By Mr. Justice P .K. Deka, President,
Heard Mr. R. K. Jain, learned counsel, appearing for the revision petitioner. This matter has proceeded ex-parte against the sole opposite party vide order dated 5-4-2022. Today, this application is taken up for its disposal.
The present revision petitioner is the opposite party No. 1 in Consumer Complaint Case No. 36/2019 pending before the learned Commission below, Sonitpur at Tezpur. Notice was duly served on the present revision petitioner by the learned Commission below and 29-11-2019 was the date fixed for filing of written version by the opposite party No. 1. But the present revision petitioner could not take steps by filing written version and the learned counsel Mr. P. C. Bothra, who appeared before the Commission below on behalf of the revision petitioner informed that the conducting counsel Mr. R. K. Jain, could not turn up due to some mechanical breakdown problem with the vehicle he was travelling to Tezpur. The said problem took place at Sonapur about 45 Kms from Guwahati. The learned Commission below vide order dated 29-11-2019 came to the conclusion that the present revision petitioner being the opposite party No. 1 failed to take steps, inasmuch as notice was duly served on the said revision petitioner/opposite party No. 1 on 25-10-2019. As the stipulated period for filing written version under the Consumer Protection Act, 1986 expired, accordingly, matter proceeded ex-parte.
After the said order, the revision petitioner filed an application bearing No. 337/2019 seeking the leave to file written version after vacating the ex-parte order passed on 29-11-2019. The said application was disposed of on 21-12-2019 thereby disallowing the prayer sought for vacating the ex-parte order dated 29-11-2019 and allowing tofile its written version. The said order dated 21-12-2019 is put under challenge in this revision petition.
It is contended by Mr. Jain that though the learned Commission below took note of the decision passed by two Judge Bench of the Hon’ble Supreme Court in New India Assurance Company Ltd. Vs Hilli Multipurpose Cold Storage Pvt. Ltd. reported in AIR 2016 SC 86 while passing the impugned order but a specific mention was made by the five Judge Bench decision in New India Assurance Cl. Ltd. vs Hilli Multipurpose Cold Storage (P) Ltd. reported in (2020) 5 SCC 757 while upholding the decision of two Judge Bench holding that the same shall operate prospectively with effect from 4-3-2020, as such, the application for setting-aside the ex-parte order of the learned Commission below which was filed on 21-12-2019, ought to have been disposed of allowing the same as per the benefit given by three Judge Bench of the Hon’ble Supreme Court in Diamond Exports & Anr. Vs United India Insurance Company Ltd. and Ors. reported in (2022) 4 SCC 169. It would be not out of place to mention that prior to the decision in New India Assurance Company Ltd. vs Hilli Multipurpose Cold Storage AIR 2016 SC 86 (supra) it was held by the Apex Court that the period for filing written version as stipulated in the Consumer Protection Act, 1986, could be extended which decision was found to be in contrary to a decision J.J. Merchant’s case reported in (2002) 6 SCC 635 passed earlier to it holding that the said period being the mandate of the statute cannot be extended. But in New India Assurance Company Ltd. Vs Hilli Multipurpose AIR 2016 SC 86 (supra) the Apex Court having observed two separate views on the same issue the same was referred to the Constitution Bench of five Judges. While the mater stood referred to the Constitution Bench similar matters were pending before the Hon’ble Apex Court seeking extension of time to file the written version. As the Constitution Bench decided the reference on 4-3-2020 upholding the view of the decision in New India Assurance (supra) reported in AIR 2016 SC 86 without taking note of the pending petitions as such a three Judge Bench clarified the position in Diamond Exports & Anr. Vs United India Insurance Company Ltd (supra).
We have given due consideration to the submission made by Mr. Jain. We have perused the decision rendered in Diamond Exports and Anr. (supra) and the relevant paragraph is extracted herein below-
10. The issue in the present appeal pertains to a situation where prior to the decision of the Constitution Bench, the NCDRC had condoned a delay for a period beyond the prescribed statutory outer limit. In the present case, the NCDRC had exercised its discretion on 25th February, 2020 to condone the delay prior to the decision of the Constitution Bench on 4th March, 2020. In Reliance General Insurance Company Ltd. (supra), a two Judge Bench of this Court had, on 10 February 2017, issued directions to the consumer fora as regards applications for condonation during the pendency of the reference to the Constitution Bench. The Court observed thus
5. We consider it appropriate to direct that pending decision of the larger Bench, it will be open to the Fora concerned 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………...
That the pending decision of the larger bench referred in Reliance General Insurance Company Ltd Vs Mampee Timbers and Hardwares Private Limited reported in (2021) 3 SCC 673 was given by the Apex Court on 4-3-2020, (2020) 5 SCC 757 (supra) thereby holding that the stipulated period of 45 days for filing the written version, stipulated under the Consumer Protection Act, 1986 cannot be extended and the same has its effect prospectively from 4-3-2020 and while passing the said decision by the larger bench of the Hon’ble Supreme Court as there was no mention of the pending applications either for extension of period for filing written version or for setting ex-parte order, thus in order to bring the balancing position, as such, it was held in Diamond Exports & Anr. (supra) as herein above extracted, thereby giving the benefit to the pending application for condonation filed prior to 4-3-2020, as per the decision in Mampee Timbers (supra). The said decision directed the Consumer Forum to render a decision on merit.
From the said decision, as the impugned order was passed in an application filed prior to passing of the judgment on 04-03-2020 by the Constitution Bench of the Apex Court in New India Assurance Co. Ltd Vs Hilli Multipurpose Cold Storage (P) Ltd. reported in (2020) 5 SCC 757 we are of the considered opinion that in order to do complete justice to the present revision petitioner, it would be proper to set-aside the impugned order dated 21-12-2019 and remand the matter for passing a fresh order after hearing the parties which we accordingly do whereafter, the learned Commission below shall give a decision on merit in terms of the decision passed by the Hon’ble Apex Court in Diamond Exports & Anr. (supra). Accordingly, the impugned order dated 21-12-2019 is hereby set-aside with a direction to the present revision petitioner to appear before the learned Commission below, Sonitpur at Tezpur on 28-9-2022.
With the above direction, this revision petition stands disposed. Interim order, if any, stands vacated.
