Assurance Co. Ltd. v. Hilli Multipurpose Cold Storage Pvt. Ltd.
VINEET SARAN, J.
1. Leave granted.
2. The reference made to this Constitution Bench relates to the
grant of time for filing response to a complaint under the provisions of
the Consumer Protection Act, 1986 (for short ‘the Act’). The first
question referred is as to whether Section 13(2)(a) of the Consumer
Protection Act, which provides for the respondent/opposite party filing
its response to the complaint within 30 days or such extended period, not
exceeding 15 days, should be read as mandatory or directory; i.e., whether
the District Forum has power to extend the time for filing the response
beyond the period of 15 days, in addition to 30 days. The second
question which is referred is as to what would be the commencing
point of limitation of 30 days stipulated under the aforesaid Section.
3. The first question was referred by a two judge Bench of this
Court vide an Order dated 1 1.02.2016 passed in Civil Appeal
No(s).1083-1084 of 2016, M/s Bhasin Infotech and Infrastructure
Pvt. Lt d. versus M/s Grand V enezia Buyers Association (Reg) , the
relevant portion of which is as under:
“Ther e is an appar ent conflict between the decisions of this
Court in T opline Shoes Limited vs. Corporation Bank [(2002)
6 SCC 33], Kailash Vs. Nankhu [(2005) 4 SCC 480], Salem
Advocate Bar Association Vs. Union of India [(2005) 6 SCC
344] on the one hand and J.J. Mer chant & Ors. Vs. Shrinath
Chaturvedi [(2002) 6 SCC 635 and NIA Vs. Hilli Multipurpose
Cold Storage [2014 AIOL 4615] on the other in so far as the
power of the Courts to extend time for filing of written
statement/r eply to a complaint is concerned. The earlier
mentioned line of decisions take the view that the r elevant
provisions including those of Or der 8 Rule 1 of the Civil
Procedure Code, 1908 ar e directory in natur e and the Cour ts
concerned have the power to extend time for filing the written
statement. The second line of decisions which ar e also of
coordinate Benches however takes a contrar y view and hold
that when it comes to power of the Consumer Fora to extend
the time for filing a r eply there is no such power .
NEW INDIA ASSURANCE CO. L TD. v. HILLI MUL TIPURPOSE
COLD ST ORAGE PVT. LTD.
Since the question that falls for determination her e often
arises befor e the Consumer Fora and Commissions all over
the country it will be more appropriate if the conflict is resolved
by an authoritative judgment. Further since the conflict is
between Benches comprising thr ee Judges we deem it fit to
refer these appeals to a five-Judge Bench to r esolve the
conflict once and for all. While we do so we ar e mindful of
the fact that in the or dinary course a two-Judge Bench ought
to make a r eference to a thr ee-Judge Bench in the first place
but in the facts and cir cumstances of the case and keeping in
view the fact that the conflict is between coor dinate Benches
comprising thr ee Judges a r eference to thr ee Judges may not
suffice.”
4. The other question has been referred by another Division Bench
of this Court by an Order dated 18.01.2017 passed in this very appeal
being Civil Appeal No(s).10941-10942 of 2013, NIA Vs. Hilli
Multipurpose Cold S torage Pvt. Lt d, the relevant portion of the
judgment is as under:
“……….what is the commencing point of the limitation of 30
days stipulated in Section 13 of the Act is r equir ed to be
decided authoritatively. The declaration made in JJ Mer chant’s
case that the said period is to be r eckoned fr om the date of
the r eceipt of the notice by the opposite par ty or complaint
under the Act requires in our humble opinion, a mor e critical
analysis.”
5. We have heard the learned Counsel for the parties at length
and have carefully gone through the records.
6. In the Statement of Objects and Reasons of the Consumer
Protection Act, in paragraph 4, it has been specifically provided that the
Consumer Protection Act is “ To provide speedy and simple r edressal
to consumer disputes, a quasi-judicial machinery is sought to be
set up at the district, S tate and Central levels…….” . The Preamble
of the Consumer Protection Act also mentions that the Act is “to pr ovide
for better pr otection of the inter ests of the consumers” . The
nomenclature of this Act also goes to show that it is for the benefit or
protection of the consumer . From the above, it is evident that the
Consumer Protection Act has been enacted to provide for expeditious
441
disposal of consumer disputes and that, it is for the protection and benefit
of the consumer.
7. Before we proceed to analyse and determine the questions
referred, we may, for ready reference, reproduce the relevant provisions
of the Consumer Protection Act and its Regulations.
“Section 13. Procedure on admission of complaint. –
(1) The District Forum shall, on admission of a complaint, if
it relates to any goods,-
(a) refer a copy of the admitted complaint, within twenty-one
days fr om the date of its admission to the opposite par ty
mentioned in the complaint dir ecting 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)………………….
(c)………………….
(d)………………….
(e)………………….
(f)………………….
(g)………………….
(2) The District Forum shall, if the complaints admitted by it
under section 12 r elates to goods in r espect of which the
procedure specified in sub-section (1) cannot be followed, or
if the complaint r elates to any ser vices,-
(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) wher e the opposite par ty, on r eceipt of a copy of the
complaint, referred to him under clause (a) denies or disputes
the allegations contained in the complaint, or omits or fails
to take any action to r epresent his case within the time given
NEW INDIA ASSURANCE CO. L TD. v. HILLI MUL TIPURPOSE
COLD STORAGE PVT. LTD. [VINEET SARAN, J.]
by the District For um, the District For um shall pr oceed to
settle consumer dispute,-
(i) on the basis of evidence br ought to its notice by the
complainant and the opposite par ty, where the opposite par ty
denies or disputes the allegations contained in the complaint,
or
(ii) ex par te on the basis of evidence br ought to its notice by
the complainant wher e the opposite par ty omits or fails to
take any action to r epresent his case within the time given by
the Forum;
(c) where the complainant fails to appear on the date of hearing
befor e the District For um, the District For um may either
dismiss the complaint for default or decide it on merits.
(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.
