MR. SHYAMAL KUMAR GHOSH, MEMBER

The instant interlocutory application has been filed by the opposite parties no 1 and 3 praying for condonation of delay in filing written version and also praying for setting aside the order dated 3^rd January 2023 so that the aforesaid ops are at liberty to file their written version in order to take defence against the petition of complaint filed by the complainant.

The instant interlocutory has been taken up for hearing.  

The ld advocate appearing for the opposite parties has submitted that their written version is now ready in order to take their defence. They are ready and willing to defend their case against the frivolous claims brought by complainant. The ld advocate has further submitted that no notice has been served upon the opposite parties and as such they were not in a position to file their written version within time. Accordingly the ld advocate has prayed for codonation of delay in filing written version by the ops no – 1 and 3 and has also prayed for setting aside the order dated 3^rd January 2023 so that the aforesaid ops are at liberty to file the same before this Commission.

The ld advocate appearing for the complainant has argued that there is no such wrong, mistake or any illegality in passing the order dated 3^rd January 2023 as the statutory period of 45 days for filing of written version at the behest the opposite parties has already been elapsed. Within the time framed as per provision of Consumer Protection Act, the ops have failed to file their written version before this Commission in order to take their defence. Accordingly, the ld. advocate has prayed for dismissal of the instant interlocutory application with exemplary costs.

We have heard the ld advocate appearing for both sides at length and in full.

We have considered the submissions made by both parties.

We have meticulously perused materials available on the record.

The hearing of the interlocutory application has been concluded.

 Having heard the ld advocates for both sides and upon careful perusal of the record we seem that only one moot question has been raised as to whether the instant interlocutory application would be allowed or not in accordance with law.

Section 38(2)(a) of the Consumer Protection Act, 2019 confers the followings:

‘refer a copy of the admitted complaint, within twenty-one days from the date of its admission to the opposite party mentioned in the complaint directing him to give his version of the case within a period of thirty days or such extended period not exceeding fifteen days as may be granted by it.’

Section 38(3)(a) of the Act, 2019 provides the followings:

‘refer a copy of such complaint to the opposite party directing him to give his version of the case within a period of thirty days or such extended period not exceeding fifteen days as may be granted by the District Commission.’

Section 38(3)(b) of the Act, 2019 confers as under:

‘if the opposite party, on receipt of a copy of the complaint, referred to him under clause (a) denies or disputes the allegations contained in the complaint, or omits or fails to take any action to represent his case within the time given by the District Commission, it shall proceed to settle the consumer dispute :

1. On the basis of evidence brought to its notice by the complainant and the opposite party, if the opposite party denies or disputes the allegations contained in the complaint, or
2. Ex-parte on the basis of evidence brought to its notice by the complainant, where the opposite party omits or fails to take any action to represent his case within the time given by the Commission.’

Be it mentioned here that the provisions relating to complaints under sections 35,36,37,38 and 39 shall be applicable in order to dispose of the consumer case by the State Commission and without prejudice to the provisions of the Act 2019 the State commission has an ample power to declare any terms of contract which is unfair to any consumer as null and void.

So in pursuant to the above discussions, in details it is the settled principle of law that the written version should be filed by the opposite party/parties within (30 days + 15 days) i.e. 45 days from the date of receiving notice positively and if the opposite party fails or omits to file his/her written version within the time framed, the State commission has an ample power to fix the case ex-parte against the opposite-party.

Actually this principle should be followed strictly in order to   disposeof the consumer case without any unnecessary delay so that being a social legislation the preamble of the Consumer Protection Act, 2019 is to be maintained.

In this respect we can safely rely upon the decision NEW INDIA ASSURANCE CO LTD VS HILLI MULTIPURPOSE COLD STORAGE PVT. LTD reported in (2015) 16 SCC 472 wherein the Hon’ble Apex court has been pleased to hold the following observations:-

‘the intention of the legislature seems to be very clear that the opposite party would get the time of 30 days and in addition another 15 days at the discretion of the Forum to file its response. No further discretion of granting time beyond 45 days is intended under the Act. To conclude, we hold that our answer to the first question is that District Forum has no power to extend the time for filing the response to the complaint beyond the period 15 days in addition to 30 days.’

At this juncture we have carefully perused the order being no – 2 dated 03.01.2023 wherefrom it appears to us that statutory period of 45 days has already been expired for filing written version by the opposite parties 1 & 3 and as such the case has been fixed for ex-parte against the opposite parties 1 &3.

More over it is also settled principle of law that we have no power to recall of its own order already passed by this Commission in the consumer case.

Keeping in view of the above observations and regard being had to the citations of the Hon’ble Apex Court there is no such mistake, error, irregularity or illegality in passing the order impugned dated 03.01.2023 and accordingly we are constrained to dismiss the instant interlocutory application filed by the ops 1 and 3 without any order as to costs.

The    interlocutory application  being No. IA/339/2023 stands disposed of.

Note accordingly.   

It appears from the record that the evidence on affidavit has already been filed on 24.08.2023 . So the next date shall be fixed for filing questionnaire by the  OP No. 2 only.

Fix 17.01.2024 for filing questionnaire by the OP No. 2.

The case will proceed exparte against the OPs No. 1 & 3.