ORDER

1.       This revision petition has been filed under section 58(1)(b) of The Consumer Protection Act, 2019 in challenge to the impugned Order dated 05.06.2024 passed by the State Commission in R.P. No.152 of 2022 arising out of the Order dated 10.11.2022 passed by the District Commission in Complaint No. 387 of 2022.

2.       Heard learned counsel for the petitioners as well as the respondents and perused the entire record including inter alia the Order dated 10.11.2022 passed by the District Commission, the impugned Order dated 05.06.2024 passed by the State Commission and the memo of petition.

3.       It appears that a complaint was filed before the District Commission and the notice along with the copy of the complaint was served upon the petitioners (the opposite parties no. 1, 4 & 5). The date fixed for appearance and filing the written version was 21.09.2022. On 21.09.2022 the District Commission had passed the following order which reads as thus:       

ORDER

Ld. Advocate appearing for the complainant is present and files affidavit of service. However, O.P. no. 2 enters appearance and undertakes to file written version on the next date. O.P. Nos. 1, 4 and 5 also enter appearance by filing separate vakalatnama and prays for time for filing written version. From the track report filed by the complainant it appears that service of notice upon O.P. no. 3 is still incomplete. So, complainant is to take step afresh for service of notice upon O.P. No. 3. Fix 10.11.2022 for filing written version by O.P. Nos. 1, 2, 4 and 5 and for taking step by the complainant afresh for service of notice upo O.P. no. 3. 

4.       It transpires from the perusal of the aforesaid Order that the opposite party no. 2 had also appeared on 21.09.2022 and all the opposite parties except the opposite party no. 3 had entered appearance on the aforesaid date and had sought time to file the written versions.

5.       The matter was next fixed for 10.11.2022, which was obviously much after the expiry of the statutory period of 30 days and in fact even beyond the expiry of further extended period of 15 days thereafter (in case the extension was to be allowed). On this date i.e.10.11.2022, the following Order was passed by the District Commission which read as thus:

Today is fixed for taking steps by the complainant afresh for service of notice upon OP No. 3. The Ld. Advocate for the complainant is present and files the postal track report showing delivery confirmation upon OP No. 3. The Ld. Advocate for OP No. 1, 4 & 5 is present today. The Ld. Advocate for OP No. 1, 4 & 5 files the WV. Copy is served. However, none appears on behalf of OP No. 2 & 3 inspite of receiving the notice. Since the statutory period of limitation for filing WV by OP 2 & 3 has already been expired, so no further opportunity to file WV can be granted to OP No 2 & 3. Hence, the case shall run ex parte against the OP No. 2 & 3. Hence, fix 14/12/2022 for filing Affidavit-in-chief by the complainant.

Later: One Ld. Advocate for OP No. 2 appears and files a petition along with certain medical document seeking time for filing written version on the ground of serious illness of the advocate on record. Considering the ground stated in the petition and the medical document annexed herewith, time prayer is hereby considered and allowed. Hence ex-parte order against OP No. 2 is hereby recalled. So todate also fix for filing written version by OP No. 2 as last chance.

6.       The perusal of the aforesaid order would show that on this date the written versions were filed on behalf of opposite parties no.1, no.4 and no.5 (petitioners herein) and were taken on record. It also transpires from the aforesaid order that none had appeared on this date on behalf of the opposite parties no.2 and no. 3 initially but later on the counsel appeared for the opposite party no.2 and sought further time to file the written version on medical grounds. It also transpires that though initially, in the wake of the non-appearance on behalf of the opposite parties no. 2 & no. 3 the District Commission had ordered to proceed ex parte against them fixing 14.12.2022 as the next date but later on after the appearance of the counsel for opposite party no. 2, it recalled its order to proceed ex parte on the counsel’s request and gave further time to the opposite party no. 2 to file its written version.

7.       It appears that feeling aggrieved by the Order dated 10.11.2022, the complainants / respondents challenged the same before the State Commission in appeal. The appeal was allowed and the District Commission’s Order dated 10.11.2022 was set aside and the direction was made to proceed ex parte against all opposite parties.