1[(3A) Every complaint shall be heard as expeditiously as
possible and endeavour shall be made to decide the complaint
within a period of three months from the date of receipt of
notice by opposite party where the complaint does not require
analysis or testing of commodities and within five months, if
it requires analysis or testing of commodities:
Provided that no adjournment shall be or dinarily
granted by the District Forum unless sufficient cause is shown
and the r easons for grant of adjournment have been r ecorded
in writing by the Forum:
Provided further that the District For um shall make such
orders as to the costs occasioned by the adjournment as may
be pr ovided in the r egulations made under this Act.
Provided also that in the event of a complaint being
disposed of after the period so specified, the District Forum
shall record in writing, the r easons for the same at the time of
disposing of the said complaint.]
1 Ins. by Act 62 of 2002, sec. 9 (w .e.f. 15-3-2003).
443
2[(3B) Wher e during the pendency of any pr oceeding befor e
the District For um, it appears to it necessar y, it may pass
such interim or der as is just and pr oper in the facts and
circumstances of the case.]
(4) For the purposes of this section, the District Forum shall
have the same powers as ar e vested in a civil cour t under
Code of Civil Pr ocedure, 1908 (5 of 1908) while tr ying a suit
in respect of the following matters, namely:—
(i) the summoning and enfor cing the attendance of any
defendant or witness and examining the witness on oath;
(ii) the discover y and pr oduction of any document or other
material object pr oducible as evidence;
(iii) the r eception of evidence on affidavits;
(iv) the r equisitioning of the r eport of the concerned analysis
or test fr om the appr opriate laborator y or fr om any other
relevant sour ce;
(v) issuing of any commission for the examination of any
witness, and
(vi) any other matter which may be pr escribed.
5……………….
6……………….
7……………….
Section 15.Appeal. — Any person aggrieved by an or der made
by the District For um may prefer an appeal against such or der
to the S tate Commission within a period of thir ty days fr om
the date of the or der, in such form and manner as may be
prescribed:
Provided that the S tate Commission may entert ain an
appeal after the expiry of the said period of thirty days if it is
satisfied that there was sufficient cause for not filing it within
that period;
NEW INDIA ASSURANCE CO. L TD. v. HILLI MUL TIPURPOSE
COLD STORAGE PVT. LTD. [VINEET SARAN, J.]
2 Ins. by Act 62 of 2002, Sec. 9 (w .e.f. 15-3-2003).
Provided fur ther that no appeal by a person, who is
required to pay any amount in terms of an or der of the District
Forum, shall be enter tained by the S tate Commission unless
the appellant has deposited in the pr escribed manner fifty
per cent. of that amount or twenty-five thousand rupees,
whichever is less.”
Section-19. Appeals.—Any person aggrieved by an or der made
by the S tate Commission in exer cise of its powers confer red
by sub-clause (i) of clause (a) of section 17 may pr efer an
appeal against such or der to the National Commission within
a period of thir ty days fr om the date of the or der in such form
and manner as may be pr escribed:
Provided that the National Commission may entertain an
appeal after the expiry of the said period of thirty days if it is
satisfied that there was sufficient cause for not filing it within
that period:
Provided fur ther that no appeal by a person, who is
required to pay any amount in terms of an or der of the S tate
Commission, shall be entertained by the National Commission
unless the appellant has deposited in the pr escribed manner
fifty per cent. of the amount or rupees thirty-five thousand,
whichever is less.
Section-24A. Limitation period.
(1) The District For um, the State Commis-sion or the National
Commission shall not admit a complaint unless it is filed within
two years fr om the date on which the cause of action has
arisen.
(2) Notwithstanding anything contained in sub-section (1), a
complaint may be entertained after the period specified in
sub-section (1), if the complainant satisfies the District Forum,
the State Commission or the National Commission, as the case
may be, that he had sufficient cause for not filing the complaint
within such period:
Provided that no such complaint shall be enter tained
unless the National Commission, the S tate Commission or the
445
District For um, as the case may be, r ecords its r easons for
condoning such delay .”
(emphasis supplied)
Relevant Provisions of the Consumer Protection Regulations,
2005 are reproduced below:
“Reg.-10. Issue of notice .-(1) Whenever the Consumer Forum
directs the issuance of a notice in r espect of a complaint,
appeal or revision petition, as the case may be, to the opposite
party(ies)/respondent(s), ordinarily such notice shall be issued
for a period of 30 days and depending upon the circumstances
of each case even for less than 30 days.
(2) When there is a question of raising pr esumption of service,
30 days notice shall be r equired.
(3) Whenever notices ar e sought to be effected by a courier
service, it shall be ascer tained that the courier is of r epute.
(4) Whenever appointing the courier for the purpose of
effecting service, security deposit may also be taken.
(5) Along with the notice, copies of the complaint,
memorandum of grounds of appeal, petitions as the case may
be and other documents filed shall be served upon the opposite
party(ies)/respondent(s).
(6) After the opposite par ty or r espondent has put in
appearance, no application or document shall be r eceived
by the Registrar unless it bears an endorsement that a copy
thereof has been ser ved upon the other side.”
Reg.-14. Limitation.
(1) Subject to the pr ovisions of sections 15, 19 and 24A, the
period of limitation in the following matters shall be as
follows:-
(i) Revision Petition shall be filed within 90 days fr om the
date of the or der or the date of r eceipt of the or der as the
case may be;
NEW INDIA ASSURANCE CO. L TD. v. HILLI MUL TIPURPOSE
COLD STORAGE PVT. LTD. [VINEET SARAN, J.]
(ii) Application for setting aside the ex par te order under sec-
tion 22A or dismissal of the complaint in default shall be
maintainable if filed within thir ty days fr om the date of the
order or date of r eceipt of the or der, as the case may be;
(iii) An application for r eview under sub-section (2) of sec-
tion 22 shall be filed to the National Commission within 30
days from the date of the or der or r eceipt of the or der, as the
case may be;
(iv) The period of limitation for filing any application for
which no period of limitation has been specified in the Act,
the r ules of these r egulations shall be thir ty days fr om the
date of the cause of action or the date of knowledge.
