Accanoor Associates vs Akanksha Co -operative Housing Ltd.

BY this order, we propose to dispose of the above noted revision petitions arising out of the orders dated 29.01.2013 and 30.10.2013 in consumer complaint No. 10/151 filed by the respondent in State Consumer Disputes Redressal Commission Maharashtra, Mumbai ( in short, ''the State Commission'')

THE impugned orders dated 29.01.2013 and 30.10.2013 are reproduced as under: 29.01.2013

Mr. Anand Patwardhan, Advocate for the complainant. Opponent Nos. 1 & 2 and their counsels absent. Notice after admission to both the opponents 1 and 2 sent on 04.10.2012 and they were duly served as per the postal acknowledgments on record but remained absent. Hence, complaint to proceed in their absence. In response to the public notice issued, published in daily "Navshakti" issue dated 19th June 2012 and "The Free Press Journal" issue dated 19th June 2012 (copies of which are on record), no opponent no.3 appeared. Since matter is ex -parte and no evidence is filed. Complainant to file affidavit in evidence as per provisions of Section 13(2)(b)(ii) and 13(4) of the Consumer Protection Act, 1986. Matter stands adjourned to 10.04.2013.

30.10.2013

Adv. Ajay Pawar is present for the complainant and he files letter of authority issued by Mr.Patwardhan -advocate on record for the complainant. Adv. Poonam Shirke is present for the opponent. She files letter of authority issued by Mr.S.B.Rao -Advocate for the opponent. None is present for 2 & 3.

Complainant files affidavit of evidence along with documents on record. Copy is served on the opponent. Opponent no.1 moved an application for condonation of delay in filing the written version of the opponent on record. Adv. Shirke is not in position to state under which provision the said application is moved. Order to proceed ex parte against all the opponent has already been passed. The Commission cannot set aside or review its own orders. The complainant has closed his evidence by filing pursis -Since the evidence part in the complaint is over, matter now stands adjourned for final hearing. In the meantime, both the parties shall file brief notes of arguments in terms of regulation 13(2) of the Consumer Protection Regulations, 2005 two days before next date before Registrar (Legal) of the Commission. Registrar (Legal) shall accept the same. Adjourned to 18.03.2014.

Mr. S.S.Pawar, Advocate for the petitioner has contended that the petitioner has been compelled to file this revision petition for setting aside ex parte order dated 29.01.2013 because in view of the judgment of the Supreme Court in the matter of Rajeev Hitender Pathak & Ors. Vs. Achyut Kashinath Karekar & Anr. : (2011) 9 SCC 541, the State Commission has no power to review its own order. It is contended that the absence of the petitioner on hearing dated 29.01.2013 was unintentional. The petitioner was under the impression that his counsel would appear on the date of hearing particularly when the preliminary affidavit supposed to be filed in response to the complaint was ready on 24.01.2013 and that affidavit could not be filed on 29.01.2013 because the counsel could not reach the State Commission in time and when he reached there, case had already been proceeded ex parte.

WE do not find merit in this contention. The petitioner in the revision petition has taken a plea that the preliminary affidavit supposed to be filed in response to the complaint was prepared on 24.01.2013. From this, there is no dispute left that the petitioner OP No.1 was served with the notice of the complaint. The explanation for non appearance of the counsel in time on the date of hearing is not acceptable for the reason that neither application for setting aside of the impugned ex parte order nor any revision petition against the said order was filed. As per the record, on 10.04.2013 Mr.S.B.Rao, Advocate appeared on behalf of the petitioner OP No.1 before the State Commission. No steps for getting the impugned order set aside were taken by the petitioner till then. Even thereafter, neither any revision petition nor any application for setting aside ex parte order was moved by the petitioner till 11.07.2013 on which date Mr.S.B.Rao, Advocate for the petitioner appeared in the State Commission and sought time to file proper application for accepting the written version of OP No.1 belatedly. From the aforesaid conduct of the petitioner, it is obvious that the petitioner was not serious about prosecuting the complaint and he was grossly negligent in defending the consumer complaint filed against him. Under these circumstances, we do not find any justification of the prayer for setting aside the ex parte order dated 29.01.2013. The revision petition No. 2049 of 2014 is, therefore, dismissed.

