Full Judgment Text
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* IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of Decision: 01.03.2021
+ CM(M) 285/2019 & CM Nos.7907/2019, 42712/2019
MANISH KUMAR ..... Petitioner
Through: Ms.Sneha Kohli, Ms.Niharika
Ahluwalia, Advs.
(Mob. No.9650149321).
versus
ALL INDIA INSTITUTE OF MEDICAL
SCIENCES & ORS ..... Respondents
Through: Mr.Anuj Jain, Adv. for R-1.
(Mob.No.9212196159).
Mr.Kunal Chatterji, Mr.Saurav Gupta,
Mr. Pravar Veer Misra,Advs. for R-2.
Mr. Maibam N. Singh, Adv for R-3.
Mr. Shaurya Sahay, Adv for R-4.
Mr.S.N.Shukla and Mr.Shivendra
Singh, Advs. for R-7
CORAM:
HON'BLE MR. JUSTICE NAVIN CHAWLA
NAVIN CHAWLA, J. (Oral)
1. The learned counsel for the petitioner submits that as the
present petition is directed only against the respondent no.1 and no
relief has been claimed against the respondent nos. 5 and 6 in the
present petition, the adjudication of the present petition need not await
the service of notice of the petition on the respondent nos. 5 and 6 and
they be treated as deleted from the array of the parties as far as the
present petition is concerned. It is ordered accordingly.
CM(M)285/2019 Page 1
2. This petition has been filed challenging the order dated
25.01.2019 passed by the learned National Consumer Dispute
Redressal Commission (hereinafter referred to as the ‘learned
Commission’) in Consumer Complaint No.261/2018, Manish Kumar
v. All India Institute of Medical Sciences & 6 Ors. , allowing the
respondent no. 1, which is the Opposite Party no.1 in the Consumer
Complaint, to file its written version to the Complaint.
3. The learned counsel for the petitioner submits that notice of the
complaint was issued to the respondents, including the respondent
no.1 on 07.02.2018. The respondent no. 1 was duly served with the
notice on 12.04.2018. The statutory period for filing of the reply to the
complaint as provided in Section 13 of the Consumer Protection Act,
1986 (hereinafter referred to as ‘the Act’), including the maximum
condonable period of delay, had expired on 03.07.2018, when the
complaint was listed before the learned Commission. In spite of the
same, the learned Commission condoned the delay in filing of the
reply by the respondent no. 1 and extended the time by a period of one
week therefrom. The written version of the respondent no. 1 was,
however, still not filed.
4. The complaint was then listed before the learned Commission
on 31.08.2018, when recording the undertaking of the learned counsel
for the respondent no. 1 that the written version would be filed during
the course of the day, the learned Commission was pleased to again
condone the delay, directing that a cost of Rs. 25,000/- be paid to the
CM(M)285/2019 Page 2
complainant by way of a Demand Draft within a period of four weeks
therefrom.
5. As neither the written version was filed nor the cost was paid,
on an application of the petitioner, being IA 19048/2018, the learned
Commission by its order dated 12.10.2018 was pleased to close the
right of the respondent no. 1 to file its written version.
6. On 25.01.2019, however, by the Impugned Order, which is non-
speaking in nature the learned Commission has been pleased to
condone the further delay in filing of the written version; reviewed its
order dated 12.10.2018; and allowed further opportunity to the
respondent no. 1 to file its written version.
7. The learned counsel for the petitioner submits that the order of
the Commission, apart from being legally unsustainable on the ground
that the learned Commission has no power to condone the delay once
the statutory period including the maximum permissible period by
which the delay in filing written version can be condoned has expired,
does not record any reason for condoning the delay. She submits that
the Impugned Order has also been passed without supplying a copy of
the application, if any, by the respondent no. 1 seeking condonation of
delay/review of the order dated 12.10.2018 filed by the respondent no.
1. In support of her submissions, she has placed reliance on the
judgment of Supreme Court in New India Assurance Company Ltd.
v . Hilli Multipurpose Cold Storage Pvt. Ltd. , (2020) 5 SCC 757; and
Daddy’s Builders Pvt. Ltd. and Anr. v . Manisha Bhargava and Anr. ,
2021 SCC OnLine SC 82.
CM(M)285/2019 Page 3
8. The learned counsel for the petitioner further submits that the
respondent no. 1 could also not have taken the benefit of the pendency
of the reference before the Constitution Bench of the Supreme Court
in New India Assurance Co. Ltd. (supra), inasmuch as, the Supreme
Court in Reliance General Insurance Co. Ltd. and Ors. v. Mampee
Timbers and Hardwares Pvt. Ltd. and Ors., 2017 SCC OnLine SC
2027 had placed reliance on the earlier order of Bhasin Infotech and
Infrastructure (P) Ltd. v. Grand Venezia Buyers Assn., (2018) 17
SCC 255, wherein it had been clarified that pending the reference,
though the Commission may condone the delay in appropriate cases,
such condonation shall be subject to the consent of the complainant.
