For the Appellant (s)      :    Mr. Siddharth Banthia, Advocate and

                                       Mr. Sarim Khan, Advocate    

For the Respondent(s)    :    Mr. Saurabh Jain, Advocate   

BEFORE

HON'BLE MR. SUBHASH CHANDRA, PRESIDING MEMBER

                                        ORDER

1.      This First Appeal under Section 51 of the Consumer Protection Act, 1986 (in short, the ‘Act’) is in challenge to the order dated 10.07.2023 of the State Disputes Redressal Commission, Delhi (in short, the ‘State Commission’) in Complaint Case No. 180 of 2021.  By way of the impugned order the right of the Appellant to file Written Statement was closed by the State Commission.

2.      Briefly put, the relevant facts of the case are that the Respondent has filed a Consumer Complaint case no.180 of 2021 before the State Commission.  Vide the order recorded during the course of hearing in these proceedings on 10.07.2023, the State Commission recorded that despite service of notice on the Appellant/Opposite Party by the Respondent/Complainant by way of email on 20.04.2023, the Appellant/Opposite Party did not file its written statement till date.  In view of the written statement not being filed within the stipulated time, the State Commission closed the right of the Appellant/Opposite Party to file the same.  However, both parties were directed to file two page written arguments and listed the matter for final arguments on 13.10.2023.  This daily order is impugned before us on the ground that service of notice on the Appellant/Opposite Party as per section 65(1) of the Consumer Protection Act, 2019 had not been affected and hence the period for filing reply to the complaint had not commenced. It is contended that the service of notice by way of email was not supported by any evidence.  It was also contended that the impugned order did not record the satisfactory service of notice under Section 65(1) as required prior to closing the substantive right of the Appellant/Opposite Party to file its reply within the stipulated time frame of 30 days with a further period of 15 days.  It is, therefore, prayed that the Appeal be allowed and the impugned order dated 10.07.2023 be set aside with any other order(s) as deemed fit in the interest of justice. 

3.      I have heard the learned counsel for the parties and given careful consideration to the material on the record.

4.      learned Counsel for the Appellant essentially made oral submissions as per his appeal and prayed that he should be permitted to file his reply as he had not been served notice in the matter.  Per contra, the learned Counsel for the Respondent/Complainant contended that the Appeal was an abuse of the process of law which deserved to be dismissed with costs as it was intended to delay the proceedings in CC No.180 of 2021 before the State Commission.  It was contended that the State Commission had directed service of notice with the paper book to the Appellant on 26.10.2021 through Registered Post and Speed Post, dasti and, in addition, also directed the Respondent to serve notice by WhatsApp and Email (as per the norm during Covid pandemic) to ensure expedited service.  Complainant was also directed to file an affidavit regarding proof of service.  Accordingly, notice was dispatched on 20.04.2022 to the Appellant with paper book through Registered Post (duly received on 23.04.2022) at the Registered Office and Corporate Office, through physical/hand delivery at the Corporate Office (on 19.04.2022 as per stamp of receipt) and through Email at the customer care email ID of the appellant.  An Affidavit to this effect was also filed with the State Commission on 17.05.2022.  Thereafter, when the matter was listed on 25.05.2022 the proof of service on 17.05.2022 was noted and Appellant was directed to file its written statement within the stipulated time.  On 07.07.2022, when the counsel for the appellant was present, the matter got adjourned to 18.01.2023. The matter was again relisted on 07.07.2023 due to the non-appearance of the Appellant.  Respondent contends that despite service of notice and paper book in April 2022, subsequent to which counsel for Appellant entered appearance before the State Commission, and not raising any objections, the contention of the Appellant in the first appeal was clearly an afterthought and intended to delay the process.  It was averred that the Learned Counsel for the Appellant was present on 07.07.2023 as recorded by the State Commission which was itself evidence of the Appellant having been served.  It was, therefore, prayed that the Appeal be dismissed with heavy costs.

5.      The contentions of the parties have been considered. Section 65(1) of the Consumer Protection Act, 2019 reads as under:

65 (1) All notices, required by this Act to be served, shall be served by delivering or transmitting a copy thereof by registered post acknowledgment due addressed to opposite party against whom complaint is made or to the complainant by speed post or by such courier service, approved by the District Commission, the State Commission or the National Commission, as the case may be, or by any other mode of transmission of documents including electronic means.

(2) Without prejudice to the provisions contained in sub-section (1), the notice required by this Act may be served on an electronic service provider at the address provided by it on the electronic platform from where it provides its services as such and for this purpose, the electronic service provider shall designate a nodal officer to accept and process such notices.

(3) When an acknowledgment or any other receipt purporting to be signed by the opposite party or his agent or, as the case may be, by the complainant is received by the District Commission, the State Commission or the National Commission, as the case may be, or postal article containing the notice is received back by such District Commission, State Commission or the National Commission, with an endorsement purporting to have been made by a postal employee or by any person authorised by the courier service to the effect that the opposite party or his agent or complainant had refused to take delivery of the postal article containing the notice or had refused to accept the notice by any other means specified in sub-section (1) when tendered or transmitted to him, the District Commission or the State Commission or the National Commission, as the case may be, shall declare that the notice has been duly served on the opposite party or to the complainant, as the case may be:

Provided that where the notice was properly addressed, pre-paid and duly sent by registered post acknowledgment due, a declaration referred to in this sub-section shall be made notwithstanding the fact that the acknowledgment has been lost or misplaced, or for any other reason, has not been received by the District Commission, the State Commission or the National Commission, as the case may be, within thirty days from the date of issue of notice.

