The petitioner is challenging the order of the learned District Consumer Disputes Redressal Forum, Imphal (for short Learned District Forum, Imphal) dated 06.08.2019 passed in Complaint Case No.2 of 2019 for proceeding ex-parte against the petitioner.
2. Sans detail but sufficient facts for deciding the matter in question in the present Revision Petition are briefly recapitulated. The present respondent had purchased a Baleno Zeta on 09.01.2018 from the present petitioner after securing a loan amount of Rs.6,00,000/- (rupees six lakhs) only from HDFC Bank Limited, Guwahati Branch. After purchase the respondent took the vehicle to the authorized service centre at Imphal which is at Eastern Motors Limited at Chingmeirong on 09.02.2019. The Easter Motors Limited, Imphal East had issued a computer generated information data to the respondent which shows that the said vehicle Baleno was recorded in the name of one Gunajit Talukdar. Further, it also shows that the vehicle had already availed the 1st free service/inspection on mileage of 865 kms on 18.11.2018 and 2nd free service/inspection was done at the mileage of 5105 kms on 26.11.2018 in which the vehicle was attended by the Maruti Mobile Support at the residence requested through MMS. Thereafter, the respondent lodged number of complaints to the office of the petitioner but with no effect. Ultimately, the respondent had demanded for a brand new car of the same model in lieu of the vehicle which was sold to him or return the price of the vehicle but with no effect.
3. Having no alternative, the respondent/complainant thereafter filed a Complaint Case No.2 of 2019 against the Petitioner before the learned District Forum, Imphal for a compensation of Rs.13,06,624/- (Rupees Thirteen lakhs Six thousand Six hundred twenty four) only including the price of the brand new car or to replace the said “Baleno Zeta A1K412” by a new car of same model.
4. After receiving notice of the complaint petition on 18.04.2019 by the present revision petitioner, no counsel was appointed by the petitioner to represent him before the learned District Forum, Imphal, Imphal West at Sangaiprou on the next date of hearing i.e. 28.05.2019. Consequently, the learned District Forum, Imphal proceeded the case as ex-parte on 06.08.2019 (hereinafter referred to as the impugned order) against the petitioner since the petitioner failed to file Vakalatnama as well as the written version/written statement even after 45 days from the date of receipt of notice as per Section 13(1)(a) of the Consumer Protection Act, 1986. The impugned order is reproduced herein below:-
BEFORE THE PRESIDENT DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, IMPHAL DISTRICT
COMPLAINT CASE NO. 2 OF 2019
Shri R.K. Jiten Singh, aged about 45 years, s/o R.K. Nabakumar Singh, a resident of Sagolband Tera Pukhrambam Leikai, P.O. & P.S. Imphal, Imphal West District, Manipur.
Complainant/Petitioner
-Versus-
1. NEXA Chandmari M/s Pallavi Motors Pvt. Ltd., Kaziranga Tower, Ground Floor, R.G. Baruah Road, Near Guwahati Commerce College, Guwahati, Assam and another.
Respondents/Ops
O R D E R
Date of Order: 06.08.2019
The Ld. Counsel of both the parties are present. The Ld. Counsel of the Respondent No.1, Advocate Sanjeeka has already undertook as Counsel of Respondent No.1 on 28/05/2019 but, failed to file the Vakalatnama.
Advocate Sanjeeka also failed to file her Vakalatnama today also and prayed for time to file the written statement citing inability to communicate with Respondent No.1 who is in Guwahati.
However, the Ld. Counsel of Complainant objected the prayer stating the ground that 45 days has already been over since the day she undertook as a Counsel.
Ld. Counsel of the Complainant prayer to grant ex-parte to Respondent No.1 is accepted as the prayer of the Counsel is reasonable and justified.
Fix 29/08/2019 for same status.
Sd/- Sd/-
Member Member
5. The present Revision Petition was posted for hearing on different dates i.e. 05.03.2021, 05.04.2021, 19.04.2021, 26.4.2021, 17.05.2021, 21.06.2021, 19.07.2021, 16.08.2021 and 08.09.2021. It may be stated that the revision petitioner has been absent on all the above stated dates of hearing of the above Revision Petition even though the learned counsel for the respondent has all along been present on all the above dates of hearing of the Revision Petition and he was heard at length. The respondent also filed memorandum of argument as ordered by the Commission but the petitioner has not yet filed the memorandum of argument despite ample opportunities given to the petitioner. Consequently, after hearing the learned counsel for the respondent and on examination of the Revision Petition and also the records of the Complaint case No.2 of 2019, we are going to dispose of the Revision Petition on merit.
