A Constitution Bench of the Supreme Court recently in the case of New India Assurance Co. Ltd. v. Hilli Multipurpose Cold Storage Pvt. Ltd. MANU/SC/0272/2020 held that the time period to file the reply within forty five (30 days or such extended period, not exceeding 15 days) under Section 13 (2) of the Consumer Protection Act, 1986 (Act) is mandatory and there cannot be any extension beyond the said period.
The issue whether the time period as prescribed under Section 13 (2) of the Act for the filing the reply is mandatory or directory was referred to Constitution Bench in the case of Bhasin Infotech & Infrastructure (P) Ltd. v. Grand Venezia Buyers Assn., (2018) 17 SCC 255) because of the following reason:
Then finally, in the case of Bhasin Infotech case, a two judge bench of the Supreme Court observed that there is an apparent conflict between the decisions of this Court in Topline Shoes Ltd. v. Corporation Bank , Kailash v. Nanhku, Salem Advocate Bar Assn. (2) v. Union of India on the one hand and J.J. Merchant v. ShrinathChaturvedi and New India Assurance Co. Ltd. v. Hilli Multipurpose Cold Storage (P) Ltd. on the other insofar as the power of the courts to extend time for filing of written statement/reply to a complaint is concerned. Therefore, the court observed that it would be more appropriate if the conflict were resolved by an authoritative judgment. Further, since the conflict was between conflicting judgments of co-equal benches i.e. comprising three Judges, they deem it fit to refer these appeals to a five-Judge Bench to resolve the conflict once and for all. They also noted that while they refer this to three judge bench they are mindful of the fact that in the ordinary course, a two-Judge Bench ought to make a reference to a three-Judge Bench in the first place but in the facts and circumstances of the case and keeping in view the fact that the conflict is between coordinate Benches comprising three Judges, a reference to three-Judge Bench may not suffice. Therefore, the matter shall be referred to five-judge bench.
The Supreme Court in the instant case has held that Section 13 (2) of the Act is mandatory and no extension of time can be granted over and above the time period of 45 days. The following points briefly encapsulate the reasoning given by the five judges to arrive at the following conclusion:
(3) No proceedings complying with the procedure laid down in sub-sections (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.
It has been noted that 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 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. Thus this provision of Section 13(3) reinforces the time limit of 45 days specified in Section 13(2)(a) of the Act.
15. Appeal.—Any person aggrieved by an order made by the District Forum may prefer an appeal against such order to the State Commission within a period of thirty days from the date of the order, in such form and manner as may be prescribed:
Section 15 of the Act provides for filing of an appeal from the order of the District Forum to the State Commission within a period of 30 days.
However, it leaves discretion with the State Commission to entertain an appeal filed after the expiry of the said period of 30 days, if it is satisfied that there was sufficient cause for not filing it within the stipulated period. Similarly, discretion for filing anappeal before the National Commission beyond the period of 30 days has also been provided under Section 19 of the Act. There is a clear departure in the language of Section 13(2)(a), 15 and 19 of the Act. It is evident that discretion has been provided to the forum in cases of appeal. However, no such discretion has been provided when it comes to filing the reply by the opposite party beyond the specified period of 45 days.
Though the Court has settled the law here, one point which comes to our mind which should have been considered by the bench is the fact that although Sub-section (2)(b)(ii) of Section 13 of the Act talks about ex-parte proceedings, the entire Act does not explicitly give an impression of forfeiture of the right of the Opposite party to file its reply when we compare this with the language which has been used in the Commercial Courts Act. Detailed consideration of this point would have been necessary because of the fact that under the Commercial Courts Act, no extension beyond the statutory time period is possible as the Court do not have the power to grant an extension as the Parliament has deliberately provided that in case of failure to file the Written Statement, the right of the Defendant to file its Written Statement is forfeited and even the Court cannot allow the Written Statement to be taken on record. The relevant provision has been reproduced herein below:
"Provided further that where the defendant fails to file the written statement within the said period of thirty days, he shall be allowed to file the written statement on such other day, as may be specified by the Court, for reasons to be recorded in writing and on payment of such costs as the Court deems fit, but which shall not be later than one hundred twenty days from the date of service of summons and on expiry of one hundred twenty days from the date of service of summons, the defendant shall forfeit the right to file the written statement and the Court shall not allow the written statement to be taken on record"
Therefore, in the absence of such a provision which curtails the power of the forum to given any further extension can we really say that Section 13 (2)(a) of the Act is mandatory or directory?
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