AS regards the impugned order dated 30.10.2013, learned counsel for the petitioner has contended that aforesaid order is not sustainable for the reason that it is a non speaking order and that the State Commission has misconstrued the application of the petitioner seeking condonation of delay in filing of the written statement beyond the prescribed period and the extension of time to file written statement as an application for setting aside / review of ex parte order dated 29.01.2013. Learned counsel has thus urged us to set aside the impugned order, condone the delay in filing of written statement and allow the petitioner to contest the complaint on merits. We do not find merit in the above contention. Of -course the impugned order is not happily worded and it does not give elaborate reasons for declining the permission to the service provider petitioner OP No.1 to file the written statement to the complaint. The fact remains that the State Commission dismissed the application for condonation of delay in filing of written statement because learned counsel for the petitioner could not explain under which provision of law, the application of condonation was moved and also because of the reason that petitioner had already been proceeded ex parte vide proceedings dated 29.01.2013. We do not find any reason to fault the final conclusion of the State Commission in the impugned order because of following reasons: (i). Section 13 of the Consumer Protection Act, 1986 ( in short, ''the Act) deals with the procedure to be followed by District Consumer Forum on admission of consumer complaint. Section 18 of the Act provides that the above noted procedure is also applicable to the State Commission for disposal of original complaints.

(ii). Section 13 (2) (a) provides the time limit for filing of written statement in response to the notice of the consumer complaint admitted by the concerned fora. According to this provision, the OP is required to file his response to the consumer complaint within a period of 30 days from the date of service of notice which period can be extended upto a period not exceeding fifteen days by the fora concerned.

ON perusal of the proceedings dated 29.01.2013 of the State Commission recorded above, it is clear that the notice of the complaint after admission was sent to the petitioner OP No.1 on 04.10.2010 and the petitioner failed to put in appearance despite of service of notice by publication in local newspapers "Navshakti" and "The Free Press Journal" both dated 19.06.2012 as also by the registered AD post. We are not aware of the date on which the registered notice was served on the OP. However, it can be safely assumed that notice must have been served on the petitioner latest by the end of October 2012. If that is taken as date of service, then the petitioner was required under section 13 (2) (a) of the Act to file his written statement to the complaint by the end of November 2012, which period, the complaint could have extended upto 15 days by seeking permission from the State Commission. The written statement, however was not filed within the prescribed period of 30 days plus extended period of 15 days by the petitioner OP No.1. As per the history of this case, Mr.S.B.Rao, Advocate for the petitioner appeared before the State Commission on hearing dated 10.04.2013. Even on that date, no application for condonation of delay in filing of written statement or for extension of time to file written statement was moved. Even on hearing dated 11.07.2013, no such application was moved, instead Mr.S.B.Rao, Advocate for the petitioner sought time to file written statement belatedly. From this, it is evident that the petitioner had been grossly negligent in the conduct of this case and he has miserably failed in filing his written statement within the time prescribed by section 13 (2) (a) of the Act. Thus, in our view, in view of the inordinate delay in moving an application seeking condonation of delay in filing written statement, the State Commission was right in declining to allow the application for condonation of delay.

FURTHER , section 13 (2) (b) (ii) of the Act confers power upon the fora below to proceed ex parte against the opposite party where the OP omits or fails to take any action to represent his case within the time given by the fora below. Admittedly in the instant case, the petitioner was proceeded ex parte because of his failure to respond to the notice issued by the State Commission on 29.01.2013. The effect of ex parte order is that complainant''s right to file written statement stood forfeited particularly when the prescribed period for filing written statement had already expired and he could only join the later proceedings. Therefore, there was no occasion for the State Commission to allow the petitioner to file written statement belatedly when ex parte order dated 29.01.2013 was in existence. On this count also, the State Commission was right in declining to condone the delay and granting permission to the petitioner to file the written statement. It is pertinent to note that by virtue of amendment dated 15.03.2003 Section 13 (3A) has been added to the Act which requires the consumer fora to decide the consumer complaint as expeditiously as possible and endeavour shall be made to decide the complaint within a period of three months from the date of service of notice on the OP and if the complaint requires analysis or testing, it should be decided within the period of five months, if possible. This clearly shows the intent of legislature that consumer disputes should be decided expeditiously. In the instant case, the petitioner who is a service provider, obviously has been grossly negligent in conduct of his defence and he moved an application seeking condonation of delay after the expiry of the period provided in section 13 (3A) for disposing the complaint. Therefore, also, the application for condonation of delay has been rightly rejected.

IN view of the discussion above, we do not find any merit in the above noted revision petitions. Revision petitions are, therefore, dismissed in limine with no order as to costs.