8.       In order to facilitate better appreciation the relevant extracts of the impugned Order passed by the State Commission may be quoted herein below which read as follows:

1.         This revision petition under section 47(1)(b) of the  Consumer Protection Act, 2019 has been filed against the order No. 4 dated 10.11.2022 passed by the Learned District Consumer Disputes Redressal Commission, Kolkata, Unit – III, West Bengal ( in short, ‘the District Commission’) passed in connection with consumer case No. CC/387/2022 whereby the Learned District Commission has been pleased to accept the written version of 1,4 & 5 after expiry of statutory period and was pleased to allow the opposite party No. 2 to file written version after the expiry of the statutory period.

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6.      Having heard the Learned Advocates appearing for both the parties and on

         perusal of the record it appears to me that after filing of the said complaint

            case notices were duly served upon the opposite parties but in spite of receiving notices the opposite parties did not file the written version within the statutory period of time. But the opposite party Nos. 1,4 & 5 filed written version on 10.11.2022 and it was accepted by Learned District Commission. Learned District Commission was pleased to proceed with the case ex parte against the opposite party Nos. 2 & 3 to fix the date on 14.12.2022 for filing evidence on affidavit by the complainant.  But on the same day at the latter half of the day the opposite party No. 2 appeared and prayed for time for filing written version and the said prayer was allowed and the Learned District Commission recalled the ex parte order of hearing against the respondent No. 2 / opposite party No. 2 and fixed a day for filing written version by the opposite party No. 2.

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           9.          The Constitutional Bench of the Hon’ble Apex Court reported in New India Assurance Co. Ltd. Vs. Hilli Multipurpose Cold Storage Pvt. Ltd., 2020 (5) SCC 757 has pronounced that the limitation period under section 13(2) 3 of the Consumer Protection Act, 1986 could not be exercised beyond the statutory prescribed period of 45 days.

          10.         The Hon’ble Supreme Court in Daddy’s Builders Pvt. Ltd. v. Manisha Bhargava [Petition for Special Leave to Appeal (Civil) No.1240 of 2021] decided on 21.02.2021 observed as follows :-

                        “5. In any case, in view of the earlier decision of this Court in the case of J.J. Merchant (supra) and the subsequent authoritative decision of the Constitution Bench of this Court in the case of New India Assurance Company Limited v. Hilli Multipurpose Cold Storage Pvt. Ltd. (2020) 5 SCC 757, consumer fora has no jurisdiction and /or power to accept the written statement beyond the period of 45 days, we see no reason to interfere with the impugned order passed by the learned National Commission.

                        6. In view of the above and for the reasons stated hereinabove, the present special leave petition deserves to be dismissed and is accordingly dismissed.”

           11.        Under this facts and circumstances and on consideration of the above noted ruling I am of the view that the impugned order passed by the Learned District Commission is not within the jurisdiction and is bad in law. So, the impugned order passed by the Learned District Commission should be set aside. Accordingly, the revisional application is allowed. The impugned order dated 10.11.2022 is hereby set aside.

           12.        Let the case do proceed ex parte against all the opposite parties. The Learned District Commission is directed to dispose of the case as early as possible without granting any unnecessary adjournments to either of the parties.

          Feeling aggrieved by the aforesaid Order passed by the State Commission, the present revision petition has been filed on behalf of the petitioners (opposite parties no. 1, no. 4 and no. 5).

9.       It has been argued on behalf of the petitioners that when the matter was taken up on 21.09.2022 before the District Commission it was specifically directed that on the next date 10.11.2022 the opposite parties no. 1, no. 2, no. 4 and no. 5 may file their respective written version. Thereafter the petitioners / the opposite parties no. 1, no. 4 and no. 5 had duly filed their written versions as directed. According to the learned counsel the petitioners cannot be penalised for complying with the directions of the District Commission. The contention is that in the wake of the specific directions given by the District Commission, the petitioners should not be faulted with for being guilty of any omission or failure to file the written version within the statutory period of 30 days or 45 days as the case may be. It has also been submitted that the Order dated 21.09.2022 whereby the next date was fixed as 10.11.2022 and on which date the petitioners were required / directed to file their written versions has attained finality and has not been put to challenge in any court or higher forum. It has been argued that the State Commission has not given due consideration to this conspicuous background which has actually led to the omission of not filing the written version in time. Submission is that therefore the order passed by the State Commission should be set aside and the petitioners should be given the opportunity to file their written versions, or else their defence may get seriously impaired.

