Full Judgment Text
NON-REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO(S). 73-74 OF 2021
Bhasin Infotech And
Infrastructure Private Limited ……Appellant(s)
Versus
Neema Agarwal & Ors. …. Respondent(s)
ORDER
These Civil appeals arise out of a decision of the National
Consumer Dispute Redressal Commission (NCDRC) delivered on
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19 November, 2020 dismissing an interim application of the
appellants for filing written submission or reply to a consumer
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complaint. The complaint was made on 15 March, 2018 by the
respondents alleging deficiency in service on the part of the
appellants over cancellation of allotment of certain commercial
units in a shopping mall. Notice was issued by the NCDRC to the
application of the respondents under Section 12 (1)(c) of the
Consumer Protection Act, 1986 (which statute prevailed at the
Signature Not Verified
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material point of time). On 18 April, 2019, when the matter was
Digitally signed by
DEEPAK SINGH
Date: 2021.12.08
14:42:55 IST
Reason:
listed before the Commission, the appellants (respondents before
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the Commission) sought a week’s time to reply. On 23 December
2019, the appellants filed reply to the application made under
Section 12(1)(c) of the 1986 Act. That application, in substance,
was to make the complaint in representative capacity. This
application was allowed. The Commission had directed the
appellants to file reply to the amended complaint within 30 days.
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The matter was adjourned till 21 May, 2020. The written
submission was filed by the appellant to the consumer complaint
along with an application for condonation of delay of 18 days in
filing the written submission. There is some dispute over the
actual number of days of delay, but that factor is not of much
significance so far as the present appeal is concerned. Admitted
position is that such delay was beyond the period of 45 days,
which is the prescribed period within which a reply has to be filed
in terms of Section 13(2)(a) read with Section 18 of the 1986 Act.
There were certain other interlocutory orders passed in the
matter, but these are not of much relevance for adjudication of
the issues raised in the present Appeals.
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2. By an order passed on 19 November, 2020, the
Commission rejected the appellant’s application for condonation
of delay, following a Constitution Bench decision of this Court
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delivered in a reference, titled New India Assurance Company
Limited vs. Hilli Multipurpose Cold Storage Pvt. Ltd. [(2020) 5
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SCC 757]. In that Judgment decided on 4 March, 2020 and
authored by one of us (Vineet Saran, J), two questions were
formulated by the Constitution Bench. These were:-
“(i) Whether the District Forum has power to extend
the time for filing of response to the complaint beyond
the period of 15 days, in addition to 30 days, as
envisaged Under Section 13(2)(a) of the Consumer
Protection Act?
(ii) What would be the commencing point of limitation of 30
days Under Section 13 of the Consumer Protection Act,
1986?”
The Constitution Bench answered these questions in the
said judgment in following terms:-
“41.To conclude, we hold that our answer to the first
question is that the District Forum has no power to
extend the time for filing the response to the complaint
beyond the period of 15 days in addition to 30 days as
is envisaged Under Section 13 of the Consumer
Protection Act; and the answer to the second question
is that the commencing point of limitation of 30 days
Under Section 13 of the Consumer Protection Act would
be from the date of receipt of the notice accompanied
with the complaint by the opposite party, and not mere
receipt of the notice of the complaint.
This Judgment to operate prospectively.
The referred questions are answered accordingly.”
3. We would repeat here that the timeframe for filing written
submission or reply is the same in respect of original complaints
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in all the three fora constituted under the 1986 Act, as per Section
18 thereof. In these appeals, we are concerned with the first
question formulated by the Constitution Bench. This question was
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referred to by a two Judge Bench of this Court on 11 February,
2016 in a Civil Appeal of the same appellants only. Subsequent to
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the reference order dated 11 February, 2016, the question of
jurisdiction of the consumer fora for extending time to file reply to
complaint beyond stipulated period of 45 days came up for
hearing before a Coordinate Bench in the case of Reliance
General Insurance Company Limited and Another vs. Mampee
Timbers and Hardwares Private Limited and Another [(2021) 3
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SCC 673]. This order was passed on 10 February, 2017. At that
point of time, the issue was pending for decision before the
Constitution Bench. The Coordinate Bench in the said order of
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10 February, 2017, observed and directed:-
“5. We consider it appropriate to direct that pending
decision of the larger Bench, it will be open to the Fora
concerned to accept the written statement filed beyond
the stipulated time of 45 days in an appropriate case,
on suitable terms, including the payment of costs, and
to proceed with the matter.”
4. Another Bench of equal strength had examined the same
point in the case of Daddy’s Builders Private Limited and
Others vs. Manisha Bhargava and Others [(2021) 3 SCC 669].
