NEW INDIA ASSURANCE CO. LTD vs. HILLI MULTIPURPOSE COLD STORAGE PVT LTD

1 REPORTABLE

CIVIL APPEAL NOS.10941-10942 OF 2013 NEW INDIA ASSURANCE CO. LTD. .....APPELLANT VERSUS HILLI MULTIPURPOSE COLD STORAGE PVT. LTD. …..RESPONDENT WITH C A NOS.10943-10944 OF 2013, C.A. NO.1774 OF 2014, SLP (C) NO.2833 OF 2014 & SLP (C) Nos.11257-11258 OF JUDGMENT 2014. J U D G M E N T ANIL R. DAVE, J. 1. While considering Civil Appeal No.D 35086 of 2013, this Court expressed its doubt in relation to the period of limitation Page 1 2 for filing the written statement or giving version of the opponent as per the provisions of Section 13(2)(a) of the

JUDGMENT 2. Learned Attorney General points out that the judgment in Dr. J.J. Merchand & Ors. vs. Shrinath Chaturvedi, reported in [2002(6) SCC 635], has been considered and a different view has been taken in Kailash vs. Nanhku & Ors., reported in [2005(4) SCC 480], on the issue of limitation. The matters, therefore, require consideration. 3. Delay condoned. 4. The appeals are admitted. Page 2 3 5. Since this point of law requires to be resolved, we request the Hon’ble the Chief Justice to place these appeals before a larger Bench …………………”

been placed before this three-Judge Bench so as to ascertain whether the law laid down in the case of Dr. J.J. Merchant (supra) still holds the field or whether the law has been changed in view of the later judgment delivered by this Court in the case of Kailash (supra) . 3. The whole issue centers round the period within which the opponent has to give his version to the District Forum in pursuance of a complaint, which is admitted under Section 12 JUDGMENT of the Act. Upon receipt of a complaint by the District Forum, if the complaint is admitted under Section 12 of the Act, a copy of the complaint is to be served upon the opposite party and as per provisions of Section 13 of the Act, the opposite party has to give his version of the case within a period of 30 days from the date of receipt of the copy of the complaint. Page 3 4 There is a further provision in Section 13(2)(a) that the District Forum may extend the period, not exceeding 15 days, to the

the Act reads as under: “13. Procedure on admission of complaint – (1) ……………………. (2) The District Forum shall, if the complaint admitted by it under section 12 relates to goods in respect of which the procedure specified in sub- section (1) cannot be followed, or if the complaint relates to any services, - (a) 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; (b) ………………………………………………………….” JUDGMENT Thus, upon plain reading of the aforestated Section, one can find that the opposite party is given 30 days’ time for giving his version and the said period for filing or giving the version can be extended by the District Forum, but the extension should not exceed 15 days. Thus, an upper cap of Page 4 5 45 days has been imposed by the Act for filing version of the opposite party.

(supra) whether the Forum can grant time beyond 45 days to the opposite party for filing its version. After considering the aforestated section in the light of the object with which the Act has been enacted, a three-Judge Bench of this Court came to the conclusion that in no case period beyond 45 days can be granted to the opposite party for filing its version of the case. 5. Without discussing the aforestated three-Judge Bench Judgment in detail, we now turn to another judgment which JUDGMENT has been referred to by the referring Bench. The other judgment which has been referred to is Kailash (supra), which pertains to Election Law. The issue involved in the said case was whether time limit of 90 days, as prescribed by the proviso to Rule 1 of Order 8 of the Civil Procedure Code, is mandatory or directory in nature. The said issue had arisen in an election matter where the written statement was not filed Page 5 6 by the concerned candidate within the period prescribed under the relevant Election Law and the issue was whether in the

could have been condoned. 6. After considering the provisions of Order VIII Rule 1 of the Code of Civil Procedure, 1908 and several other judgments pertaining to grant of time or additional time for filing written statement or reply, in the interest of justice, this Court came to the conclusion that the provisions of Order VIII Rule 1 C.P.C. are not mandatory but directory in nature and therefore, in the interest of justice, further time for filing reply can be granted, if the circumstances are such that require JUDGMENT grant of further time for filing the reply. 7. The judgment delivered in the case of Kailash (supra) is later in point of time and while considering the said judgment, judgment delivered in the case of Dr. J.J. Merchant (supra) had also been considered by this Court. Page 6 7 8. In the aforestated circumstances, we have now to consider whether in a case under the provisions of the Act,

not filed its version to the case within 30 days or within extended period of 45 days, which at the most could have been granted by the District Forum, the version given by the opposite party can be accepted. 9. The learned counsel appearing for the complainant submitted that the view expressed by the three-Judge Bench of this Court in Dr. J.J. Merchant (supra) is absolutely just and proper and is on the subject, with which facts of the present case are concerned. The said case also deals with the JUDGMENT provisions of Section 13(2)(a) of the Act, whereas case of Kailash (supra) pertains to an Election trial and under a different Act. 10. According to the learned counsel appearing for the complainant, in the instant case, in fact, there is no conflict between the two judgments referred to hereinabove as the Page 7 8 judgment delivered in Dr. J.J. Merchant (supra) was prior in time and was on the subject of the Act. Looking at the