(2) Subject to the provisions of the Act, the Consumer Forum
may condone the delay in filing an application or a petition
referred to in sub-regulation (1) if valid and sufficient reasons
to its satisfaction are given.
Reg.-26. Miscellaneous.
(1) In all pr oceedings before the Consumer For um, endeavour
shall be made by the parties and their counsel to avoid the
use of provisions of Code of Civil Pr ocedure, 1908 (5 of 1908):
Provided that the pr ovisions of the Code of Civil
Procedure, 1908 may be applied which have been r eferred to
in the Act or in the r ules made ther eunder.
(2)………………..
(3)………………..
(4)………………..
(5)………………..
(6)………………..”
(emphasis supplied)
Question No. 1: 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
447
envisaged under Section 13(2)(a) of the Consumer
Protection Act?
8. A bare reading of Section 13(2)(a) of the Act makes it clear
that the copy of the complaint which is to be sent to the opposite party, is
to be with the direction to give his version of (or response to) the case
(or complaint) within a period of 30 days. It further provides that such
period of 30 days can be extended by the District Forum, but not beyond
15 days.
9. Sub-Section 2(b)(i) of Section 13 of the Act provides for a
complaint to be decided on the basis of the response by the opposite
party and the evidence of the complainant and the opposite party, where
allegations contained in the complaint are denied or disputed by the
opposite party. Sub-Section 2(b)(ii) of Section 13 of the Act provides
that where no response is filed by the opposite party, the complaint may
be decided ex parte on the basis of evidence brought forth by the
complainant.
10. Sub-Section 2(c) of Section 13 of the Consumer Protection
Act further provides that where the complainant fails to appear on the
date of hearing before the District Forum, the District Forum may either
dismiss the complaint for default or decide it on merits. The aforesaid
provision [sub-Section 2(c)] was inserted by Act 62 of 2002, w .e.f.
15.03.2003. Similarly , Section (3A) of Section 13 of the Consumer
Protection Act, which was also inserted by Act 62 of 2002, provides for
deciding every complaint as expeditiously as possible and endeavour
shall be made to decide the complaint within a period of three months
from the receipt of notice by the opposite party, and within five months,
if the complaint requires analysis or testing of commodities. It also
provides that no adjournment shall ordinarily be granted by the District
Forum, and if the same is to be granted, costs may be imposed, and
further that reasons be recorded if the complaint is disposed of after the
time so provided.
11. From the above, it is clear that as mentioned in the Statement
of Objects and Reasons of the Consumer Protection Act, the District
Forum is to provide speedy disposal of consumer disputes. The same
has been further reiterated by the legislature by insertion of Section
13(2)(c) and 13(3A) by Act 62 of 2002.
NEW INDIA ASSURANCE CO. L TD. v. HILLI MUL TIPURPOSE
COLD STORAGE PVT. LTD. [VINEET SARAN, J.]
12. Section 13 of the Consumer Protection Act clearly
contemplates where time can be extended by the District Forum, and
where it is not to be extended. Like, under sub-Section (3A) of Section
13, despite the best efforts of the District Forum, in situations where the
complaint cannot be decided within the period specified therein, the same
can be decided beyond the specified period for reasons to be recorded
in writing by the District Forum at the time of disposing of the complaint.
Meaning thereby that the same would not be mandatory , but only
directory. The phrase “ endeavour shall be made”, makes the intention
of the legislature evident that the District Forum is to make every effort
to decide the case expeditiously within time, but the same can also be
decided beyond the said period, but for reasons to be recorded.
13. On the contrary , sub-Section (2)(a) of Section 13 of the
Consumer Protection Act provides for the opposite party to give his
response ‘within a period of 30 days or such extended period not
exceeding 15 days as may be granted by the District Forum’ . The
intention of the legislature seems to be very clear that the opposite party
would get the time of 30 days, and in addition another 15 days at the
discretion of the Forum to file its response. No further discretion of
granting time beyond 45 days is intended under the Act.
The question of natural justice is dealt with by the legislature in
sub-Section (3) of Section 13 of the Consumer Protection Act, which
clearly provides that “ No proceedings complying with the pr ocedure
laid down in the sub-Section (1) and (2) shall be called in question
in any cour t on the gr ound that the principles of natural justice
have not been complied with.” The legislature was conscious that the
complaint would result in being decided ex parte, or without the response
of the opposite party, if not filed within such time as provided under the
Consumer Protection Act, and in such a case, the opposite party will not
be allowed to take the plea that he was not given sufficient time or that
principles of natural justice were not complied with. Any other
interpretation would defeat the very purpose of sub-Section (3) of Section
13 of the Consumer Protection Act.
14. The maximum period of 45 days, as provided under the
Consumer Protection Act, would not mean that the complainant has a
right to always avail such maximum period of 45 days to file its response.
Regulation 10 of the Consumer Protection Regulations, 2005 clearly
provides that ordinarily such notice to the opposite party to file its response
449
shall be issued for a period of 30 days, but the same can be even less
than 30 days, depending upon the circumstances of each case.
15. Now, reverting back to the provisions of the Consumer
Protection Act to consider as to whether the provision of sub-Section
2(a) of Section 13 granting a maximum period of 15 days in addition to
30 days has to be read as mandatory or not, we may also consider the
other provisions of the Consumer Protection Act where the legislature
intended to allow extension of period of limitation.
Section 15 of the Consumer Protection 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 a 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 an appeal
before the National Commission beyond the period of 30 days has also
been provided under Section 19 of the Consumer Protection Act.
Section 24A provides for the limitation period of 2 years for filing
the complaint. However, sub-Section (2) of Section 24A gives a discretion
to entertain a complaint even after the period of 2 years, if there is a
satisfactory cause for not filing the complaint within such period, which
has to be recorded in writing.
16. Regulation 14 of the Consumer Protection Regulations, 2005
also deals with limitation. In addition, the same provides for limitation
while dealing with appeals (under Section 15 and 19) and complaint
(under Section 24A). Sub-Regulation (2) of Regulation 14 provides for
condonation of delay for sufficient reasons to be recorded.
