STATE CONSUMER DISPUTES REDRESSAL COMMISSION,

U.T., CHANDIGARH

1. M/s Club Mahindra Holidays having its Branch office at SCO No.68-69, 2^nd Floor, Sector 8-C, Madhya Marg, Chandigarh.

2. Sh. Gijan (infact Vijan) Harit, Sales Manager, M/s Club Mahindra Holidays having its Branch office at SCO No.68-69, 2^nd Floor, Sector 8-C, Madhya Marg, Chandigarh.

…… Revision Petitioners/Opposite Parties

V e r s u s

1.       Suresh Bansal

2.       Mukesh Bansal

Both sons of Sohan Lal Bansal, Director M/s Ruhani Industries Pvt. Limited, 201/17, Sector 17, Panchkula.

....Respondents/complainants

BEFORE:   JUSTICE SHAM SUNDER (RETD.), PRESIDENT.

                MRS. NEENA SANDHU, MEMBER.

Argued by: Sh. Nitesh Singhi, Advocate for the     Revision

              Petitioners.

              Sh. Nitin Thatai, Advocate for the respondents.

PER JUSTICE SHAM SUNDER (RETD.), PRESIDENT

              This Revision Petition is directed against the order dated 10.12.2012, rendered by the District Consumer Disputes Redressal Forum-I, U.T., Chandigarh (hereinafter to be called as the District Forum only) vide which, it declined to grant further adjournment to the Opposite Parties (now Revision Petitioners), for filing written version, alongwith evidence, by way of affidavit(s), on the ground, that already a period of 45 days had expired, after their (Opposite Parties), appearance, in the Consumer Complaint.

2.               The facts, in brief, of the Consumer Complaint are that, on 25.09.2010, Opposite Party No.2 i.e. Vijan Harit, Sales Manager of Opposite Party No.1, visited the office of the complainants, and told that Opposite Party No.1, being India`s No.1 holiday brand, from Mahindra Holidays and Resorts India Limited, provided different schemes, for becoming members of the Club. Opposite Party No.2 also allured the complainants, that Opposite Party No.1, was having high reputation, in the field of holiday Clubs and won many awards. Opposite Party No.2 also induced the complainants that in those days, a very good scheme i.e. ‘Club Mahindra Purple Studio Membership’, was continuing, and they could become members of the same. The complainants were also told that, on becoming members of the Club, 3 nights CMH Holidays, absolutely free, would be given to them. It was also told that they would also get LCD (32 inches of Panasonic Company), RCV Food Vouchers, worth Rs.4000/-, and one week RCI (international) discount. The complainants purchased membership no.2055962 i.e. ‘Club Mahindra Purple Studio’, on 25.09.2010 of Opposite Party No.1, for them, as well as, for their dependents. The total price of the said membership was Rs.5,43,952/-. Down payment, in the sum of Rs.81,593/-, was paid by the complainants, to Opposite Party No.1. The balance amount was to be paid, by the complainants, in 12 equal monthly installments of a sum of Rs.38,530/- each. Another sum of Rs.38,530/-, against an installment was paid by the complainants. In this way, the total amount of Rs.1,20,123/-, was paid by the complainants, to Opposite Party No.1. After becoming members of Opposite Party No.1, the complainants visited Manali, in the month of November 2010, and met its Manager/attendant there. They also requested him, for providing accommodation, as they were having Club Mahindra Purple Studio membership, but he (Manager/attendant) refused to allot the accommodation, on the ground, that a member had to apply for the same, 15 days, in advance. It was further stated that inspite of so many requests, accommodation was not provided to the complainants, even though, the same was available. Since, the complainants were not satisfied with the services of the Opposite Parties, they asked them, to cancel the membership aforesaid, and refund the fees, but to no avail.  It was further stated that the aforesaid acts of the Opposite Parties, amounted to deficiency, in rendering service, as also indulgence into unfair trade practice. When the grievance of the complainants, was not redressed, left with no alternative, a complaint under Section 12 of the Consumer Protection Act, 1986 (hereinafter to be called as the Act only), was filed, directing the Opposite Parties, to refund Rs.1,20,123/- alongwith interest @18% P.A., from the dates of deposits, till realization; pay compensation, in the sum of Rs.50,000/- for mental agony and physical harassment; and cost of litigation, to the tune of Rs.20,000/-.