(4) All notices required to be served on an opposite party or to complainant, as the case may be, shall be deemed to be sufficiently served, if addressed in the case of the opposite party, to the place where business or profession is carried on, and in case of the complainant, the place where such person actually and voluntarily resides.

                                                                                [Emphasis added]

From the above, it is evident that service of notice by electronic means is a valid mode of service. The Appellant’s contention that the service through email was not valid and that the State Commission did not record satisfactory service of notice through this means amounted to lack of service cannot be sustained in view of the clear provision in the Act and in view of the specific direction of the State Commission.  As per Affidavit filed on behalf of the Respondent, service of notice through Registered Post was delivered on 23.04.2023 at the registered address and by hand delivery on 19.04.2023.  This has not been controverted by the Appellant. The State Commission has taken due notice of the same and recorded it in its order.  The failure of the counsel for the Appellant to file his reply also needs to be viewed in light of the judgment of the Hon’ble Supreme Court in New India Assurance Co. Ltd. Vs. Hilli Multipurpose Cold Storage Pvt. Ltd., (20200 5 SCC 757 wherein it has been laid down that:

6. In the Statement of Objects and Reasons of the Consumer Protection Act, in paragraph 4, it has been specifically provided that the Consumer Protection Act is “To provide speedy and simple redressal to consumer disputes, a quasi ­judicial machinery is sought to be set up at the district, State and Central levels…….”. The Preamble of the Consumer Protection Act also mentions that the Act is “to provide for better protection of the interests of the consumers”. The nomenclature of this Act also goes to show that it is for the benefit or protection of the consumer. From the above, it is evident that the Consumer Protection Act has been enacted to provide for expeditious disposal of consumer disputes and that, it is for the protection and benefit of the consumer.

8. A bare reading of Section 13(2)(a) of the Act makes it clear that the copy of the complaint, which is to be sent to the opposite party, is to be with the direction to give his version of (or response to) the case (or complaint) within a period of 30 days. It further provides that such period of 30 days can be extended by the District Forum, but not beyond 15 days.

12. Section 13 of the Consumer Protection Act clearly contemplates where time can be extended by the District Forum, and where it is not to be extended. Like, under sub ­Section (3A) of Section 13, despite the best efforts of the District Forum, in situations where the complaint cannot be decided within the period specified therein, the same can be decided beyond the specified period for reasons to be recorded in writing by the District Forum at the time of disposing of the complaint. Meaning thereby that the same would not be mandatory, but only directory. The phrase “endeavour shall be made”, makes the intention of the legislature evident that the District Forum is to make every effort to decide the case expeditiously within time, but the same can also be decided beyond the said period, but for reasons to be recorded.

13. On the contrary, sub­ Section (2)(a) of Section 13 of the Consumer Protection Act provides for the opposite party to give his response ‘within a period of 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 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.

The question of natural justice is dealt with by the legislature in sub­ Section (3) of Section 13 of the Consumer Protection Act, which clearly provides that “No proceedings complying with the procedure laid down in the sub ­Section (1) and (2) shall be called in question in any court on the ground that the principles of natural justice have not been complied with.” The legislature was conscious that the complaint would result in being decided ex parte, or without the response of the opposite party, if not filed within such time as provided under the Consumer Protection Act, and in such a case, the opposite party will not be allowed to take the plea that he was not given sufficient time or that principles of natural justice were not complied with. Any other interpretation would defeat the very purpose of sub­ Section (3) of Section 13 of the Consumer Protection Act.

17. The legislature in its wisdom has provided for filing of complaint or appeals beyond the period specified under the relevant provisions of the Act and Regulations, if there is sufficient cause given by the party, which has to be to the satisfaction of the concerned authority. No such discretion has been provided for under Section 13(2)(a) of the Consumer Protection Act for filing a response to the complaint beyond the extended period of 45 days (30 days plus 15 days). Had the legislature not wanted to make such provision mandatory but only directory, the provision for further extension of the period for filing the response beyond 45 days would have been provided, as has been provided for in the cases of filing of complaint and appeals. To carve out an exception in a specific provision of the statute is not within the jurisdiction of the Courts, and if it is so done, it would amount to legislating or inserting a provision into the statute, which is not permissible.

By specifically enacting a provision under sub­ Section (3) of Section 13, with a specific clarification that violation of the principles of natural justice shall not be called in question where the procedure prescribed under sub­ Sections (1) and (2) of Section 13 of the Consumer Protection Act has been followed or complied with, the intention of the legislature is clear that mere denial of further extension of time for filing the response (by the opposite party) would not amount to denial or violation of the principles of natural justice. This provision of Section 13(3) reinforces the time limit specified in Section 13(2)(a) of the Act.

[Emphasis added]

The direction of the State Commission in closing the right of the Appellant to file its reply is, therefore, also in line with the directions of the Hon’ble Supreme Court and after due notice to the Appellant.

6.      In light of the discussion above, I do not find any reason to interfere with the order of the State Commission in closing the right of the Appellant to file its reply.  It is evident that the service of notice was complete and, therefore, the Appellant ought to have taken steps to file his reply as per directions and opportunity afforded.  The position of law as per the statute and as laid down by the Hon’ble Supreme Court in this regard is explicit and unambiguous. The Appellant has no grounds to agitate his case.  I find no reason to interfere with the impugned order of the State Commission which is affirmed.

7.      The Appeal is accordingly disposed of. Pending IAs also stand disposed of with this order.