17. The legislature in its wisdom has provided for filing of complaint
or appeals beyond the period specified under the relevant provisions of
the Act and Regulations, if there is suf ficient cause given by the party,
which has to be to the satisfaction of the concerned authority . No such
discretion has been provided for under Section 13(2)(a) of the Consumer
Protection Act for filing a response to the complaint beyond the extended
period of 45 days (30 days plus 15 days). Had the legislature not wanted
to make such provision mandatory but only directory, the provision for
further extension of the period for filing the response beyond 45 days
would have been provided, as has been provided for in the cases of filing
of complaint and appeals. To carve out an exception in a specific provision
NEW INDIA ASSURANCE CO. L TD. v. HILLI MUL TIPURPOSE
COLD STORAGE PVT. LTD. [VINEET SARAN, J.]
of the statute is not within the jurisdiction of the Courts, and if it is so
done, it would amount to legislating or inserting a provision into the statute,
which is not permissible.
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 Consumer
Protection 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. This provision of Section 13(3)
reinforces the time limit specified in Section 13(2)(a) of the Act.
18. This Court in the case of Lachmi Narain vs Union of India
(1976) 2 SCC 953 has held that “if the pr ovision is couched in
prohibitive or negative language, it can rar ely be dir ectory, the use
of per emptory language in a negative form is per se indicative of
the interest that the pr ovision is to be mandator y”. Further, hardship
cannot be a ground for changing the mandatory nature of the statute, as
has been held by this Court in Bhikraj Jaipurai vs Union of India AIR
1962 SC 1 13=(1962) 2 SCR 880 and Fairgrowth Investment s Lt d.
Vs Custodian (2004) 11 SCC 472. Hardship cannot thus be a ground
to interpret the provision so as to enlarge the time, where the statute
provides for a specific time, which, in our opinion, has to be complied in
letter and spirit.
This Court, in the case of Rohitash Kumar vs Om Prakash
Sharma (2013) 11 SCC 451 has, in paragraph 23, held as under:
“23. Ther e may be a statutor y provision, which causes gr eat
hardship or inconvenience to either the par ty concerned, or
to an individual, but the Cour t has no choice but to enfor ce it
in full rigor. It is a well settled principle of interpr etation that
hardship or inconvenience caused, cannot be used as a basis
to alter the meaning of the language employed by the
legislatur e, if such meaning is clear upon a bar e per usal of
the statute. If the language is plain and hence allows only
one meaning, the same has to be given effect to, even if it
causes har dship or possible injustice.”
451
While concluding, it was observed “that the har dship caused to an
individual, cannot be a gr ound for not giving effective and
grammatical meaning to ever y word of the pr ovision, if the language
used ther ein, is unequivocal.”
Further, it has been held by this Court in the case of Popat Bahiru
Govardhane vs Special Land Acquisition Of ficer (2013) 10 SCC
765 that the law of limitation may harshly affect a particular party but it
has to be applied with all its vigour when the statute so prescribes and
that the Court has no power to extend the period of limitation on equitable
grounds, even if the statutory provision may cause hardship or
inconvenience to a particular party.
19. The contention of the learned Counsel for the respondent is
that by not leaving a discretion with the District Forum for extending the
period of limitation for filing the response before it by the opposite party,
grave injustice would be caused as there could be circumstances beyond
the control of the opposite party because of which the opposite party
may not be able to file the response within the period of 30 days or the
extended period of 15 days. In our view, if the law so provides, the same
has to be strictly complied, so as to achieve the object of the statute. It is
well settled that law prevails over equity, as equity can only supplement
the law, and not supplant it.
This Court, in the case of Laxminarayan R. Bhattad vs State of
Maharashtra (2003) 5 SCC 413, has observed that “when ther e is a
conflict between law and equity the former shall pr evail.” In P.M.
Latha vs S tate of Kerala (2003) 3 SCC 541 , this Court held that
“Equity and law ar e twin br others and law should be applied and
interpreted equitably , but equity cannot over ride written or settled
law.” In Nasiruddin vs Sit a Ram Agarwal (2003) 2 SCC 577, this
Court observed that “in a case wher e the statutor y provision is plain
and unambiguous, the cour t shall not interpret the same in a differ ent
manner, only because of harsh consequences arising ther efrom.”
In E. Palanisamy vs Palanisamy (2003) 1 SCC 123, it was held that
“Equitable considerations have no place wher e the statute contained
express provisions.” Further, in India House vs Kishan N. Lalwani
(2003) 9 SCC 393, this Court held that “The period of limitation
statutorily pr escribed has to be strictly adher ed to and cannot be
relaxed or depar ted fr om by equitable considerations.”
NEW INDIA ASSURANCE CO. L TD. v. HILLI MUL TIPURPOSE
COLD STORAGE PVT. LTD. [VINEET SARAN, J.]
It is thus settled law that where the provision of the Act is clear
and unambiguous, it has no scope for any interpretation on equitable
ground.
20. It is true that ‘justice hurried is justice buried’ . But in the
same breath it is also said that ‘justice delayed is justice denied’ . The
legislature has chosen the latter, and for a good reason. It goes with the
objective sought to be achieved by the Consumer Protection Act, which
is to provide speedy justice to the consumer. It is not that sufficient time
to file a response to the complaint has been denied to the opposite party.
It is just that discretion of extension of time beyond 15 days (after the 30
days period) has been curtailed and consequences for the same have
been provided under Section 13(2)(b)(ii) of the Consumer Protection
Act. It may be that in some cases the opposite party could face hardship
because of such provision, yet for achieving the object of the Act, which
is speedy and simple redressal of consumer disputes, hardship which
may be caused to a party has to be ignored.
21. It has been further contended that the language of Section
13(2) of the Consumer Protection Act is pari materia to Order VIII
Rule 1 of the Code of Civil Procedure, 1908 (for short ‘the Code’) and
if time can be extended for filing of written submission in a suit under the
aforesaid provision of the Code, the same would apply to the filing of
response to complaint under the Consumer Protection Act as well, and
hence the provision of Section 13(2)(a) of the Consumer Protection Act
would be directory and not mandatory.
