R.A. No. 18/2021
M/s Supertech Limited & anr. vs. Vikky Lakhmani & anr.
ORDER
Date 28.06.2021
Per Mr. Rajendra Singh, Member: This review application no.18 of 2021 has been filed by M/s Supertech Limited to review the order dated 11.2.2021 in complaint case no.314 of 2019, Vikky Lakhmani & anr. vs. M/s Supertech Limited & anr.
Heard both the parties’ counsels and perused the concerned complaint case as well as paper filed in review petition.
The main ground of the review petition is that, that the petitioner wants review of order dated 11.2.2021 passed by this bench.
The brief facts are that, that in the aforesaid complaint case no.314 of 2019, as date was fixed for 27.12.2019, on which date the undersigned counsel appeared before this Hon’ble Commission and filed his Vakalatnama. The opposite parties were directed to file their reply by the next date i.e. 16.1.2020. On 16.1.2020, there was call of strike by Bar Council of U.P. and the advocates abstained from judicial work and hence, the said case was fixed for 27.5.2020.
Due to pandemic caused by COVID-19, a complete lock down was observed throughout India and most of countries of the world, the Hon’ble Apex Court has passed specific order in writ petition Civil no.3 of 2020 whereby the limitation to file suits/appeals/replies and other applications were extended till further orders of the Hon’ble Apex Court. In compliance of the aforesaid order of the Hon’ble Supreme Court, this Hon’ble Commission was pleased to fix another date of 29.1.2021 but the case was not taken on the said date.
It is submitted that neither the opportunity to file reply to complaint case was closed nor any adverse order was passed against the petitioner and in fact the complaint case was simply adjourned and fixed for next date. The case was fixed for 29.1.2021 and the reply was furnished to the complainant by mode of registered post which was served on the complainant in October, 2020.
The matter was taken up on 3.2.2021 and the arguments were heard at length. However, in the impugned order the date of filing of reply has got mentioned as 19.1.2021,
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although it was filed in October, 2020 after due service upon the complainants. Thus, the matter comes within the provisions of section 50 of the Consumer Protection Act, 2019.
In another complaint case no.381 of 2018 (Shweta Jaiswal vs. Surabhi Hospital & anr.) almost identical situation subsists and the said complaint case got adjourned due to reason of strike and eventually reply of the opposite party that was to be filed by 11.2.2019 was ordered to be taken on record on 23.12.2019 vide order dated 23.12.2019. Intervening dates of 11.2.2019 and 31.7.2019 were observed as strike by resolution of Bar Council. Therefore, the petitioner herein seeks parity so that interest of justice is served at large.
It is relevant to submit that the reply could not be filed between 16.1.2020 to February, 2020 i.e. just before imposition of nationwide lockdown for the reason that the case was already fixed for 27.5.2020 vide order dated 16.1.2020 and that it could not have been filed through the drop box that was earlier installed at this Hon’ble Commission and had subsequently been removed. As the complainant have duly admitted that they received the reply by 19.10.2020 hence, the impugned order to the effect that the reply was filed on 19.1.2021 stands contradictory to the records of the case.
It is submitted that the reply on behalf of the opposite parties/petitions could not be served and filed due to aforesaid circumstances, which were genuine, bonafide and beyond the control of the opposite parties and not due to malicious intents or negligence.
It is further submitted that petitioners herein have a strong prima facie case on facts and on law and have all hopes of success in the aforesaid complaint case. In fact, the complaint case is barred by limitation, which is strong legal ground. Furthermore, the complainants are proved defaulters themselves and have failed to deposit balance cost of the flat in question despite completion of the project/flat and despite pre-possession demand notice of the company also. Thus, if the impugned order is not recalled and the said complaint is not adjudicated upon merit by considering the reply on record, the petitioners herein shall suffer irreparably for no fault on its part and its substantive rights shall be greatly prejudiced. The applicant has no other equally efficacious
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remedy except to invoke the jurisdiction of the his Hon’ble Commission under section 50 of the Consumer Protection Act, 2019. On the aforesaid grounds mentioned herein this review petition be allowed and the impugned order dated 11.2.2021 be recalled.
Ld. Counsel for the applicant argued orally that due to pandemic of COVID-19 there was exemption granted by the Hon’ble Apex Court hence, the impugned order should have not been passed. He also argued that the court fixed thedate 27.12.2019 and again on 16.1.2020, the next date was fixed 27.5.2020.
The ld. Counsel for the opposite parties has argued that it is mandatory to file written statement/reply within 30 days or it may be further extended 15 days but not beyond 45 days in any case. He also argued that the order passed by this Hon’ble Commission in any other case is not binding on this particular case.