3.               The Counsel for the Opposite Parties/Revision Petitioners, put in appearance, on 23.10.2012, in the complaint, and, filed his memo of appearance. The case was adjourned to 23.11.2012, for filing vakalatnama and written version, alongwith evidence. Thereafter, the case was adjourned from time to time, with or without costs, but the written statement and evidence were not filed, by the Opposite Parties, upto 10.12.2012.

4.               Ultimately, the District Forum, passed the order dated 10.12.2012, in the manner, referred to, in the opening paragraph of the instant order.

5.               Feeling aggrieved, the instant Revision Petition, was filed by the Revision Petitioners/Opposite Parties, against the order 10.12.2012.

6.               We have heard the Counsel for the Parties, and have gone through the record of the case, carefully. 

7.               The Counsel for the Revision-Petitioners/Opposite Parties, submitted that, on 10.12.2012, he could not file the written version, alongwith evidence, by way of affidavit(s), as the Law Officer of the Opposite Parties, met with an accident, who was unable to come to the office regularly, as a result whereof, it took some-time, to prepare the written version, and affidavit(s). He further submitted that, due to the aforesaid reason, on 07.12.2012, a request was made to the District Forum, to grant some more time i.e. about 20 to 25 days, to file the written version, alongwith evidence, by way of affidavit(s), but it  failed to consider the genuine request of the Opposite Parties, and granted a short date only i.e. 10.12.2012, for filing the same, and, ultimately, on that date, passed the order impugned. He further submitted that the request of the Counsel for the Opposite Parties, for adjournment, for filing the written version, alongwith evidence, by way of affidavit(s), thus, was genuine, but was illegally declined by the District Forum. He further submitted that, in case, the order dated 10.12.2012, is not set aside, miscarriage of justice shall occasion, as, in that event, the Revision Petitioners/Opposite Parties, shall be condemned unheard. He further submitted that the provisions of Section 13(2) of the Act, providing a maximum period of 45 days, for filing the written version, are not mandatory, but directory in nature. He further submitted that the procedure, is, in the ultimate, the handmaid of justice, and, as such, it  was required of the District Forum, to grant further Opportunity, to the Opposite Parties, for filing the written version, and evidence, by way of affidavit(s). He further submitted that the order of the District Forum, being illegal and invalid, is liable to be set aside.

8.               On the other hand, the Counsel for the respondents/complainants, submitted that even earlier to 10.12.2012, two to three dates were granted to the Opposite Parties/Revision Petitioners, for filing written version alongwith evidence, by way of affidavit(s), but they failed to do so. He further submitted that the order of the District Forum, being legal and valid, is liable to be upheld.

9.               The questions, which fall for consideration, in this Revision Petition are, whether the provisions of Section 13(2) of the Act are mandatory or directory in nature; whether the District Forum could grant time to the Opposite Parties, to file their written version, and evidence, by way of affidavit(s), even beyond the total period of 45 days, under Section 13(2)(a) of the Act; and whether the provisions of Section 13(2) of the Act are procedural in nature. For the purpose of determination of these questions, the provisions of Section 13 (2) of the Act, are reproduced hereunder:

"the District Forum shall, if the complaint admitted by it under Section 12 relates to goods, in respect of which the procedure specified in Sub-Section (1) cannot be followed, or if the complaint relates to any services,-  (a) 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 Forum;

(b) where 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 Forum, the District Forum shall proceed to settle the consumer dispute,-

(i) on the basis of evidence brought to its notice by the complainant and the opposite party, where the opposite party denies or disputes the allegations contained in the compliant, or

(ii) 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 Forum”.

The questions posed, at the out-set of this paragraph, squarely fell for determination in Topline Shoes Ltd. Vs. Corporation Bank, AIR 2002 SC 2427, before the Hon`ble Supreme Court. The Hon`ble Supreme Court, while interpreting the provisions of Section 13(2) of the Act, held as under:-

“A reading of Clause (a) of Sub-section (2) of Section 13 no doubt makes it clear that the District Forum would give time of 30 days to the opposite party for the purposes of giving his version. An extension of time for filing reply could be granted but not exceeding 15 days. Thus the total period during which the reply can be filed is 45 days after extension of fifteen days is granted. The question which however arises is as to whether the provision prescribing limit for filing reply is mandatory or directory in nature.