In this regard, what is noteworthy is that Regulation 26 of the
Consumer Protection Regulation, 2005, clearly mandates that endeavour
is to be made to avoid the use of the provisions of the Code except for
such provisions, which have been referred to in the Consumer Protection
Act and the Regulations framed thereunder , which is provided for in
respect of specific matters enumerated in Section 13(4) of the Consumer
Protection Act. It is pertinent to note that non-filing of written statement
under Order VIII Rule 1 of the Code is not followed by any consequence
of such non-filing within the time so provided in the Code.
Now, while considering the relevant provisions of the Code, it is
noteworthy that Order VIII Rule 1 read with Order VIII Rule 10
prescribes that the maximum period of 120 days provided under Order
VIII Rule 1 is actually not meant to be mandatory , but only directory.
453
Order VIII Rule 10 mandates that where written statement is not filed
within the time provided under Order VIII Rule 1 “the court shall
pronounce the judgment against him, or make such or der in r elation
to the suit as it thinks fit”. A harmonious construction of these provisions
is clearly indicative of the fact that the discretion is left with the Court to
grant time beyond the maximum period of 120 days, which may be in
exceptional cases. On the other hand, sub-Section (2)(b)(ii) of Section
13 of the Consumer Protection Act clearly provides for the consequence
of the complaint to be proceeded ex parte against the opposite party, if
the opposite party omits or fails to represent his case within the time
given.
It may further be noted that in Order VIII Rule 10 of the Code,
for suits filed under the Commercial Courts Act, 2015, a proviso has
been inserted for ‘commercial disputes of a specified value’ (vide Act
4 of 2016 w.r.e.f. 23.10.2015), which reads as under:
“Pr ovided fur ther that no Cour t shall make an Or der to
extend the time pr ovided under Rule 1 of this Or der for filing
the written statement”
From the above, it is clear that for commercial suits, time for filing
written statement provided under Order VIII Rule 1 is meant to be
mandatory, but not so for ordinary civil suits. Similarly, in our considered
view, for cases under the Consumer Protection Act also, the time provided
under Section 13(2)(a) of the Act has to be read as mandatory, and not
directory.
Once consequences are provided for not filing the response to
the complaint within the time specified, and it is further provided that
proceedings complying with the procedure laid down under sub Section
(1) and (2) of Section 13 of the Consumer Protection Act shall not be
called in question in any Court on the ground that the principles of natural
justice have not been complied with, the intention of the legislature is
absolutely clear that the provision of sub-Section 2(a) of Section 13 of
the Act in specifying the time limit for filing the response to the complaint
is mandatory, and not directory.
22. After noticing that there were delays in deciding the complaints
by the District Forum, the legislature inserted sub-Section (3A) of Section
13 of the Consumer Protection Act providing for a time limit for deciding
the complaints. From this it is amply clear that the intention of the
NEW INDIA ASSURANCE CO. L TD. v. HILLI MUL TIPURPOSE
COLD STORAGE PVT. LTD. [VINEET SARAN, J.]
legislature was, and has always been, for expeditious disposal of the
complaints. By providing for extension of time for disposal of the cases
filed, for reasons to be recorded, the legislature has provided for a
discretion to the Forum that wherever necessary , the extension of the
time can be provided for, and where such further extension is not to be
granted [as in the case of Section 13(2)(a)] , the legislature has
consciously not provided for the same, so as to achieve the object of the
Act.
23. In SCG Contracts (India) Private Limited vs K.S.
Chamankar Infrastructure Private Limited (2019) 12 SCC 210,
this Court, was dealing with a case relating to the filing of written statement
under the Code, in respect of a case under the Commercial Courts Act,
2015. After noticing the amendments brought in Order V Rule 1, Order
VIII Rule 1 and Order VIII Rule 10 of the Code with regard to
‘commercial disputes of specified value’ under the Commercial Courts
Act, 2015 by way of insertion of the Provisos in the aforesaid provisions,
this Court held that “….the clear , definite and mandator y provisions
of Or der V r ead with Or der VIII Rule 1 and 10 cannot be
circumvented by r ecourse to the inher ent power under Section 151
to do the opposite of what is stated ther ein”. It was, thus, held that
there was no scope for enlarging the time for filing of written statement
beyond the period of 120 days in commercial suits, as the provision with
regard to such suits would be mandatory , and not directory . The said
judgment has been affirmed by a Bench of three Judges in Desh Raj vs
Balkishan decided on 20.01.2020 in Civil Appeal No.433 of 2020.
24. In Fairgrowth Investment s Lt d. Vs Custodian (2004) 11
SCC 472, this Court was dealing with the provisions of the Special Court
(Trial of Offences Relating to Transactions in Securities) Act, 1992, and
the question was whether the Special Court has power to condone the
delay in filing the petition under Section 4(2) of the said Act. While
holding, that the said provision would be mandatory , it was held in
paragraph 13 as under:
“13. It is not for the courts to determine whether the period
of 30 days is too short to take into account the various
misfortunes that may be faced by notified persons who wish
to file objections under Section 4(2) of the Act nor can the
section be held to be dir ector y because of such alleged
inadequacy of time.”
455
Then, after considering the decisions of this Court in Topline Shoes
Ltd. vs. Corporation Bank (2002) 6 SCC 33 and Dr. J. J. Merchant
vs. Shrinath Chaturvedi (2002) 6 SCC 635 , this Court held that “the
period for filing an objection in Section 4(2) in the Act is a
mandatory pr ovision given the language of the Section and having
regard to the objects sought to be ser ved by the Act.”
25. Certain other cases, which have been referred to by the
learned Counsel for the parties, have, in our considered opinion, no direct
bearing on the facts and issue involved in the present case relating to the
Consumer Protection Act, and thus, the same are not being dealt with
and considered here.
26. We may now deal with the decisions rendered by this Court,
which have been referred to in the Reference Order .
