We reiterate the view that the District Forum can grant a further period of 15 days to the opposite party for filing his version or reply and not beyond that, the three Judge Bench of the Apex court said holding that the law laid down in Dr. J.J. Merchant case (2002) prevails over latter view taken in Kailash case (2005).
Three Judges Bench of Supreme Court, answering a reference to it in New India Assurance Co. Ltd. Vs. Hilli Multipurpose Cold Storage Pvt. Ltd., has reiterated that the District Consumer Forum can grant a further period of 15 days to the opposite party for filing his version or reply and not beyond that. The bench comprising of Justices Anil R. Dave, Vikramajit Sen and Pinaki Chandra Ghose, rejected the contention that the provisions of Section 13(2) (a) of the Consumer Protection Act are merely directory and not mandatory in nature.
The question referred
Whether the law relating to period of limitation infor filing the written statement or giving version of the opponent as per the provisions of Section 13(2) (a) of the Consumer Protection Act, 1986 was governed by the law laid down by this Court in Dr. J.J. Merchant & Ors. v. Shrinath Chaturvedi, [(2002) 6 SCC 635] or Kailash v. Nanhku & Ors. [(2005) 4 SCC 480] ?
Section 13(2) (a) of the Consumer Protection Act, 1986reads “The District Forum shall,………., 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”
Dr. J.J. Merchant Case(2002)
In this case, a three judge bench of Apex Court had held “there is legislative mandate to the District Forum or the Commissions to dispose of the complaints as far as possible within prescribed time of three months by adhering strictly to the procedure prescribed under the Act. The opposite party has to submit its version within 30 days from the date of the receipt of the complaint by him and Commission can give at the most further 15 days for some unavoidable reasons to file its version.”
Kailash case (2005)
In this case, another Three judges bench, held that limit of 90 days, as prescribed by the proviso to Rule 1 of Order 8 of the Civil Procedure Code, is not mandatory,but directory in nature, and further time for filing reply can be granted, if the circumstances are such that require grant of further time for filing the reply. In this case, Dr JJ Merchant case was also discussed and it was held that the observations made in that case, to the extent it deal with the Rule 1 of Order 8 of CPC was obiter.
Dr. J.J. Merchant case holds the field
The court said that since the issue discussed in Dr J.J. Merchant case is identical to the issue in the present case, it holds the field and not the latter view in Kailash case, since it deals with CPC provisions.
Earlier decision prevails
The court observed that Dr. J.J. Merchant case was decided in 2002, whereas Kailash case was decided in 2005 and as per law laid down by this Court, while deciding the case of Kailash, the Court (being it of the same strength) ought to have respected the view expressed in Dr. J.J. Merchant case as the judgment delivered in the case was earlier in point of time. The court said that this view, is supported by the dictum laid down in Central Board of DawoodiBohra Community &Anr. v. State of Maharashtra &Anr. [(2005) 2 SCC 673], by the Constitution bench of the Apex court, wherein it was held that a decision delivered by a Bench of larger strength is binding on any subsequent Bench of lesser or co-equal strength. Not only this three-Judge Bench, but even a Bench of coordinate strength of this Court, which had decided the case of Kailash, was bound by the view taken by a three-Judge Bench in the case of Dr. J.J. Merchant, the bench said.
Sundeep Kumar Bafna case
The view taken by the three Judge Bench in this case, strengthens the position of law of precedents, taken in Sundeep Kumar Bafna vs. State of Maharashtra, wherein it was held thus“It is often encountered in High Courts that two or more mutually irreconcilable decisions of the Supreme Court are cited at the Bar. We think that the inviolable recourse is to apply the earliest view as the succeeding ones would fall in the category of per incuriam.”
Read the Judgment here.