The Statement of Objects and Reasons of the Consumer Protection Act, 1986 indicates that it has been enacted to promote and protect the rights and interests of consumers and to provide them speedy and simple redressal of their grievances. Hence, quasi-judicial machinery has been set up for the purpose, at different levels. These quasi-judicial bodies have to observe the principles of natural justice as per Clause (4) of the Statement of Objects and Reasons, which reads as under:

To provide speedy and simple redressal to consumer disputes, quasi-judicial machinery is sought to be set up at the district State and Central levels. These quasi-judicial bodies will observe the principles of natural justice and have been empowered to give relief of a specific nature and to award, wherever appropriate, compensation to consumers. Penalties for non-compliance of the orders given by the quasi-judicial bodies have also been provided."

Thus the intention to provide a time frame to file reply, is really meant to expedite the hearing of such matters and to avoid unnecessary adjournments to linger on the proceedings on the pretext of filing reply. The provision, however, as framed, does not indicate that it is mandatory in nature. In case the extended time exceeds 15 days, no penal consequences are prescribed therefor. The period of extension of time "not exceeding 15 days", does not prescribe any kind of period of limitation. The provision appears to be directory in nature, which the consumer forums are ordinarily supposed to apply, in the proceedings before them. We do not find force in the submission made by the appellant, in person, that in no event, whatsoever, the reply of the respondent could be taken on record beyond the period of 45 days. The provision is more by way of procedure to achieve the object of speedy disposal of such disputes. It is an expression of "desirability" in strong terms. But it falls short of creating any kind of substantive right in favour of the complainant by reason of which the respondent may be debarred from placing his version in defence, in any circumstances, whatsoever. It is for the Forum or the Commission to consider all facts and circumstances, along with the provisions of the Act, providing time frame to file reply, as a guideline, and then to exercise its discretion, as best it may serve the ends of justice and achieve the object of speedy disposal of such cases keeping in mind principles of natural justice as well. The Forum may refuse to extend time beyond 15 days, in view of Section 13(2)(a) of the Act, but exceeding the period of 15 days of extension, would not cause any fatal illegality in the order.

Now a code of procedure must be regarded as such. It is 'procedure' something designed to facilitate justice and further its ends; not a penal enactment for punishment and penalties; not a thing designed to trip people up. Too technical a construction of Sections that leaves no room for reasonable elasticity of interpretation should, therefore, be guarded against (provided always that justice is done to 'both sides') lest the very means designed for the furtherance of justice be used to frustrate it.

Next, there must be ever present to the mind, the fact that our laws of procedure are grounded on a principle of natural justice which requires that men should not be condemned unheard, that decisions should not be reached, behind their backs, that proceedings that affect their lives and property should not continue, in their absence, and that they should not be precluded from participating in them. Of course, there must be exceptions, and where they are clearly defined, they must be given effect to. But taken by and large, and subject to that proviso, our laws of procedure should be construed, wherever that is reasonably possible, in the light of that principle".

10.            The plain perusal of the principle of law, laid down, in Topline Shoes Ltd.`s case (supra)  clearly goes to establish that the provisions of Section 13(2) are not mandatory, but directory, in nature, as no penal consequences have been provided, for not filing the written version, within 45 days, from the date of service of the Opposite Parties. However, it is also evident, from the aforesaid principle of law, that the provisions of Section 13(2), are procedural, in nature, grounded on the principles of natural justice, which require that men should not be condemned unheard; that decisions should not be reached behind their back; that proceedings that affect their lives and property should not continue, in their absence; and that they should not be precluded from participating in the same.

11.            In State of Punjab and another vs. Shamlal Murari & Anr., AIR 1976 SC 1177, the  principle of law, laid down, was to the effect, that procedure, is, in the ultimate handmaid of justice and not its mistress and is meant to advance its cause, and not to obstruct the same. The procedural Rule, therefore, has to be liberally construed, and care must be taken, that so strict interpretation be not placed thereon, whereby, technicality may tend to triumph over justice. It has to be kept in mind, that an overly strict construction of procedural provisions, may result in the stifling of material evidence, of a party, even if, for adequate reasons, which may be beyond its control. We must always remember that procedural law is not an obstruction, but an aid to justice. Procedural prescriptions are the hand-maid and not the mistress, a lubricant, not a resistant, in the administration of justice. If the breach can be corrected, without injury to the just disposal of a case, regulatory requirement should not be enthroned into a dominant desideratum. The Courts and the quasi-Judicial Tribunals have been set up, with the sole purpose of dispensing justice, and not to wreck the end result, on technicalities.