27. Division Bench of this Court has referred this Question, after
observing that there is an apparent conflict between the decisions of this
Court in Topline Shoes (supra); Kailash Vs. Nanhku (2005) 4 SCC
480 and Salem Advocate Bar Association vs. Union of India (2005)
6 SCC 344 on the one hand; and Dr. J. J. Merchant (supra)and NIA
vs. Hilli Multipurpose Cold S torage (2015) 16 SCC 22, on the other
hand.
28. In Topline Shoes (supra), a Division Bench of this Court,
while dealing with the provisions of Section 13(2)(a) of the Consumer
Protection Act, has held that the said provision would be directory and
not mandatory. While holding so, the Bench relied on the principles of
natural justice, and also that no consequence of non-filing of the response
to the complaint within 45 days is provided for in the Consumer Protection
Act.
In paragraph 8 of the said judgment, this Court held:
“It is for the Forum or the Commission to consider all facts
and cir cumstances along with the pr ovisions of the Act
providing time-frame to file r eply, as a guideline and then to
exercise its discretion as best as it may ser ve the ends of justice
and achieve the object of speedy disposal of such cases
keeping in mind the principles of natural justice as well”.
(emphasis supplied)
NEW INDIA ASSURANCE CO. L TD. v. HILLI MUL TIPURPOSE
COLD STORAGE PVT. LTD. [VINEET SARAN, J.]
It is true that in Clause 4 of the Statement of Objects and Reasons
of the Consumer Protection Act, the legislature provided that “quasi–
judicial bodies will observe the principles of natural justice”,
however, the same is to be observed generally, and not where the same
is specifically excluded. In the said judgment, sub-Section (3) of Section
13 has neither been referred, nor taken note of. The same mandates
that no proceedings complying with the procedure laid down in sub-
Sections (1) and (2) of Section 13 shall be called in question in any Court
on the ground that the principles of natural justice have not been complied
with. From this it is evident that while considering the provisions of
Section 13(2)(a) of the Consumer Protection Act, the law mandates that
the principles of natural justice cannot be said to be violated by adopting
the said procedure and that the time of 30 days plus 15 days provided for
filing the response to the complaint would be sufficient and final.
In case of Topline Shoes (supra), this Court was also of the
view that in the Consumer Protection Act, “no consequence is pr ovided
in case the time granted to file r eply exceeds the total period of 45
days”. While observing so, the Bench did not take into account the
provisions of Section 13(2)(b)(ii) of the Consumer Protection Act, which
provides that where the opposite party fails to file response to the complaint
within the specified time provided in Clause (a), “ the District Forum
shall pr oceed to settle the consumer dispute……… on the basis of
evidence br ought to its notice by the complainant……..”. After the
said judgment, by Amendment Act 62 of 2002 (w.e.f. 15.03.2003), the
legislature has provided that the District Forum shall proceed to settle
the consumer dispute “ ex parte on the basis of the evidence”. The
word “ ex parte” has been added by the Amending Act. As we have
observed herein above, the consequence of not filing the response to the
complaint within the stipulated time is thus clearly provided for in the
aforesaid sub-Section, which has not been noticed by the Bench while
deciding the aforesaid case.
29. In the case of Kailash vs. Nanhku (supra), this Court was
dealing with an election trial under the Representation of People Act,
1951, and while considering the provision under Order VIII Rule 1 of
the Code, it held the same to be directory , and not mandatory . While
holding so, the Court was of the view that “the consequences flowing
from non-extension of time are not specifically provided” in the Code.
The decision in the said case has no bearing on the question under
457
consideration, as the present reference before us is under the Consumer
Protection Act, where, as we have already observed, consequences are
specifically provided for.
In passing, in paragraph 35 of the said judgment, the Bench referred
to the case of Topline Shoes(supra), where the provision of Section 13
of the Consumer Protection Act was considered to be directory, and not
mandatory. In our view, the same would not have the effect of affirming
the decision of Topline Shoes (supra) since the Court, in the aforesaid
case, was dealing with the provisions of the Code and not the specific
provisions of Consumer Protection Act.
We are thus of the opinion that Kailash vs Nanhku (supra) has
not overruled the decision in Dr. J. J. Merchant (supra) with regard to
the provision of the Consumer Protection Act.
30. Again, in the case of Salem Advocates Bar Association
(supra), this Court was dealing with a case under Order VIII Rule 1 of
the Code and in paragraph 20, it has been held as under:
“20 .………The use of the wor d “shall” is or dinarily indicative
of mandator y natur e of the pr ovision but having r egard to
the context in which it is used or having r egard to the intention
of the legislation, the same can be constr ued as dir ector y.
The rule in question has to advance the cause of justice and
not to defeat it. The r ules of pr ocedure are made to advance
the cause of justice and not to defeat it. Construction of the
rule or pr ocedur e which pr omotes justice and pr events
miscarriage has to be pr eferred. The r ules of pr ocedure ar e
the handmaid of justice and not its mistr ess. In the pr esent
context, the strict interpr etation would defeat justice.”
Thereafter, the Court proceeded to refer to the provisions of Order
VIII Rule 1, along with Order VIII Rule 10 of the Code. On a harmonious
construction of the said provision, it held that the provisions of Order
VIII Rule 1 of the Code would be directory, and not mandatory. Relevant
paragraph 21 of the said judgment is below:
“21. In constr uing this pr ovision, suppor t can also be had
from Or der 8 Rule 10 which pr ovides that wher e any par ty
from whom a written statement is r equired under Rule 1 or
Rule 9, fails to pr esent the same within the time permitted or
NEW INDIA ASSURANCE CO. L TD. v. HILLI MUL TIPURPOSE
COLD STORAGE PVT. LTD. [VINEET SARAN, J.]