In the present case, apart from the fact that there was no sufficient
cause made out by the respondent no. 1 for seeking condonation of
delay, even otherwise, the petitioner/complainant not having accepted
the order passed by the learned Commission condoning the delay, no
benefit of the pendency of the reference before the Constitution Bench
of the Supreme Court can be granted to the respondent no. 1.
9. Answering the objection of the learned counsel for the
respondent of the petition being not maintainable in view of the
availability of an alternate efficacious remedy in form of a review to
the Commission itself or an appeal to the Supreme Court, the learned
counsel for the petitioner submits that the power of the Constitutional
Court cannot be curtailed.
CM(M)285/2019 Page 4
10. On the other hand, the learned counsel for the respondent no. 1
has challenged the maintainability of the present petition on the
ground of availability of alternate efficacious remedy in form of a
Review Petition before the learned Commission under Section 22(2)
of the Act as also in form of an appeal before the Supreme Court
under Section 23 of the Act.
11. On merit, the learned counsel for the respondent no. 1 submits
that by an order dated 31.08.2018, the learned Commission while
granting time to the respondent no. 1 to file its written version, had
adjourned the complaint to 25.01.2019. In the integrum, the petitioner
had filed the application being IA 19048/2018 seeking closure of the
right of the respondent no. 1 to file its written version. Without issuing
any notice on the said application to the respondent no. 1 and in the
absence of the counsel for the respondent no. 1, the learned
Commission on 12.10.2018 went on to close the rights of the
respondent no. 1 to file its written version. The respondent no. 1 came
to know of the said order only on receiving a communication of the
said order from the learned Commission pursuant to the directions of
the learned Commission itself as contained in its order dated
12.10.2018. The respondent no. 1 thereafter paid the cost as was
imposed by the learned Commission in its order dated 31.08.2018 to
the petitioner; changed the counsel representing the respondent no. 1
before the learned Commission; and without any further delay
prepared its written version to be filed before the learned Commission.
He submits that on 25.01.2019, the respondent no. 1 handed across its
CM(M)285/2019 Page 5
written version alongwith the application seeking condonation of
delay in filing the same to the learned Presiding Member of the
Commission, who in turn, having perused the same, was pleased to
condone the delay in filing of the written version of the respondent no.
1 by the Impugned Order.
12. The learned counsel for the respondent no. 1 submits that the
application that was handed across the bar to the learned Presiding
Member to the learned Commission had explained in detail the
reasons for seeking condonation of delay in filing of the written
version by the respondent no. 1. The learned Commission having
perused the same and exercised its discretion in condoning the delay,
this Court could not interfere with the same in exercise of the powers
under Article 227 of the Constitution of India. He submits that even
otherwise the respondent no. 1 being a public institution deserves the
delay to be condoned by the learned Commission and in equity the
delay was rightly condoned by the learned Commission. In judging the
equity, the fact that the respondent no. 1 has already released an ex
gratia payment of Rs.10 lakhs to the petitioner even before the filing
of the consumer complaint should also weigh with this Court.
13. I have considered the submissions made by the learned counsels
for the parties.
14. It is not denied by the respondent no. 1 that the period
prescribed under Section 13(2)(a) of the Act including the maximum
period of the delay that can be condoned by the learned Commission
in filing of the written version by the respondent no. 1 had already
CM(M)285/2019 Page 6
expired on 03.07.2018 when the learned Commission, exercising its
discretion, had granted a weeks’ further time to the respondent no. 1 to
file its written version. By the subsequent order dated 31.08.2018, the
undertaking of the learned counsel for the respondent no. 1 was
recorded to the effect that the written version of the respondent no. 1
shall be filed during the course of the day. The learned Commission
directed that the respondent no. 1 should also pay cost of Rs.25,000/-
for the delay caused in the adjudication of the complaint.
15. Inspite of the above order, neither the written version was filed
by the respondent no. 1 nor the cost was paid.