12.            In Smt. Rani Kusum Vs. Smt. Kanchan Devi and Ors. Appeal (Civil) 5066 of 2005, decided on 16.08.2005, by the Hon`ble Supreme Court, the provisions of  Order VIII, Rule 1 of the Code of Civil Procedure, which are almost analogous, to the provisions of Section 13(2) (a) of the Act, and which are reproduced hereunder, fell for interpretation:-

"1. Written statement.- The defendant shall, within thirty days from the date of service of summons on him, present a written statement of his defence:

Provided that where the defendant fails to file the written statement within the said period of thirty days, he shall be allowed to file the same on such other day, as may be specified by the Court, for reasons to be recorded in writing, but which shall not be later than ninety days from the date of service of summons."

The Apex Court held that Order VIII, Rule 1, after the amendment, casts an obligation, on the defendant, to file the written statement, within 30 days, from the date of service of summons on him, and within the extended time, falling within 90 days. It was further held that the provision does not deal with the power of the Court, and also does not specifically take away the power of the Court, to take the written statement, on record, though filed beyond the time, as provided for. Further, the nature of the provision contained in Order VIII, Rule 1 is procedural. It is not a part of the substantive law. Substituted Order VIII, Rule 1 intends to curb the mischief of unscrupulous defendants adopting dilatory tactics, delaying the disposal of cases, causing inconvenience to the plaintiffs, and petitioners approaching the Court for quick relief, and, also to the serious inconvenience of the Court faced with frequent prayers for adjournments. The object is to expedite the hearing and not to scuttle the same. While justice delayed may amount to justice denied, justice hurried may, in some cases, amount to justice buried. It was, thus, held by the Hon`ble Supreme Court that all the Rules of Procedure are, in the ultimate, the handmaid of justice. The language employed by the draftsman of processual law, may be liberal or stringent, but the fact remains that the object of prescribing procedure, is to advance the cause of justice.

13.            Since, the provisions of Section 13(2) of the Act, in view of the principle of law, laid down, in the aforesaid cases, have been held to be directory and procedural in nature, the District Forum was required to take into consideration, that no injustice was done, to the Opposite Parties, on account of non-grant of adjournment, for filing the written version, beyond the stipulated period of 45 days. Non-grant of adjournment to the Opposite Parties, in the facts and circumstances of the case, referred to above, amounted to causing injustice to them. It also amounted to condemning the Opposite Parties, unheard, which is not the purpose of law. In view of the principle of law, laid down, in the aforesaid cases, the questions posed at the out-set of paragraph number 9 above, are answered, in the manner that the provisions of Section 13(2) of the Act are directory and procedural, in nature, and the District Forum is empowered to grant adjournment, beyond the period of 45 days, as stipulated by Section 13(2) of the Act, for filing the written version, depending upon the peculiar facts and circumstances of the case. The District Forum, thus, failed to exercise the Jurisdiction vested in it, on the basis of sound judicial principles. The order impugned, is, thus, illegal and liable to be set aside.

14.            The complaint was taken up, for the first time by the District Forum, on 08.10.2012 and notice was issued to the Opposite Parties for 23.10.2012. On 23.10.2012, the Counsel for the Opposite Parties, put in appearance and filed his appearance memorandum. The complaint was adjourned to 23.11.2012, for filing vakalatnama, written version, and evidence, by way of affidavit/affidavits. On 23.11.2012, the Counsel for the Opposite Parties, filed his vakalatnama, and requested for a date for filing the written version, alongwith evidence, by way of affidavit(s). The case was adjourned to 07.12.2012, with costs, for filing the written version, alongwith evidence, by way of affidavit(s). However, the same were not filed on 07.12.2012, due to the reason that the Law Officer of the Opposite Parties, allegedly met with an accident, who was unable to come to the office regularly. Thereafter, on the request of the Counsel for the Opposite Parties, the case was again adjourned to 10.12.2012, for the purpose. On  10.12.2012, the written version, alongwith evidence, by way of affidavit(s) could not be filed by the Opposite Parties, as a result whereof, the District Forum, passed the order impugned, out of decision whereof, the instant Revision Petition has arisen.  The Opposite Parties, were, required to file written reply alongwith evidence, within 30 days, with extended period of 15 days, from the date of service of notice i.e. in 45 days. In this case, the Opposite Parties were served on 12.10.2012. 45 days, expired on 27.11.2012. The order impugned was passed on 10.12.2012. No doubt, for, whatsoever, the reason may be, by not filing the written version, alongwith evidence, by way of affidavit(s), the Opposite Parties/Revision Petitioners, certainly caused delay, in the disposal of the complaint, on merits. They are, thus, required to be burdened with costs, to meet the ends of justice.