fixed by the cour t, the cour t shall pr onounce judgment against
him, or make such other or der in r elation to the suit as it
thinks fit. On failur e to file written statement under this
provision, the cour t has been given the discr etion either to
pronounce judgment against the defendant or make such other
order in r elation to the suit as it thinks fit. In the context of
the pr ovision, despite use of the wor d “shall”, the cour t has
been given the discr etion to pr onounce or not to pr onounce
the judgment against the defendant even if the written
statement is not filed and instead pass such or der as it may
think fit in r elation to the suit. In constr uing the pr ovision of
Order 8 Rule 1 and Rule 10, the doctrine of harmonious
constr uction is r equired to be applied. The effect would be
that under Rule 10 Or der 8, the cour t in its discr etion would
have the power to allow the defendant to file written statement
even after expir y of the period of 90 days pr ovided in Or der
8 Rule 1. Ther e is no r estriction in Or der 8 Rule 10 that after
expiry of ninety days, further time cannot be granted. The
court has wide power to “make such or der in r elation to the
suit as it thinks fit”. Clearly , therefore, the pr ovision of Or der
8 Rule 1 pr oviding for the upper limit of 90 days to file written
statement is dir ectory”.
As such in our view, the said judgment would hold the field with
regard to Order VIII Rule 1 of the Code and would not be applicable to
cases dealing with the provisions of Section 13(2) of the Consumer
Protection Act, or such other enactment wherein a provision akin to
Section 13(2) is there and the consequences are also provided.
31. The case of Dr. J. J. Merchant (supra)is one relating to the
provisions of the Consumer Protection Act, and has been decided by a
Bench of three Judges of this Court (which is after the decision in the
case of Topline Shoes (supra) was rendered). In this case it has been
held that the time limit prescribed for filing the response to the complaint
under the Consumer Protection Act, as provided under Section 13(2)(a),
is to be strictly adhered to, i.e. the same is mandatory, and not directory.
In paragraph 13 of the said judgment, it has been held that:
“For having speedy trial, this legislative mandate of not giving
more than 45 days in submitting the written statement or the
459
version of the case is r equired to be adher ed to. If this is not
adhered to, the legislative mandate of disposing of the cases
within thr ee or five months would be defeated.
In the said case of Dr. J. J. Merchant (supra),while holding that
the time limit prescribed would be mandatory and thus be required to be
strictly adhered to, this Court also considered the Statement of Objects
and Reasons of the Consumer Protection (Amendment) Bill, 2002 (which
was subsequently enacted as Act 62 of 2002 and has come in force
w.e.f. 15.03.2003). The salient features of the same was “to pr ovide
simple, inexpensive and speedy justice to the consumers……….”
and that “the disposal of cases is to be faster” and after noticing that
“several bottlenecks and shortcomings have also come to light in
the implementation of various pr ovisions of the Act” and with a view
to achieve quicker disposal of consumer complaints, certain amendments
were made in the Act, which included “(iii) pr escribing the period
within which complaints ar e to be admitted, notices ar e to be issued
to opposite party and complaints are to be decided”. With this object
in mind, in sub-Section (2)(b)(ii) of Section 13, the opening sentence
“on the basis of evidence” has been substituted by “ ex parte on the
basis of evidence” . By this amendment, consequences of not filing the
response to the complaint within the specified limit of 45 days was to be
that the District Forum shall procced to settle the consumer dispute ex
parte on the basis of evidence brought to its notice by the complainant,
where the opposite party omits or fails to take action to represent his
case within time. For achieving the objective of quick disposal of
complaints, the Court noticed that sub-Section (3A) of Section 13 was
inserted, providing that the complaint should be heard as expeditiously
as possible and that endeavour should be made to normally decide the
complaint within 3 months, and within 5 months where analysis or testing
of commodities was required. The Provisos to the said sub-Section
required that no adjournment should be ordinarily granted and if granted,
it should be for sufficient cause to be recorded in writing and on imposition
of cost, and if the complaint could not be decided within the specified
period, reasons for the same were to be recorded at the time of disposing
of the complaint.
It was after observing so, and considering aforesaid amendments,
this Court held that the time limit of 30 plus 15 days in filing the response
to the complaint, be mandatory and strictly adhered to.
NEW INDIA ASSURANCE CO. L TD. v. HILLI MUL TIPURPOSE
COLD STORAGE PVT. LTD. [VINEET SARAN, J.]
32. The decision of another Bench of three Judges in NIA vs
Hilli Multipurpose Coldstorage (supra),which has been considered in
the referring order was passed by a bench of two Judges in the same
case, after noticing a conflict of views in the cases of Dr. J. J. Merchant
(supra) and Kailash vs Nanhku (supra).
After considering the provisions of the Code and Consumer
Protection Act, the reference was answered “that the law laid down
by a thr ee Judge Bench of this Cour t in Dr. J. J. Merchant
(supra)should prevail” . In coming to this conclusion, the following was
observed in paragraphs 25 and 26 of the said judgment:
“25. W e are, therefore, of the view that the judgment deliver ed
in J.J. Mer chant holds the field and ther efore, we r eiterate
the view that the District Forum can grant a further period of
15 days to the opposite par ty for filing his version or r eply
and not beyond that.
26. Ther e is one mor e reason to follow the law laid down in
J.J. Mer chant. J.J. Mer chant was decided in 2002, wher eas
Kailash was decided in 2005. As per law laid down by this
Court, while dealing Kailash, this Court ought to have
respected the view expr essed in J.J. Mer chant as the judgment
delivered in J.J. Mer chant was earlier in point of time. The
aforesaid legal position cannot be ignor ed by us and ther efore,
we are of the opinion that the view expr essed in J.J. Mer chant
should be followed.”
33. Although, after the above decision, no further reference was
required to be made, but still we have proceeded to answer the question
referred to this Constitution Bench and are of the considered opinion
that the view expressed by this Court in the case of Dr. J. J. Merchant
(supra) is the correct view .
Question No. 2: What would be the commencing point of
limitation of 30 days under Section 13 of the Consumer Protection
Act, 1986?
34. The question for determination is whether the limitation under
Section 13 of the Consumer Protection Act for filing the response by the
opposite party to the complaint would commence from the date of receipt
of the notice of the complaint by the opposite party , or the receipt of
notice accompanied by a copy of the complaint.