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In that case, the State Commission, by an Order dated 26
September, 2018 had rejected an application filed by the
applicants therein, i.e. Daddy’s Builders Private Limited (supra)
seeking condonation of delay in filing reply to the consumer
complaint beyond the period of 45 days. The appeal against the
order of rejection before the National Commission was also
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dismissed on 4 September, 2020. The petitioners came with
further appeal before this Court. The appellants in that case
pegged their argument on the observation made in the last
paragraph of the Constitution Bench judgment that the said
judgment would be applicable prospectively. The appellants in
that proceeding wanted to construe prospective operation of the
judgment to mean that the view of the Constitution Bench against
condonation of delay in filing reply beyond 45 days was not to be
made applicable to the complaints filed before the respective fora
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before 4 March, 2020. The order of the Coordinate Bench in the
case of Reliance General Insurance Company Limited (supra)
was also referred to in support of the contention of the appellants.
5. The Coordinate Bench in the case of Daddy’s Builders
Private Limited (supra) did not accept the argument of the
appellants that the ratio of the Constitution Bench would not
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apply to complaints filed before the date of the Constitution Bench
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judgment i.e. 4 March, 2020. It has been observed in the case of
Daddy’s Builders Private Limited (supra):-
“4. Having heard learned Counsel appearing on behalf
of the Petitioners and so far as the question whether
the date on which the State Commission passed the
order, then on that date, whether the State Commission
has the power to condone the delay beyond 45 days for
filing the written statement Under Section 13 of the Act
is concerned, as such, the said issue whether the State
Commission has the power to condone the delay
beyond 45 days is now not res integra in view of the
Constitution Bench decision of this Court in the case of
New India Assurance Company Limited v. Hilli
Multipurpose Cold Storage Pvt. Ltd. reported in (2020)
5 SCC 757. However, it is submitted by the learned
counsel appearing on behalf of the petitioners that as
in paragraph 63 it is observed that the said judgment
shall be applicable prospectively and therefore the said
decision shall not be applicable to the complaint which
was filed prior to the said judgment and/or the said
decision shall not be applicable to the application for
condonation of delay filed before the said decision.
5. However, the aforesaid cannot be accepted. It is
required to be noted that as per the decision of this
Court in J.J. Merchant v. Shrinath Chaturvedi,
reported in (2002) 6 SCC 635, which was a three Judge
Bench decision, consumer fora has no power to extend
the time for filing a reply/written statement beyond the
period prescribed under the Act. However, thereafter,
despite the above three Judge Bench decision, a
contrary view was taken by a two Judge Bench and
therefore the matter was referred to the five Judge
Bench and the Constitution Bench has reiterated the
view taken in J.J. Merchant (supra) and has again
reiterated that the consumer fora has no power and/or
jurisdiction to accept the written statement beyond the
statutory period prescribed 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 Insurance Co.
Ltd. reported in (2021) 3 SCC 673 dated 10.02.2017,
pending the decision of the larger Bench, in some of the
cases, the State Commission might have condoned the
delay in filing the written statement filed beyond the
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stipulated time of 45 days and all those orders
condoning the delay and accepting the written
statements shall not be affected, this Court observed in
paragraph 63 that the decision of the Constitution
Bench shall be applicable prospectively. We say so
because one of us was a party to the said decision of
the Constitution Bench.
6. Now so far as the reliance placed upon the order
passed by this Court dated 10.02.2017 in Reliance
General Insurance Co. Ltd. (supra) is concerned, the
same has been dealt with in detail by the National
Commission by the impugned order while deciding the
first appeal. As rightly observed by the National
Commission, there was no mandate that in all the
cases, where the written statement was submitted
beyond the stipulated period of 45 days, the delay must
be condoned and the written statement must be taken
on record. In order dated 10.02.2017, it is specifically
mentioned that it will be open to the Fora concerned to
accept the written statement filed beyond the stipulated
period of 45 days in an appropriate case, on suitable
terms, including the payment of costs and to proceed
with the matter. Therefore, ultimately, it was left to the
Fora concerned to accept the written statement beyond
the stipulated period of 45 days in an appropriate case.
7. As observed by the National Commission that despite
sufficient time granted the written statement was not
filed within the prescribed period of limitation.
Therefore, the National Commission has considered the
aspect of condonation of delay on merits also. In any
case, in view of the earlier decision of this Court in J.J.
Merchant (supra) and the subsequent authoritative
decision of the Constitution Bench of this Court in New
India Assurance Company Limited v. Hilli Multipurpose
Cold Storage Pvt. Ltd. (supra), consumer fora has no
jurisdiction and/or power to accept the written
statement beyond the period of 45 days, we see no
reason to interfere with the impugned order passed by
the learned National Commission.”
