Shri Avinash V. Prabhune, Member
Heard Ld Counsels & perused Application/reply.
1) The Applicant (Original Complainant), Dr Darshan Dakshindas, had prayed for review of the order passed below Exh 11 on 18.04.2022 by this commission permitting OP to file written statement on records. Applicant submitted that this commission has no jurisdiction to permit OP to file written statement beyond period of 45 days. Applicant submitted that notice in the Consumer Complaint was served upon OP No 1 & 1a on 18.11.2019. OP appeared before commission on 13.01.2020 & filed vakalatnama on 27.01.2020 along with written statement. Commission had considered tracking report dtd 10.02.2020 but not considered pursis dtd 23.12.2020, where postal receipts for Rs 100/- were filed on records demonstrating Complaint alongwith documents were sent to OP in November 2019.
2) OP filed reply & submitted that OP had sought permission from this Commission to file written statement on 27.01.2020, which was allowed by this commission vide order dtd 18.4.2022 considering the facts regarding non receipt of documents by OP as Notice was dispatched by paying tariff of Rs 25/- by Complainant.
3) This commission has permitted OP 1 & 1a to file W/S due to non receipt of Complaint with documents on the basis of tracking report filed on 10.02.2020 (Exhibit 14) indicating that tariff of Rs 25/- was paid by Complainant. Complainant submitted that as per postal receipts placed on records (Exhibit 15) on 23.12.2020, Complainant had paid Rs 100/- towards postal charges for sending Notice by enclosing Complaint & documents to OP. Complainant further submitted that OP had received Complaint along with documents on 18.11.2019, therefore, OP ought to have filed W/S within 45 days. i.e. upto 02.01.2020. It is matter of records that OP appeared before Commission on 13.01.2020 & filed reply on 27.01.2020, which was filed beyond period of 45 days prescribed under Section 13 of The Consumer Protection Act, 1986.
4) This Commission had permitted OP to file W/S as two different documents creating ambiguity related to service of Notice (Exhibit 14) dt 10.02.2020 & (Exhibit 15) dt 23.12.2020) were placed on records after difference of about 10 months period. Moreover, both parties had not clarified actual position during earlier hearings regarding above deviations when application of O.P. for filing W/S was allowed by this Commission. However, after detailed perusal of record, Commission noted that Complaint along with documents was delivered to OP on 18.11.2019. It is also noticed from the application of OP dtd 27.01.2020 seeking permission to file W/S that OP had sought time for filing reply due to non receipt of vakalatnama from New Delhi upto 27.01.2020. OP had nowhere denied receipt of Complaint along with Documents in the said application, on the contrary, it can be seen that said W/S was notarized at New Delhi on 08.01.2020 & was submitted by OP on 27.01.2020 before Commission, which aptly confirms that OP had received documents as contended by Complainant. It is also clear that mandatory period of 45 days for filing w/s was already over when O.P. had notarized W/S on 08.01.2020 at New Delhi. It can be seen that both parties had not given any submissions on above aspect in earlier hearings.
5) Hon’ble Supreme Court in the matter of Dr. J.J. Merchant & Ors VS. Shrinath Chaturvedi [2002] INSC 337 (12 August 2002) & recently in the matter of ‘New India Assurance Company Limited v Hilli Multipurpose Cold Storage Private Limited (Civil Appeal No 10941-10942 of 2013), decided on 4th March 2020,’ the Constitution Bench of the Hon’ble Supreme Court Of India, comprising five members, held that the time prescribed for filing a reply to the complaint under Section 13(2)(a) of the Act is mandatory and not merely directory.
6) In the present case, OP 1 & 1a had filed W/S on 27.01.2020, after about 70 days period, although Complaint with documents was received on 18.11.2019 by OP. In view of the settled position of law this Commission has no powers to accept W/S beyond 45 days, therefore, Review application filed by Complainant deserves to be allowed, hence allowed. The Written statement filed by OP 1 & 1a is required to be struck down from the records.
ORDER
1) Review Application is allowed.
2) The written statement dtd 27.01.2020 filed by O.P. 1 & 1a, which was allowed to be taken on records on 18.04.2022, be struck down.
3) No order as to costs.
