TaxTMI 
TaxTMI 
2020 (3) TMI 1368
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....016), Civil Appeal No. 1974 of 2020 (Arising out of Special Leave Petition (C) No. 21388 of 2017) Civil Appeal No. 1975 of 2020 (Arising out of Special Leave Petition (C) No. 13951 of 2017), Civil Appeal No. 1976 of 2020 (Arising out of Special Leave Petition (C) No. 10796 of 2017), Civil Appeal Nos. 780, 4457 of 2017, Civil Appeal No. 1977 of 2020 (Arising out of Special Leave Petition (C) No. 151 of 2017), Civil Appeal No. 1978 of 2020 (Arising out of Special Leave Petition (C) No. 13567 of 2017), Civil Appeal No. 1979 of 2020 (Arising out of Special Leave Petition (C) No. 3128 of 2017), Civil Appeal No. 1965 of 2020 (Arising out of Special Leave Petition (C) No. 25849 of 2016), Civil Appeal Nos. 2339, 4510 of 2017, Civil Appeal No. 1980 of 2020 (Arising out of Special Leave Petition (C) No. 7225 of 2017), Civil Appeal No. 1981 of 2020 (Arising out of Special Leave Petition (C) No. 8435 of 2017), Civil Appeal No. 5219 of 2017, Civil Appeal No. 1982 of 2020 (Arising out of Special Leave Petition (C) No. 14346 of 2017), Civil Appeal Nos. 5574-5575 of 2017, Civil Appeal No. 1983 of 2020 (Arising out of Special Leave Petition (C) No. 10544 of 2017), Civil Appeal Nos. 7100, 5578-5579 ....
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..... Mahendran, Amit Shukla, Deva Shukla, Varun Punia, Bhavin R. Bhatia, Arpit Rai, Amogh Singh, Sanjeev R. Singh, Aviral Kashyap, Ritesh Agrawal, Tejas Bhatia, Aishwarya Adlakha, Himanshu Shekhar, Kumar Mihir, Vivek Kumar, Rajesh Kumar Gupta, Gaurav Sharma, Prateek Bhatia, M.T. George, Susy Abraham, Johns George, Umesh Kumar Khaitan, Ranjey Dubey, Srishti Sharma, Yati Sharma, Shiv Ram Sharma, Harish Uppal, Tilshwa Prasad, Anushree Menon, Gagan Gupta, Divya Sharma, Suryajyoti Singh, Gautam Das, Advs. K.J. John and Co., Aura & Co., Karanjawala & Co., Arun Aggarwal, Vishal Arun and Rahul Gupta, Advs. JUDGMENT 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 ....
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....being Civil Appeal No(s). 10941-10942 of 2013, NIA v. Hilli Multipurpose Cold Storage Pvt. Ltd., 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 required to be decided authoritatively. The declaration made in JJ Merchant's case that the said period is to be reckoned from the date of the receipt of the notice by the opposite party or complaint under the Act requires in our humble opinion, a more 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 redressal to consumer disputes, a quasi-judicial machinery is sought to be set up at the district, State and Central levels.......". The Preamble of the Consumer Protection Act also mentions that the Act is "to provide for better protection of the interests of the consumers". The nomenclature of this Act also goes to show that it is for the benefit or protecti....
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.... 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. [(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 ordinarily granted by the District Forum unless sufficient cause is shown and the reasons for grant of adjournment have been recorded in writing by the Forum: Provided further that the District Forum shall make such orders as to the costs occasioned by the adjournment as may be provided in the regulations 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 reasons for the same at the time of disposing of the said complaint.] [(3B) Where during the pendency of....
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.... terms of an order of the State Commission, shall be entertained by the National Commission unless the Appellant has deposited in the prescribed manner fifty per cent of the amount or rupees thirty-five thousand, whichever is less. Section-24A. Limitation period. (1) The District Forum, the State Commission or the National Commission shall not admit a complaint unless it is filed within two years from 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 entertained unless the National Commission, the State Commission or the District Forum, as the case may be, records its reasons for condoning such delay. Relevant Provisions of the Consumer Protection Regulations, 2005 are reproduced below: Regulation-10. Issue of notice.-(1) Whenever the Consumer Forum directs the issuance of a notice in respect of a....
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....of Civil Procedure, 1908 (5 of 1908): Provided that the provisions of the Code of Civil Procedure, 1908 may be applied which have been referred to in the Act or in the Rules made thereunder. (2).................... (3).................... (4).................... (5).................... (6).................... 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 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 di....
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....e 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 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 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 wa....
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....ppeals beyond the period specified under the relevant provisions of the Act and Regulations, if there is sufficient 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 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 Protectio....
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....itation 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 v. State of Maharashtra (2003) 5 SCC 413, has observed that "when there is a conflict between law and equity the former shall prevail." In P.M. Latha v. State of Kerala (2003) 3 SCC 541, this Court held that "Equity and law are twin brothers and law should be applied and interpreted equitably, but equity cannot override written or s....
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....at 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. 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 order in relation 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 i....
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.... has consciously not provided for the same, so as to achieve the object of the Act. 23. In SCG Contracts (India) Private Limited v. 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 mandatory provisions of Order V read with Order VIII Rule 1 and 10 cannot be circumvented by recourse to the inherent power Under Section 151 to do the opposite of what is stated therein". 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 v. Balkishan decided o....
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....ays 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 circumstances along with the provisions of the Act providing time-frame to file reply, as a guideline and then to exercise its discretion as best as it may serve the ends of justice and achieve the object of speedy disposal of such cases keeping in mind the principles of natural justice as well. 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 t....
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....urt, 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 v. 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 word "shall" is ordinarily indicative of mandatory nature of the provision but having regard to the context in which it is used or having regard to the intention of the legislation, the same can be construed as directory. The Rule in question has to advance the cause of justice and not to defeat it. The Rules of procedure are made to advance the cause of justice and not to defeat it. Construction of the Rule or procedure which promotes justice and prevents miscarriage has to be preferred. The Rules of procedure are the handmaid of justice and not its mistress. In the present context, the strict interpretation would defeat justice. Thereafter, the Court pro....
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....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 version of the case is required to be adhered to. If this is not adhered to, the legislative mandate of disposing of the cases within three 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 provide simple, inexpensive and speedy justice to the consumers.........." and that "the disposal of cases is to be faster" and a....
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....to this conclusion, the following was observed in paragraphs 25 and 26 of the said judgment: 25. We are, therefore, of the view that the judgment delivered in J.J. Merchant holds the field and therefore, we reiterate the view that the District Forum can grant a further period of 15 days to the opposite party for filing his version or reply and not beyond that. 26. There is one more reason to follow the law laid down in J.J. Merchant. J.J. Merchant was decided in 2002, whereas Kailash was decided in 2005. As per law laid down by this Court, while dealing Kailash, this Court ought to have respected the view expressed in J.J. Merchant as the judgment delivered in J.J. Merchant was earlier in point of time. The aforesaid legal position cannot be ignored by us and therefore, we are of the opinion that the view expressed in J.J. Merchant 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: W....
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....xtended 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 grounds of appeal, petitions as the case may be and other 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....