16. In Bhasin Infotech and Infrastructure (P) Ltd. (supra), the
Supreme Court by its interim order dated 11.02.2016 had allowed the
appellant company therein to file its written version before the
Consumer Forum subject however to the condition that the
complainant is ready and willing to take the proceedings forward on
the condition mentioned therein. Placing reliance on the said order, the
Supreme Court in Reliance General Insurance Co. Ltd. and Ors.
(supra) has observed as under:-
“8. We consider it appropriate to direct that pending
decision of the larger bench, it will be open to the
concerned Fora 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.”
(Emphasis supplied)
CM(M)285/2019 Page 7
17. The reference was thereafter answered by the Supreme Court in
its judgment in New India Assurance Co. Ltd. (supra), affirming its
earlier judgment in Dr. J. J. Merchant and Ors. v. Shrinath
Chaturvedi, (2002) 6 SCC 635, and holding that the time prescribed in
Section 13(2)(a) of the Act is mandatory and 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
envisaged under Section 13 of the Act. The said judgment was,
however, made prospectively applicable.
18. The prospective application of the said judgment was also
considered by the Supreme Court in Daddy’s Builders Pvt. Ltd. and
Ors (supra).
19. As far as the facts of the present case are concerned, as noted
hereinabove, time for filing of the written version by the respondent
no. 1 was extended on 03.07.2018. The same was thereafter extended
on 31.08.2018 on a submission made by the respondent no. 1 that the
written version will be filed during the course of the day. Admittedly,
the same was not filed even thereafter. It was only on 12.10.2018 that
the right of the defendant no. 1 to file its written version was forfeited
by the learned Commission. There is no application filed by the
respondent no. 1 seeking review of that order. The said order could not
have been reviewed thereafter only on an application, if at all filed by
the respondent no. 1 seeking condonation of delay in filing of the
written version.
CM(M)285/2019 Page 8
20. Even in the application seeking extension of time to file of
written version on record, the respondent no. 1 has not explained the
delay between 12.04.2018 till 12.10.2018 in filing of the same. The
explanation has been rendered only thereafter and, in fact, only from
the time that it was communicated the order dated 12.10.2018.
21. Delay in filing of the written version cannot be condoned on the
mere asking. In the present case, the Impugned Order does not reflect
the application of mind by the learned Commission to the reasons
attributed by the respondent no. 1 for seeking condonation of delay in
filing the written version. Therefore, apart from the statutory bar that
restricts the power of the learned Commission to condone the delay in
filing of the written version, there is also no reason given by the
learned Commission in the Impugned Order for condoning the delay.
22. Though the learned counsel for the respondent submits that no
prejudice would be caused to the petitioner if the delay is condoned
inasmuch as the case had not proceeded between 12.10.2018 to
25.01.2019 in any substantive manner, I do not find the same to be a
sufficient reason to condone the delay which otherwise was not
condonable, or for the learned Commission to review an order for
which no review was prayed for.
23. The prospective application of the judgment of the Supreme
Court in New India Assurance (Ltd.) (supra) will also not come to the
aid of the petitioner inasmuch as the respondent never accepted the
order passed by the learned Commission and in fact immediately
challenged the same before this court by way of the present petition.
CM(M)285/2019 Page 9
24. The fact of payment of the cost by the respondent is also of no
assistance to the respondent in the present case inasmuch as the cost
was paid only on 13.11.2018, which was also beyond the period as
directed by the learned Commission in the order dated 31.08.2018.
25. Even equity cannot come to the aid of the respondent no. 1.
The respondent no. 1 having failed to file its written version within the
time prescribed and even after having availed of further opportunities
given by the learned Commission, cannot claim such equity.
26. As far as the maintainability of the present petition is
concerned, the impugned order being without jurisdiction and in teeth
of Section 13 of the Act, availability of an alternate remedy cannot be
a bar to the present petition being entertained by this court.
27. In view of the above, the Impugned Order dated 25.01.2019 of
the learned Commission insofar as it allows the written version of the
respondent no. 1 to be taken on record is set aside. The written version
filed by the respondent no. 1 shall be not taken on record by the
learned Commission. This would however, not prejudice the
respondent no. 1 in its future defence in the consumer complaint, in
accordance with the law.
28. The petition is allowed in the above terms. There shall be no
order as to cost.
NAVIN CHAWLA, J
MARCH 1, 2021/NS/Arya
CM(M)285/2019 Page 10