461
35. In paragraph 12 of the judgment dated 04.12.2015, of three
Judge Bench of this Court, in this very case of NIA vs. Hilli
Multipurpose Cold Storage (supra), while referring to the commencing
point of limitation of 30 days under Section 13(2) of the Consumer
Protection Act, it has been held that “The whole issue centr es 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 of the Act. Upon r eceipt 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 the pr ovisions of Section 13 of the Act, the opposite par ty
has to give his version of the case within a period of 30 days fr om
the date of r eceipt of the copy of the complaint.”
36. However, another two judge Bench of this Court, by an Order
dated 18.01.2017 passed in this very Appeal being Civil Appeal
No(s).10941-10942 of 2013, NIA Vs. Hilli Multipurpose Cold
Storage,has expressed the view that the declaration made in Dr. J. J.
Merchant’scase to the ef fect that the said period is to be reckoned
from the date of receipt of notice by the opposite party or complaint
under the Act,requires a more critical analysis. The bench thus opined
that “what is the commencing point of the limitation of 30 days
stipulated in Section 13 of the Act is r equir ed to be decided
authoritatively” . It is thus that this question has been placed before us
for an authoritative decision.
37. For deciding this question, we may first analyse the relevant
provisions of the Consumer Protection Act and the Regulations framed
thereunder. Sub-Sections (2)(a) and (2)(b) of Section13 of the Consumer
Protection Act specify that it is the copy of the complaint which is to
given to the opposite party directing him to give his version of the case
within a period of 30 days or such extended period, not exceeding 15
days. As such, from the aforesaid provision itself, it is clear that it is the
copy of the admitted complaint which is to be served, after which the
period to file the response would commence.
Further, Regulation 10 of the Consumer Protection Regulations,
2005 also specifies the procedure of issuing notice, which should be
accompanied by copy of the complaint. Regulation 10(5) clearly mentions
that “ along with the notice, copies of the complaint, memorandum
of gr ounds of appeal, petitions as the case may be and other
NEW INDIA ASSURANCE CO. L TD. v. HILLI MUL TIPURPOSE
COLD STORAGE PVT. LTD. [VINEET SARAN, J.]
documents filed shall be served upon the opposite party(ies)/
respondent(s)”. The same would also make it clear that it is on service
of a copy of the complaint that the period of limitation for filing the
response by the opposite party shall commence.
38. Even in the Code of Civil Procedure, Order VIII Rule 1
prescribes that the written statement shall be filed by the defendant
within 30 days from the receipt of the “summons”. “Summons” has
been defined in Order V Rule 1 of the Code and Rule 2 provides that
“Every summon shall be accompanied by a copy of the plaint.”
While considering the aforesaid provisions, a two judge Bench of this
Court in the case of Nahar Enterprises vs Hyderabad Allwyn Lt d.
(2007) 9 SCC 466 has, in paragraph 8, 9 and 10, held as under:
(8) The learned counsel appears to be cor rect. When a
summons is sent calling upon a defendant to appear in the
court and file his written statement, it is obligatory on the
part of the court to send a copy of the plaint and other
documents appended ther eto, in terms of Or der 5 Rule 2 CPC.
(9) Order 5 Rule 2 CPC r eads as under:
“2. Copy of plaint annexed to summons. – Every summon shall
be accompanied by a copy of the plaint.”
(10) The learned Judge did not addr ess itself the question as
to how a defendant, in absence of a copy of the plaint and
other documents, would be able to file his written
statement…………………….……..”
39. Even in Arbitration and Conciliation Act, 1996, sub-Section
(5) of Section 31 provides that “after the arbitral awar d is made, a
signed copy shall be deliver ed to each par ty”. An application for
setting aside the arbitral award is to be made under Section 34 of the
said Act. The delivery of the award sets in motion the limitation for
challenging the award under Section 34 of the said Act. While interpreting
the nature and scope of Section 31(5) of the said Act, a three Judge
Bench of this Court in Union of India vs T ecco Trichy Engineers &
Contractors, (2005) 4 SCC 239, has, in paragraph 6, held as under:
(6) Form and contents of the arbitral awar d are provided by
Section 31 of the Act. The arbitral awar d drawn up in the
463
manner pr escribed by Section 31 of the Act has to be signed
and dated. According to sub-section (5), “after the arbitral
award is made, a signed copy shall be deliver ed to each party”.
The term “party” is defined by clause (h) of Section 2 of the
Act as meaning “a par ty to an arbitration agr eement”. The
definition is to be r ead as given unless the context other wise
requires. Under sub-section (3) of Section 34 the limitation
of 3 months commences fr om the date on which “the par ty
making that application” had r eceived the arbitral awar d.
……………”
From the above, what we notice is that wherever limitation is
provided, either for filing response/written statement or filing an appeal,
it is the copy of the plaint or the order/award which is to be served on
the party concerned after which alone would commence the period of
limitation.
40. Now reverting to the provisions of the Consumer Protection
Act, a conjoint reading of Clauses (a) and (b) of sub-Section (2) of
Section 13 would make the position absolutely clear that the commencing
point of limitation of 30 days, under the aforesaid provisions, would be
from the date of receipt of notice accompanied by a copy of the complaint,
and not merely receipt of the notice, as the response has to be given,
within the stipulated time, to the averments made in the complaint and
unless a copy of the complaint is served on the opposite party, he would
not be in a position to furnish its reply . Thus, mere service of notice,
without service of the copy of the complaint, would not suffice and cannot
be the commencing point of 30 days under the aforesaid Section of the
Act. We may, however, clarify that the objection of not having received
a copy of the complaint along with the notice should be raised on the
first date itself and not thereafter, otherwise if permitted to be raised at
any point later would defeat the very purpose of the Act, which is to
provide simple and speedy redressal of consumer disputes.
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
NEW INDIA ASSURANCE CO. L TD. v. HILLI MUL TIPURPOSE
COLD STORAGE PVT. LTD. [VINEET SARAN, J.]
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 .
Ankit Gyan Reference answered