be extended. 

7.      Moreover, the law laid down in Kailash vs. Nanhku and Ors. (supra) is also not applicable to this case.  In Kailash vs. Nanhku and Ors. (supra) it was held:

“38. The learned counsel for the respondent, on the other hand, invited our attention to a three-judge Bench decision of this Court in Dr. J.J. Merchant and Ors. V. Shrinath Chaturvedi MANU/SC/0668/2002 :[2002]SUPP1SCR469, wherein we find a reference made to Order VIII, Rule 1 of the CPC vide paras 14 and 15 thereof and the Court having said that the mandate of the law is required to be strictly adhered to.  A careful reading of the judgment shows that the provisions of Order VIII, Rule 1 of the CPC did not directly arise for consideration before the Court and to that extent the observations made by the Court are obiter.  Also, the attention of the Court was not invited to the earlier decision of this Court in Topline Shoes Ltd. Vs. Corporation Bank JT 2002 (5) SC 111. 

39.    It was submitted by the senior learned counsel for the appellant that there may be cases and cases which cannot be foretold or thought of precisely when grave injustice may result if the time limit of days prescribed by Order VIII, Rule 1 was rigidly followed as an insurmountable barrier.  The defendant may have fallen sick, unable to move; may be he is lying unconscious.  Also, the person entrusted with the job of presenting a written statement, complete in all respects and on his way to the court, may meet with an accident.  The illustrations can be multiplied.  If the schedule of time as prescribed was to be followed as a rule of thumb, failure of justice may be occasioned though for the delay, the defendant and his counsel may not be to blame at all.   However, the learned counsel for respondent No. 1 submitted that if the court was to take a liberal view of the provision and introduce elasticity into the apparent rigidity of the language, the whole purpose behind enacting Order VIII, Rule 1 in the present form may be lost.  It will be undoing the amendment and restoring the pre-amendment position, submitted the learned counsel.

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(i)………

(v)  Though Order VIII, Rule 1 of the CPC is a part of Procedural Law and hence directory, keeping in view the need for expeditious trial of civil causes which persuaded the Parliament to enact the provision in its present form, it is held that ordinarily the time schedule contained in the provision is to be followed as a rule and departure therefrom would be by way of exception.  A prayer for extension of time made by the defendant shall not be granted just as a matter of routine and merely for asking, more so when the period of 90 days has expired.  Extension of time may be allowed by way of an exception, for reasons to be assigned by the defendant and also be placed on record in writing, howsoever briefly, by the Court on its being satisfied.  Extension of time may be allowed if it was needed to be given for the circumstances which are exceptional, occasioned by reasons beyond the control of the defendant and grave injustice would be occasioned if the time was not extended.  Costs may be imposed and affidavit or documents in support of the grounds pleaded by the defendant for extension of time may be demanded, depending on the facts and circumstances of a given case.”

(Emphasis Added)

8.         It must be borne in mind that the authority of Dr. Dr. J. J. Merchant vs. Srinath Chaturvedi (supra) is a direct judgment under the Consumer Protection Act, 1986 and authority in Kailash vs. Nanhku and Ors(supra) is a judgment under Order VIII Rule 1 C.P. C. Let us see whether the case of the petitioner is covered by the judgment given in Nanhku vs. Kailash and Ors. (supra).

9.      The instant case was admitted by the State Commission on 26.6.2013.  The opposite party was served on 24.7.2013.  It could not file the written statement within 45 days.  Shri S. R. Singh, learned counsel for the petitioner appeared in the State Commission on 15.10.2013.  His Vakalatnama was filed.  It appears that the written statement was not filed even on 15.10.2013.  It is surprising to note that the petitioner has not given any reason for extension of time.  They have given the grounds in the relevant paras, which are reproduced as under:

“B. Because the Ld. State Commission has erred in holding that it is bound by Section 13(2)(a) of the Consumer Protection Act, whereas it has been laid down in Section 18 of the Act that the same can be modified by the State Commission to dispose of disputes before it.

C. Because the Ld. State Commission has erred in not granting further time to the appellant for filing its written version as same could have been granted subject to conditions as the Ld. State Commission would have deemed fit.  Moreover, the case was at the very initial stage and no harm would have caused to the parties in giving time to the appellant for filing the reply, which would have been very important in understanding and deciding the case on merits.

D. Because the Ld. State Commission has not followed the spirit of the act and the provisions of the same.”

10.     While repeating observations made by the Apex Court in Kailash vs. Nanhku and Ors. (supra), we hereby find that “extension of time may be allowed by way of an exception for reasons to be assigned by the defendant and also be placed on record in writing howsoever, briefly by the court on its being specified.”  No reason at all has been cited.  It must be borne in mind that the procedure of C.P.C. and Consumer Protection Act, 1986 are entirely different.  Consumer Protection Act, 1986 envisages a summary procedure.  Section 13 clause 3(A) runs as follows: 

“13(3A) Every complaint shall be heard as expeditiously as possible and endeavor shall be made to decide the complaint within a period of three months from the date of receipt of notice by opposite party where the complaint does not require analysis or testing of commodities and within five months, if it requires analysis or testing of commodities:

Provided that no adjournment shall be ordinarily granted by the District Forum unless sufficient cause is shown and the reasons for grant of adjournment have been recorded in writing by the Forum

Provided further that the District Forum shall make such orders as to the costs occasioned by the adjournment as may be provided in the regulations made under this Act.

Provided also that in the event of a complaint being disposed of after the period so specified, the District Forum shall record in writing, the reasons for the same at the time of disposing of the said complaint.”         

It is thus clear that in the instant case, three months’ time after the receipt of the notice had already elapsed.  Consequently, the order passed by the State Commission cannot be faulted. 

11.    The revision petition is without merits, therefore, the same is hereby dismissed.