6. In a subsequent appeal, carrying the title Dr. A. Suresh
Kumar & Ors vs. Amit Agarwal (In Civil Appeal No. 988 of 2021
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decided on 8 July, 2021), the appellants had filed their reply with
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delay of seven days, beyond 45 days. The Commission, however,
had rejected the application for condonation of delay in filing
written statement in view of the Constitution Bench judgment. In
this judgment, a Bench having strength equal to ours, and to
which one of us (Vineet Saran, J) was a party, examined what
prospective operation of the Constitution Bench Judgment would
imply. It was, inter-alia, observed in this decision:
“In our view, since the application for condonation of
delay was filed prior to the judgment of the Constitution
Bench, which was delivered on 04.03.2020, the said
application for condonation of delay ought to have been
considered on merits and should not have been
dismissed on the basis of the Constitution Bench
judgment in the case of New India Assurance Co.
Limited (supra) because the said judgment was to
operate prospectively and the written statement as well
as the application for condonation of delay had been
filed much prior to the said judgment.”
7. The said appeal was disposed of with the following
observation and direction:-
“Having heard learned counsel for the parties and after
going through the record and for the reasons given in
the application for condonation of delay filed before the
NCDRC and also considering the fact that the delay was
only for 7 days for which valid explanation has been
given and with the consent of learned counsel for the
parties, we condone the delay of 7 days in filing the
reply by the appellants before NCDRC, but on payment
of cost of Rs.25,000/- (Rupees twenty five thousand
only). The said cost shall be paid by the appellants to
the respondent within 15 days from today. In case, the
said payment is not made, written statement already
filed by the appellants on 25.11.2019 shall not be
accepted. However, if the payment is made, the written
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statement shall be accepted by the NCDRC and every
effort shall be made by the NCDRC to decide the
complaint filed by the respondent as expeditiously as
possible, preferably within six months.”
8. Two contrary views have emerged as regards what would be
meant by the phrase….. “This judgment to operate prospectively”
mandated in the Constitution Bench judgment. In the case of
Daddy’s Builders Private Limited (supra), the application for
condonation of delay had been rejected by the State Commission
prior to the Constitution Bench opinion on the aspect of power
and jurisdiction of the consumer fora to condone delay beyond the
stipulated 45 days in filing written submission/reply. The appeal
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against that decision was rejected by the NCDRC on 4
September, 2020, following the Constitution Bench decision. On
prospective operation of the Constitution Bench Judgment,
opinion of the Coordinate Bench in the case of Daddy’s Builders
Private Limited (supra) was that the prospective operation of the
judgment would apply only in cases where delay stood condoned
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on a date prior to 4 March, 2020. In expressing this view, the
Coordinate Bench noted that one of the members of the Bench
was also a party to the said Constitution Bench decision. The
position, as regards composition of the Bench is similar in the
case of Dr. A. Suresh Kumar (supra) and in that judgment, a
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more liberal approach has been adopted. The prospectivity of the
Constitution Bench decision has been held to cover cases where
an application for condonation of delay was filed prior to the
judgment of the Constitution Bench, but whose outcome was yet
to be determined at the time the Constitution Bench judgment
was delivered.
9. In our view, the prospective operation of the Judgment in the
case of New India Assurance Company Limited (supra) ought to
cover both sets of the cases in which delay in filing written reply
stood condoned after accepting the application for condonation of
delay in filing written statement/reply as well as the cases where
the decision on condonation of delay in filing written replies were
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pending on 4 March, 2020. Once an application is filed for
condonation of delay, there may be cases where such applications
are decided upon on dates earlier than applications already filed
but yet to be determined. We do not have any laid down
administrative mechanism to decide in what manner applications
of this nature would be decided and the consumer fora or the
Courts apply their own discretion on the basis of various relevant
factors involved in individual cases, to prioritise their hearing. In
our opinion, it would be artificial distinction to distinguish
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between applications for condonation of delay already decided
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before 4 March, 2020 and the applications for condonation of
delay pending on that date. So far as persons with pending
applications for condonation of delay in filing written replies are
concerned, their right to have their applications for condonation
of delay in filing written replies to be considered, would stand
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crystallised on 4 March, 2020. Such right has also been
recognised in the case of Reliance General Insurance Company
Limited (supra). Such right could be extinguished only by specific
legal provisions. In the event the Constitution Bench judgment
had altogether negated the right to have delay in filing written
statement condoned beyond the period of 45 days, the right of
such applicants could stand extinguished. But as the judgment of
the Constitution Bench is to operate prospectively, in our
understanding of the said judgment, those with pending
applications for condonation of delay would retain their right to
have their applications considered. But we refrain from expressing
any definitive opinion on this point as the two Benches of equal
strength have taken differing views on the manner in which the
prospective application of the Constitution Bench judgment would
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be affected. In our opinion, this issue ought to be decided by a
larger Bench.
10. Accordingly, we direct the registry to place this order along
with the cause papers before Hon’ble the Chief Justice of India for
appropriate direction.
………………………..J.
(VINEET SARAN)
………………………..J.
(ANIRUDDHA BOSE)
NEW DELHI;
DECEMBER 06, 2021.
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