HON’BLE MR. JUSTICE MANOJIT MANDAL, PRESIDENT
- Challenge is to the order No. 7 dated 24/02/2022 passed by the Learned District Consumer Disputes Redressal Forum, Unit II, Kolkata ( in short, ‘the District Forum’) in connection with complaint case No. CC/294/2021 thereby the prayer to accept the written version was rejected.
- The complainant / respondent No. 1 & 2 herein instituted a complaint case being No. CC/294/2021 against the revisionists under the Consumer Protection Act.
- The complainants / respondents No. 1 & 2 have filed the petition of complaint praying for the following reliefs :-
“i) The opposite party to return of 12,87,025/- (Twelve Lac eighty seven thousand and twenty five Only) being the principal amount paid till date on account of purchase of the said flats/ units of the flat along with interest there on calculated till date of Rs.12,14,362/- (twelve Lac fourteen thousand three hundred and sixty two only) adding together total Rs.25,01,387 (Rupees twenty five Lac one thousand three hundred and eighty seven only).
ii) To direct the opposite parties to pay compensation of Rs.3,00,000/- for the extreme mental agony, and harassment suffered by the complainants.
iii) To direct the opposite parties to pay Rs.50,000/- (Fifty thousand only) towards litigation as cost.”
- The revisionists / petitioners have received the copy of notice along with the copy of complaint and its annexures on 18/09/2021. The revisionists / petitioners have filed the written version on 21/12/2021. On 24/02/2022 the revisionists filed an application praying to accept the written version filed on 21/12/2021 and the said application was rejected by the impugned order.
- Being aggrieved by and dissatisfied with the order passed by the Learned District Forum, the revisionists have preferred this revisional application.
- Now, we shall have to consider as to whether the impugned order should be sustained.
- Learned Lawyer for the revisionists was absent at the time of hearing of this revisional application.
- Upon perusal of the revisional application including the impugned order it appears to us that the revisionists / opposite parties received the copy of notice on 18/09/2021. It also appears to us that the revisionists / opposite parties filed the written version on 21/12/2021 i.e. after 45 days of the statutory period.
9. Section 51(5) of the Act grants power to the National Commission to set aside the ex parte orders passed by the State Commission and Section 61 of the Act grants power to the National Commission to set aside its own ex parte orders. But there is no specific provision in the Consumer Protection Act that expressly grants power to the District Commission to set aside the ex parte orders passed by them. Therefore, the District Commission has no power and / or jurisdiction to accept the written version beyond the statutory period prescribed under the Act i.e. 45 days in all.
10 .The controversy is squarely covered by the judgment of the Hon’ble Supreme Court reported in (2011) 9 SCC 541 (Rajib Hitendra Pathak and others Vs. Achyut Kashinath Karekar and another ) wherein it was held that the “State Commission or District Consumer Forum have no power to set aside their own ex parte orders”. Paras 35, 36,37,38 & 39 of the said judgment are relevant which are reproduced as under :-
“35. We have carefully scrutinized the provisions of the Consumer Protection Act, 1986. We have also carefully analyzed the submissions and the cases cited by the learned counsel for the parties.
36. On careful analysis of the provisions of the Act, it is abundantly clear that the Tribunals are creatures of the Statute and derive their power from the express provisions of the Statute. The District Forums and the State Commissions have not been given any power to set aside ex parte orders and power of review and the powers which have not been expressly given by the Statute cannot be exercised.
37. The legislature chose to give the National Commission power to review its ex parte orders. Before amendment, against dismissal of any case by the Commission, the consumer had to rush to this Court. The amendment in Section 22 and introduction of Section 22-A were done for the convenience of the consumers. We have carefully ascertained the legislative intention and interpreted the law accordingly.
38. In our considered opinion, the decision in Jyotsana's case laid down the correct law and the view taken in the later decision of this Court in New India Assurance Co. Ltd. is untenable and cannot be sustained.
39. In view of the legal position, in Civil Appeal No.4307 of 2007, the findings of the National Commission are set aside as far as it has held that the State Commission can review its own orders. After the amendment in Section 22 and introduction of Section 22A in the Act in the year 2002 by which the power of review or recall has vested with the National Commission only. However, we agree with the findings of the National Commission holding that the Complaint No.473 of 1999 be restored to its original number for hearing in accordance with law.”
11. The same issue was also there before the Hon'ble Supreme Court in judgment of case Lucknow Development Authority Vs. Shyam Kapoor in connection with Civil Appeal No. 936 of 2013 decided on 05/02/2013 wherein earlier judgment of Supreme Court passed in connection with the case namely Rajeev Hitendra Pathak's case (Supra) was relied and it was held that "The District Forum and the State Commissions have not been given any power to set aside ex parte orders and power of review and the powers which have not been expressly given by the Statute cannot be exercised.
12. The Constitutional Bench of the Hon’ble Apex Court reported in New India Assurance Co. Ltd. Vs. Hilli Multipurpose Cold Storage Pvt. Ltd. , 2020 (5) SCC 757 has pronounced that the limitation period under section 13(2) 3 of the Consumer Protection Act, 1986 could not be exercised beyond the statutory prescribed period of 45 days.
13. In view of our above discussion, the impugned order passed by the Learned District Commission is within the jurisdiction and which is not bad in law. There is no scope of interference with the impugned order.
14. Accordingly, the revisional application is dismissed in limini. Considering the facts and circumstances, there will be no order as to costs.
15. District Commission is directed to proceed with the complaint case and decide the same as expeditiously as possible preferably within a period of two months from the date of receipt of the copy of the order passed by this Commission.
16. Accordingly, the revisional application is dismissed in limini.
17. Let a copy of this order be sent down to the Learned District Commission at once.