We have perused the order sheet of the complaint case. The order dated 27.12.2019 specifically says that the ld. Counsel for the opposite parties Sri IPS Chaddha has submitted his Vakalatnama. Further, the court has written that for filing written statement 16.1.2020 is fixed and it is made clear that no further time shall be granted for filing written statement. On the next date of 16.1.2020 the advocates were refrained themselves from judicial work and the next date 27.5.2020 was fixed. On the order sheet of next date there is an endorsement by the office dated 22.10.2020 that objections of the opposite parties have been received. It shows that the objection or written statement was received by the court on 22.1.2020. It is also clear that the opposite party has put his appearance on 27.12.2019.
In Civil Appeal No. 1094110942 of 2013, New India Assurance Company Ltd. Vs. Hilli Multipurpose Cold Storage Pvt. Ltd. alongwith other civil appeals, the Hon’ble Supreme Court vide judgment dated 4.3.2020 has said that:
“The reference made to this Constitution Bench relates to the grant of time for filing response to a complaint under the provisions of the Consumer Protection Act, 1986 (for short 'the Act'). The first question referred is as to whether Section 13(2) (a) of the Consumer Protection Act, which provides for the respondent/opposite party filing its response to the complaint within 30 days or such extended period, not
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exceeding 15 days, should be read as mandatory or directory; i.e., whether the District Forum has power to extend the time for filing the response beyond the period of 15 days, in addition to 30 days. The second question which is referred is as to what would be the commencing point of limitation of 30 days stipulated under the aforesaid Section.”
On the contrary, sub section 2(a) of Section 13 of the Consumer Protection Act provides for opposite party to give his response within a period on 30 days or such extended period not exceeding 15 days as may be granted by the District Forum. The intention of the legislature seems to be very clear that the opposite party would get 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.
The Hon’ble Supreme Court has concluded in para 41 as below:-
“To conclude, we hold that our answer to the first question is that the District Forum has no power to extend the time for filing the response to the complaint beyond the period of 15 days in addition to 30 days as is envisaged under Section 13 of the Consumer Protection Act; and the answer to the second question is that the commencing point of limitation of 30 days under Section 13 of the Consumer Protection Act would be from the date of receipt of the notice accompanied with the complaint by the opposite party, and not mere receipt of the notice of the complaint.”
So it is very much clear that as per Consumer Protection Act, the filing of reply within 30 days, if not extended by the concerned court and 45 days if 15 days extended by the concerned court is mandatory provision and there is no scope of any deviation from this provision in the light of the judgment of the constitutional bench of the Hon’ble Supreme Court.
There is no provision that time shall be extended in case of advocates strike or any other situation of the boycotting the court. The Hon’ble Supreme Court has extended the period from 15.3.2020 but in this case, the opposite party has put his appearance on 27.12.2019. It means the written statement should have been filed by 26.1.2020 and if 15 days time is
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presumed to be granted though not granted by the Hon’ble Commission, the written statement should have been filed by 11.2.2020 but in this case no written statement has been filed before 22.10.2020.
The grounds of case of Bar Council regarding abstaining from work has also been assailed by the Hon’ble Supreme Court in many cases. Some are mention herein below:-
- N.G. Dastane vs. Shrikant S. Shivde & anr.
(2001)6 SCC 135
2- State of U.P. vs. Shambhu Nath Singh,
(2001) 4 SCC 667
In Shambhu Nath Singh’s case the Hon’ble Supreme Court has held that “At any rate inconvenienceof an Advocate is not a “special reason” for bypassing the mandate of S. 309 of the Code. If any court finds that the day-to-day examination of witnesses mandated by the legislature cannot be complied with due to the non-cooperation of the accused or his counsel the court can adopt any of the measures indicated in the sub-section i.e. remanding the accused to custody or imposing cost on the party who wants such adjournments (the cost must be commensurate with the loss suffered by the witnesses, including the expenses to attend the court). Another option is, when the accused is absent and the witness is present to be examined, the court can cancel his bail, if he is on bail (unless an application is made on his behalf seeking permission for his counsel to proceed to examine the witnesses present even in his absence provided the accused gives an undertaking in writing that he would not dispute his identity as the particular accused in the case).”
Thus, it is clear that we cannot go beyond the mandatory provisions of the Consumer Protection Act and also the law of land whatever the circumstances may be unless Hon’ble Supreme Court extents time suo moto for such eventuality or natural calamity. If there is mistake of the date in the order, it does not affect the mandate of the Consumer Protection Act because the written statement has not been filed within 30 days.
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On the discussions made above, it is clear that this review petition has no force in the eyes of law and is liable to be dismissed.
The review petition is dismissed.
A copy of this order be placed in the complaint case no.314 of 2019 and the complaint case be put on 10.11.2021 for final hearing.
The stenographer is requested to upload this order on the Website of this Commission today itself.
(Goverdhan Yadav) (Rajendra Singh)
Member Member
Jafri PA II
Court 2