15.            No doubt, the District Forum, declined further opportunity to the Opposite Parties, to file written version, alongwith evidence, by way of affidavit(s), on the ground, that already a period of 45 days, from the date of their appearance, had lapsed, by relying upon the case tilted as Dr. J.J. Merchant V. Shrinath Chaturvedi, 2002 (3) R.C.R. (Civil) 700. It may be stated here, that in

Dr. J.J. Merchant`s case (supra), no invariable principle of law, was laid, by the Hon`ble Supreme Court, that the District Forum, was not empowered to grant adjournment, for filing written reply, and evidence, by the Opposite Parties, after the expiry of 45 days, even if, genuine cause was shown. No invariable principle of law, was laid down, in Dr. J.J. Merchant`s case (supra), that the provisions of Section 13(2) of the Act, are mandatory and substantive, in nature. In Dr. J.J. Merchant`s case (supra), on the other hand, strong desirability, was expressed that the provisions of Section 13(2) of the Act, should be adhered to, so as to serve the purpose of the Act, for speedy disposal of the Consumer Disputes. It was specifically held in Dr. J.J. Merchant`s case (supra), that long delay, in the disposal of complaint, could not be said to be a ground, for rejecting the same, and directing the complainant, to approach the Civil Court. On the other hand, in Topline Shoes Ltd.`s case (supra), specific questions were posed, by the Hon`ble Supreme Court, for determination, as to whether, the provisions of Section 13(2) of the Act are mandatory or directory in nature; whether, the District Forum could grant time to the Opposite Parties, to file their written version, alongwith evidence, by way of affidavit(s), beyond the total period of 45 days, provided under Section 13(2)(a) of the Act, if the facts and circumstances of the case so warrant; and whether the provisions of Section 13(2)(a) of the Act are procedural in nature. All these questions, were specifically answered by the Apex Court in Topline Shoes Ltd.`s case (supra), in the manner, that the provisions of Section 13(2), are directory and procedural in nature; and that the District Forum is empowered to grant further time, beyond 45 days, to the Opposite Parties, to file written version, alongwith evidence, by way of affidavit(s), if the facts and circumstances, so warrant. At the same time, it was also held that the District Forum should not, however, go on granting adjournments mindlessly, for filing written version beyond the time, stipulated under Section 13(2) (a) of the Act, if the facts and circumstances of the case do not warrant so.  Since invariable principle of law, regarding the directory and procedural nature of the provisions of Section 13(2) of the Act, was laid down, by the Apex Court, in Topline Shoes Ltd.`s case (supra), the same is aptly applicable, to the facts and circumstances of the instant case. The facts of Dr. J.J. Merchant`s case (supra), being distinguishable, from the facts of the instant case, no help could be drawn from the principle of law, laid down therein, by the District Forum.

16.            No other point, was urged, by the Counsel for the Parties.

17.            For the reasons recorded above, the Revision Petition is accepted. The order dated 10.12.2012, rendered by the District Forum, is set aside, subject to payment of costs of Rs.4000/-, by the Revision Petitioners/Opposite Parties, to the complainants/ respondents. The District Forum shall grant only one date to the Opposite Parties, for filing written reply alongwith evidence, by way of affidavit(s), and, thereafter, decide the complaint, in accordance with the provisions of law. The payment of costs to the complainants/respondents, shall be a condition precedent. In other words, the payment of costs, shall be made, before filing the written reply, alongwith evidence, by way of affidavit(s). 

18.            The parties are directed to appear, before the District Forum (I) on 21.02.2013, at 10.30 A.M., for further proceedings.

19.            The District Forum record, alongwith a certified copy of the order, be sent back, to it, immediately, so as to reach there, well before the date and time fixed i.e. 21.02.2013, at 10.30 A.M.

20.            Certified Copies of this order, be sent to the parties, free of charge.

21.            The Revision Petition file be consigned to the Record Room, after due completion.

Pronounced.

February 8, 2013

Sd/-

[JUSTICE SHAM SUNDER (RETD.)]

PRESIDENT

Sd/-

[NEENA SANDHU]

MEMBER

Rg