6. We have heard the learned counsel Shri S. Kaminikumar Singh, on behalf of the respondent. It is submitted by the learned counsel that the revision petitioner had received the copy of the Consumer Complaint on 18.04.2019 which was sent by post vide consignment no. EE467841031N. On the next date, the revision petitioner had failed to appear before the Ld. District Forum nor any pleader/advocate filed Vakalatnama for and on behalf of the revision petitioner before the learned District Forum, Imphal. Moreover, the written version/written statement was not filed even after expiry of 45 days from the date of receipt of the compliant petition. As such the Ld. District Forum had rightly passed an ex-parte order on 06.08.2019 against the revision petitioner.
It is further submitted that on subsequent dates also, the revision petitioner failed to appear before the Ld. District Forum to contest the Complaint case since ex-parte order dated 06.08.2019 is only an interlocutory order. The learned counsel Ms. Sanjeeka Devi was not the recognized agent or pleader who was appointed by the revision petitioner before the Learned District Forum, Imphal to represent the Consumer Complaint Case No. 2 of 2019 under Order III Rule 1, Rule 2 and Rule 4 of the CPC.
7. The learned counsel for the respondent has submitted that Section 13(1)(a) of the Consumer Protection Act,1986 provides that the District Forum shall on admission of the complaint, if it relates any goods, refer a copy of the admitted complaint within 21 days from the date of its admission to the opposite party mentioned in the complaint 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. It is further submitted that there may be a statutory provision, which causes great hardship or inconvenience to either the party concerned, or to an individual but the Court has no choice but to enforce it in full rigour (Ref.:- Rohitash Kumar v. Om Prakash Sharma reported in (2013)11 SCC 451).
The learned counsel relied upon the case of Popat Bahiru Govardhane v. Special Land Acquisition Officer reported in (2013) 10 SCC 765 and has submitted that it is a settled legal proposition that law of limitation may harshly affect a particular party but it has to be applied with all its rigour when the statute so prescribes. The Court has no power to extend the period of limitation on equitable grounds. The statutory provision may cause hardship or inconvenience to a particular party, but the court has no choice but to enforce it.
The language of 13(2) of the Act is not pari material to Order VIII Rule1 of the Civil Procedure Code, 1908 (hereinafter referred to as the Code). The Hon’ble Bench stressed upon regulation 26 of the Consumer Protection Regulations, 2005 which clearly mandates that endeavor 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 there under, which is provided for in respect of specific matters enumerated in Section 13(4) of the Consumer Protection Act.
The Hon’ble Bench also noted that the Order VIII Rule1 read with Order VIII Rule 10 of the code, prescribes that the maximum period of 120 days provided under Order VIII Rule 1 is actually not meant to be mandatory, but only directory. Whereas, 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.
The Hon’ble Supreme Court in the case of Dr.J.J. Merchant vs. Shrinath Chaturvedi reported in (2002) 6 SCC 635, has 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.
The Hon’ble Supreme Court further observed that 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 vide Section 9 of Act 62 of 2002 w.e.f. 15.03.2003. 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 proceed 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. It was thus the Apex Court held that the time limit of 30 days plus 15 days in filing the response to the complaint be mandatorily and strictly adhered to.
With the above said submissions, the learned counsel for the respondent has prayed that the present revision petition be dismissed being devoid of any merit.