10.     On the other hand, the learned counsel appearing for respondents has rebutted the contentions raised on behalf of the petitioners. It has been submitted that as per the provisions of the Consumer Protection Act the statutory period within which the written version has to be filed is 30 days or at the most 45 days if further extension is allowed or granted by the Commission for that purpose. According to learned counsel, the opposite parties and their respective counsels and all concerned stake holders are supposed to know the relevant law on this aspect and any misconception regarding the same shall not go to legitimise the omission or the breach committed against the statutory law. Whatever might have been the date fixed by the District Commission it shall not change the statutory law on the point which is unambiguous and categorical and certainly does not admit of any controversy after the pronouncement given by the Constitutional Bench of Hon’ble the Supreme Court in the case of New India Assurance Co. Ltd. vs. Hilly Multipurpose Cold Storage Pvt. Ltd. 2020(5) SCC 757. Any observations or directions made by the District Commission in its Order dated 21.09.2022 cannot vindicate the breach committed by the petitioners / opposite parties for not filing the written versions within the prescribed period of time which has been provided in the Consumer Protection Act and regarding which the Constitutional Bench of the Hon’ble Apex Court has pronounced its last word which is now the law of land. Submission is that the State Commission has therefore adopted a legally sound and correct view which needs no interference.

11.     Perused the record in the light of the submissions made by the rival sides at the Bar.

12.     The matter appears to be quite simple and does not call for any profusely elaborate discussion. The facts as have already been narrated above do not need to be repeated all over again. From the perusal of the revision petition (para 6 of the petition) it is clear that the notice along with the copy of the complaint was served upon the petitioners / opposite parties on 06.09.2022 fixing the date of appearance on 21.09.2022. Reckoning the maximum period from the date of service of the notice, the written version could not have been filed beyond the period of 45 days thereafter in any case, even if the initial period of 30 days was to be extended for next 15 days. Therefore, filing of the same thereafter cannot be either approved or permitted. Whatever might have been the date fixed by the District Commission, it could never have amended or tweaked the statute contained in the Consumer Protection Act which provides the maximum period within which the written version may be filed. In fact it is sometimes seen that various Commissions calculate the maximum permissible period of time for filing the written version and fix up the next date in the matter when the statutory period for doing so would expire or to say it in another words which is the last day on which the written version may be filed. But sometimes the dates are given by the concerned Commissions much after such period would have expired. In such cases the concerned opposite party must file its written version in the Office / Registry of the concerned Commission within the statutory period stipulated in the Act and must not wait for the date which may come later on after the expiry of the statutory period. We come across numerous matters in which the written versions are filed in the Registry of the Commissions within the stipulated statutory period without ever waiting for the date fixed in the matter. At any rate, the law on the point is no more res integra after the pronouncement of the Constitutional Bench’s decision (supra) and we cannot brook any deflection, much less than any deviation, from it.

          The decision of the District Commission to accept the written version of the petitioners / opposite parties after the expiry of the stipulated statutory period was a patent error of law and which has been rightly set aside by the State Commission. There is no good reason to take a different view in the matter, other than what has been taken by the State Commission in this regard. The opposite parties which stood served and which did not file the written versions within 30 days or within the further period of 15 days therefrom (if the extension was to be granted) cannot be allowed to file their written versions thereafter.

13.     The instant petition lacks merits and stands dismissed therefore.

14.    The Registry is requested to send a copy each of this Order to the parties in the petition and to their learned counsels as well as to the fora below within three days. The stenographer is requested to upload this Order on the website of this Commission within three days.