cpc

The Max Time that District Forum can Allow for Filing of a Response?

In answer to two questions referred to it, arising in the several civil appeals including New India Assurance Co. Ltd. v. Hilli Multipurpose Cold Storage Pvt. Ltd, on March 4, 2020, a 5-judge bench of the Supreme Court, consisting of Justices Arun Mishra, Indira Banerjee, Vineet Saran, M.R.Shah and S. Ravindra Bhat , has opined that the District Consumers' 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.

The Supreme Court's answer to the second question referred to 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.

The first question was referred by a two-judge bench of the Court through an order passed on February 11, 2016, in Civil Appeal 1083-1084/2016- M/s Bhasin Infotech and Infrastructure Pvt. Ltd. v. M/s Grand Venezia Buyers Association(Regd).

The other question was referred by another division bench of the Apex-Court by an order on January 18, 2017, in the Civil Appeal 10941-10942/2013- NIA v. Hilli Multipurpose Cold Storage Pvt. Ltd.

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.

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.

The Legislature has dealt with the question of natural justice in sub-section (3) of section 13 of the Act, which clearly provides that 'No proceedings complying with the procedure laid down in the sub-section (1) and (2) shall be called in question in any court on the ground that the principles of natural justice have not been not 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 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 Act.

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.

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 the sufficient cause shown by the party, which has to be to the satisfaction of the concerned authority. No such discretion has been provided under section 13(2) (a) of the Act for filing a response to the complaint beyond the extended period of 45 days (30+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 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.

The Supreme Court reminds that in its decision of the case - Lachmi Narain v. Union of India - (1976) 2 SCC 953, it has held that 'if the provision is couched in prohibitive or negative language, it can rarely be directory. The use of peremptory language in a negative form is per se indicative of the interest that the provision is to be mandatory. The Court has been also of the view that 'that the hardship caused to an individual, cannot be a ground for not giving effective and grammatical meaning to every word of the provision, if the language used therein is unequivocal.”

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 these 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 position to furnish his reply. Thus, mere service of notice without copy of the complaint, would not suffice.

The Supreme Court has made it amply clear that this judgment will operate prospectively.

 

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R.S.Agrawal 
on 25 March 2020
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