8. Having heard the learned counsel for the respondent and on perusal of the revision petition along with the records of the Consumer Complaint case No. 2 of 2019 including the impugned order dated 06.08.2019, it is found that the present revision petitioner received the notice along with complaint petition of consumer complaint on 18.04.2019. However, the present revision petitioner did not appear in person nor appointment of pleader was not filed before the learned District Forum, Imphal till 06.08.2019. The respondent could file his written version/written statement on or before 18.05.2019 i.e. 30 days from the date of receipt of notice i.e. 18.04.2019. In the event of extension of time by the Ld. District Forum not exceeding 15 days, the revision petitioner could file his written version on or before 02.06.2019 (Ref. Rohitash Kumar v. Om Prakash Sharma reported in (2013)11 SCC 451, Popat Bahiru Govardhane v. Special Land Acquisition Officer reported in (2013) 10 SCC 765, Dr.J.J. Merchant vs. Shrinath Chaturvedi reported in (2002) 6 SCC 635). However, the revision petitioner did not file his written version within a period of 30 days or such extended period not exceeding 15 days as may be granted by the Ld. District Forum, Imphal. The plea of the revision petitioner that on 28.05.2019 the proxy counsel namely Ms. Sanjeeka Devi undertook to file Vakalatnama along with written version/written statement on or before 25.06.2019 on behalf of the present revision petitioner who was arrayed as O.P.No.1 in the Consumer Complaint case no. 2 of 2019 has no significance/force in law inasmuch as there would be no provisions either in the Consumer Protection Act, 1986 or under the provisions of Order III Rule 1, Rule 2 and Rule 4 of the CPC, 1908 which would allow the said proxy counsel to represent the revision petitioner and to file written version without filing Vakalatnama in the Consumer Complaint Case No. 2 of 2019. Under any circumstances, the revision petitioner did not file the Vakalatnama along with its written version till 06.08.2019 which would be 68 days from the date of undertaking i.e. 28.05.2019 and 108 days
from the date of receipt of notice i.e. 18.04.2019.
9. This Commission by invoking its jurisdiction under Section 17(1)(b) of the Consumer Protection Act, 1986 could interfere with the impugned order dated 29.08.2019 only on jurisdictional matter. Section 17(1)(b) of the Consumer Protection Act, 1986 clearly provides that the State Commission in exercise of its Revisional jurisdiction can interfere the order of the learned District Forum, Imphal only when (i) District Forum has exercised a jurisdiction not vested in by law or (ii) has failed to exercise a jurisdiction so vested or (iii) has acted to exercise its jurisdiction illegally or with material irregularity. Section 17(1)(b) of the Consumer Protection Act, 1986 is pari materia with Section 115 of the Code of Civil Procedure, 1908. Civil Court similarly in exercise of its jurisdiction under Section 115 of the Code of Civil Procedure, 1908 can interfere with the order of the Subordinate court if such subordinate court appears:-
(a) to have exercised a jurisdiction not vested in it by law, or
(b) to have failed to exercise a jurisdiction so vested, or
(c) to have acted in the exercise of its jurisdiction illegally or with material irregularity.
No doubt, it is no more res-integra that the Revisional Court can interfere with the order of the Subordinate Court or jurisdictional matters.
10. In the present revision petition, the Ld. District Forum proceeded ex-parte against the Revision Petitioner on 06.08.2019 in the Consumer Complaint No.2 of 2019 when the petitioner failed to appear either in person or to file appointment of counsel i.e. Vakalatnama inspite of receiving the notice accompanied with the Complaint Petition on 18.04.2019 and thereafter to file its written version within a maximum period of 45 days from the date of receipt of the notice. Consequently, we are constrained to hold that no jurisdictional error, or a legal principle ignored, or miscarriage of justice. We find the impugned order of the Learned District Forum, Imphal to be well-appraised and well-reasoned.
11. For the foregoing reasons, we are not interfering with the order dated 06.08.2019 passed by the learned District Forum, Imphal in Complaint Case No. 2 of 2019. Thus, it is held that the Revision Petition is misconceived and devoid of merit, and the same is, therefore, dismissed in limine.
12. Registry is directed to send back the records of the Complaint Case No.2 of 2019 to the learned District Consumer Disputes Redressal Forum, Imphal now District Commission, Imphal along with a copy of this Judgment and order immediately with the direction to dispose of the Consumer Complaint Case No. 2 of 2019 as expeditiously as possible preferably within two months from the date of receipt of this order without fail. Registry shall also send the copy of this order to the parties immediately.
13. Parties are directed to appear before the Ld. District Forum, Imphal on 28.09.2021 without fail for further proceeding of the Complaint Case No. 2 of 2019.