judgment also pertains to the provisions with regard to grant of time for filing version of the opposite party before the District Forum. Once a judgment has been delivered by a three-Judge Bench on the same subject and on the same section, according to the learned counsel, there was no need to re-consider the same. 11. On the other hand, the learned counsel appearing for the other side contended that as per the view expressed in the case of Kailash (supra) , the District Forum can grant time JUDGMENT beyond 15 days to the other side for giving its version or reply. The learned counsel submitted that the marginal note to Section 13 of the Act reads “procedure on completion of complaint’. Thus, the provisions incorporated in Section 13 of the Act are merely procedural and are directory in nature, as observed by this Court in the case of Kailash (supra) . Page 8 9 12. The learned counsel also referred to a judgment delivered in the case of Topline Shoes Ltd. v. Corporation Bank

in the aforestated case. After discussing the provisions of Section 13(2) of the Act, this Court came to the conclusion that procedural rules should not be considered as mandatory in nature. In the said case, ultimately, this Court came to the conclusion that provision contained in Section 13(2)(a) of the Act is procedural in nature. According to the said judgment, the object behind enactment of the Act is speedy disposal of cases pending before the District Forum and therefore, it has been provided that reply should be filed within 30 days and JUDGMENT the extension of time may not exceed 15 days. It has been further observed that no penal consequences have been provided in the case of extension of time beyond 15 days and therefore, the said provision with regard to extension of time beyond a particular limit is directory in nature and that would not mean that extension of time cannot exceed 15 days. Page 9 10 Relying upon the said judgment and the judgment delivered in the case of Kailash (supra) , the learned counsel submitted that as Dr. J.J. Merchant (supra) has not been followed in a later case though it was considered in the case of Kailash (supra) , the correct legal position would be to treat the said provision with regard to maximum period for filing the reply is directory and not mandatory. 13. The learned counsel further submitted that some of the provisions of Civil Procedure Code do apply to the District Forum and in the light of the said fact, in his submission, the provisions of Section 13(2)(a) of the Act are merely directory and not mandatory in nature. JUDGMENT 14. The learned counsel also submitted that if further time is not granted, irreparable damage would be caused to the other side and in a case where the other side/respondent is staying at a distant place, it might not be possible for the respondent/other side to file its version even within 45 days Page 10 11 and therefore, in the interest of justice, the view expressed in the case of Kailash (supra) should be accepted.

both the judgments referred to hereinabove, which pertain to extension of time for the purpose of filing written statement, we are of the opinion that the view expressed by the three- Judge Bench of this Court in Dr. J.J. Merchant (supra) should prevail. 16. In the case of Dr. J.J. Merchant (supra) , which is on the same subject, this Court observed as under: “13. The National Commission or the State Commission is empowered to follow the said procedure. From the aforesaid section it is apparent that on receipt of the complaint, the opposite party is required to be given notice directing him to give his version of the case within a period of 30 days or such extended period not exceeding 15 days as may be granted by the District Forum or the Commission. For having speedy trail, this legislative mandate of not giving more than 45 days in submitting the written statement or the version of the case is required to be adhered to. If this is not adhered to, the legislative mandate of JUDGMENT Page 11 12 disposing of the cases within three or five months would be defeated.

“1. Written statement. – The defendant shall, within thirty days from the date of service of summons on him, present a written statement of his defence: Provided that where the defendant fails to file the written statement within the said period of thirty days, he shall be allowed to file the same on such other day, as may be specified by the court, for reasons to be recorded in writing, but which shall not be later than ninety days from the date of service of summons.” 15. Under this Rule also, there is a legislative mandate that written statement of defence is to be filed within 30 days. However, if there is a failure to file such written statement within the stipulated time, the court can at the most extend further period of 60 days and no more. Under the Act, the legislative intent is not to give 90 days of time but only maximum 45 days for filing the version of the opposite party. Therefore, the aforesaid mandate is required to be strictly adhered to.” JUDGMENT 17. We are, therefore, of the view that the judgment delivered in the case of Dr. J.J. Merchant (supra) holds the field and Page 12 13 therefore, we reiterate the view that the District Forum can grant a further period of 15 days to the opposite party for filing

18. There is one more reason to follow the law laid down in the case of Dr. J.J. Merchant (supra) . Dr. J.J. Merchant (supra) was decided in 2002, whereas Kailash (supra) was decided in 2005. As per law laid down by this Court, while deciding the case of Kailash (supra) , this Court ought to have respected the view expressed in Dr. J.J. Merchant (supra) as the judgment delivered in the case of Dr. J.J. Merchant (supra) was earlier in point of time. The aforestated legal position cannot be ignored by us and therefore, we are of the JUDGMENT opinion that the view expressed in Dr. J.J. Merchant (supra) should be followed. 19. Our aforestated view has also been buttressed by the view expressed by this Court in the case of Central Board of Dawoodi Bohra Community & Anr. v. State of Maharashtra & Anr. [(2005) 2 SCC 673], wherein a question Page 13 14 had arisen whether the law laid down by a Bench of a larger strength is binding on a subsequent Bench of lesser or equal

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20. In view of the aforestated clear legal position depicted by a five-Judge Bench, the subject is no more res integra . Not only this three-Judge Bench, but even a Bench of coordinate strength of this Court, which had decided the case of Kailash Page 15 16 (supra) , was bound by the view taken by a three-Judge Bench in the case of Dr. J.J. Merchant (supra) .

view that the law laid down by a three-Judge Bench of this Court in the case of Dr. J.J. Merchant (supra) should prevail. The Reference is answered accordingly. ………................................J. (ANIL R. DAVE) ………................................J. (VIKRAMAJIT SEN) JUDGMENT ……….................................J. (PINAKI CHANDRA GHOSE) NEW DELHI DECEMBER 04, 2015. Page 16