M/S DADDY’S BUILDERS PVT. LTD. & ANOTHER versus MANISHA BHARGAVA AND ANOTHER on 11 February 2021

1. Feeling aggrieved and dissatisfied with the impugned order dated04.09.2020 passed by the National Consumer Disputes RedressalCommission, New Delhi (hereinafter referred to as the ‘NationalCommission’) in First Appeal No. 1999/2018, by which the NationalCommission has dismissed the said appeal confirming the order passedby the Karnataka State Consumer Disputes Redressal Commission(hereinafter referred to as the ‘State Commission’) dated 26.09.2018rejecting the application filed by the petitioners herein seeking condonationof delay in filing the written version/written statement to the consumercomplaint, original respondent nos. 1 & 2-petitioners herein have preferredthe present special leave petition.

2. By order dated 26.09.2018, the State Commission rejected theapplication filed by the petitioners herein seeking condonation of delay infiling the written statement/written version to the consumer complaint.It is not in dispute that the written version/written statement was filedbeyond the prescribed period of limitation provided under the ConsumerProtection Act, 1986 (hereinafter referred to as the ‘Act’), i.e., beyondthe period of 45 days. It is not in dispute that as per the provisions of theAct, the written version/written statement is required to be filed within30 days and the same can be extended by a further period of 15 days.The order passed by the State Commission came to be confirmed by theNational Commission. Hence, the present special leave petition.

3. Shri Ashish Choudhary, learned Advocate appearing on behalfof the petitioners has vehemently submitted that it is true that as per thedecision of the Constitution Bench of this Court in the case of NewIndia Assurance company Limited v. Hilli Multipurpose Cold StoragePrivate Limited, reported in (2020) 5 SCC 757, the District Forumhas no power to extend the time to file the response to the complaintbeyond the period of 15 days in addition to 30 days as is envisaged underSection 13 of the Act. It is submitted that however as observed inparagraph 63, the said judgment shall be applicable prospectively only.Therefore, it is the case on behalf of the petitioners that the aforesaiddecision shall not be applicable retrospectively, and more particularly tothe complaints filed before the said decision. It is submitted that in thepresent case the application for condition of delay came up forconsideration before the State Commission on 26.09.2018 and on thatdate there was a judgment of this Court in the case of Reliance General B

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AInsurance Co. Ltd. v. M/s Mampee Timbers & Hardwares Pvt. Ltd.(Diary No. 2365 of 2017 decided on 10.02.2017) directing theconsumer fora to accept the written statement beyond the stipulatedtime of 45 days in an appropriate case, on suitable terms, including thepayment of costs and to proceed with the matter, keeping in view thefact that the judgment of this Court in the case of New India AssuranceBCompany Limited v. Hilli Multipurpose Cold Storage Private Limited,reported in (2015) 16 SCC 20 has been referred to a larger Bench.Therefore, it is the case on behalf of the petitioners that the StateCommission ought to have condoned the delay in filing the writtenstatement/written version to the consumer complaint.C4. Having heard learned counsel appearing on behalf of thepetitioners and so far as the question whether the date on which theState Commission passed the order, then on that date, whether the StateCommission has the power to condone the delay beyond 45 days forfiling the written statement under Section 13 of the Act is concerned, as Dsuch, the said issue whether the State Commission has the power tocondone the delay beyond 45 days is now not res integra in view of theConstitution Bench decision of this Court in the case of New IndiaAssurance Company Limited v. Hilli Multipurpose Cold Storage Pvt.Ltd. reported in (2020) 5 SCC 757. However, it is submitted by thelearned counsel appearing on behalf of the petitioners that as in paragraphE63 it is observed that the said judgment shall be applicable prospectivelyand therefore the said decision shall not be applicable to the complaintwhich was filed prior to the said judgment and/or the said decision shallnot be applicable to the application for condonation of delay filed beforethe said decision.FHowever, the aforesaid cannot be accepted. It is required to benoted that as per the decision of this Court in the case of J.J. Merchantv. Shrinath Chaturvedi, reported in (2002) 6 SCC 635, which was athree Judge Bench decision, consumer fora has no power to extend thetime for filing a reply/written statement beyond the period prescribedunder the Act. However, thereafter, despite the above three Judge BenchGdecision, a contrary view was taken by a two Judge Bench and thereforethe matter was referred to the five Judge Bench and the ConstitutionBench has reiterated the view taken in the case of J.J.Merchant (supra)and has again reiterated that the consumer fora has no power and/orjurisdiction to accept the written statement beyond the statutory periodHprescribed under the Act, i.e., 45 days in all. However, it was found that

in view of the order passed by this Court in Reliance General InsuranceCo. Ltd. (supra) dated 10.02.2017, pending the decision of the largerBench, in some of the cases, the State Commission might have condonedthe delay in filing the written statement filed beyond the stipulated timeof 45 days and all those orders condoning the delay and accepting thewritten statements shall not be affected, this Court observed in paragraph63 that the decision of the Constitution Bench shall be applicableprospectively. We say so because one of us was a party to the saiddecision of the Constitution Bench.

5. Now so far as the reliance placed upon the order passed bythis Court dated 10.02.2017 in the case of Reliance General InsuranceCo. Ltd. (supra) is concerned, the same has been dealt with in detail bythe National Commission by the impugned order while deciding the firstappeal. As rightly observed by the National Commission, there was nomandate that in all the cases where the written statement was submittedbeyond the stipulated period of 45 days, the delay must be condoned andthe written statement must be taken on record. In order dated 10.02.2017,it is specifically mentioned that it will be open to the concerned fora toaccept the written statement filed beyond the stipulated period of 45days in an appropriate case, on suitable terms, including the payment ofcosts and to proceed with the matter. Therefore, ultimately, it was left tothe concerned fora to accept the written statement beyond the stipulatedperiod of 45 days in an appropriate case. As observed by the NationalCommission that despite sufficient time granted the written statementwas not filed within the prescribed period of limitation. Therefore, theNational Commission has considered the aspect of condonation of delayon merits also. In any case, in view of the earlier decision of this Courtin the case of J.J. Merchant (supra) and the subsequent authoritativedecision of the Constitution Bench of this Court in the case of NewIndia Assurance Company Limited v. Hilli Multipurpose Cold StoragePvt. Ltd. (2020) 5 SCC 757, consumer fora has no jurisdiction and/orpower to accept the written statement beyond the period of 45 days, wesee no reason to interfere with the impugned order passed by the learnedNational Commission.

6. In view of the above and for the reasons stated hereinabove,the present special leave petition deserves to be dismissed and isaccordingly dismissed.

Devika Gujral

SLP dismissed.

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