Ambience Island Apartment Owners vs RAJ SINGH

THE key question which falls for consideration is, whether Section 13(1)(a) of the Consumer Protection Act, which runs as follows, "(1)(a) refer a copy of the admitted complaint, within twenty-one 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 thirty days or such extended period not exceeding fifteen days as may be granted by the District Forum " is mandatory or directory? THEre are three authorities of Hon ''ble Apex Court which are germane and wee bit divergent to the present controversy.

THE complaint itself mentions about a judgment rendered by a Bench consisting of three judges of the Supreme Court reported in Dr. J. J. Merchant & Ors. Vs. Shrinath Chaturvedi III(2002 CPJ 8 (SC) 8, wherein it was held : " ..... From the aforesaid section, it is apparent that on receipt of the complaint, the opposite party is required to be given notice 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 or the Commission. 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, the legislative mandate of disposing of the cases within three or five months would be defeated. "

The counsel for the complainants has also cited another authority reported in Shaleem Bhai and Ors. Vs. State of Maharashtra and Ors. AIR 2003 SC 759 wherein it was held: "9. A perusal of O. VII R11 C.P.C. makes it clear that the relevant facts which need to be looked into for deciding an application thereunder are the averments in the plaint. The trial Court can exercise the power under O.VII R. 11 C.P.C. at any stage of the suit before registering the plaint or after issuing summons to the defendant at any time before the conclusion of the trial. For the purposes of deciding an application under Cls. (a) and (d) of R.11 of O.VII C.P.C. the averments in the plaint are germane: the pleas taken by the defendant I the written statement would be wholly irrelevant at that stage, therefore, a direction to file the written statement without deciding the application under O.7 R. 11 C.P.C. cannot but be procedural irregularity touching the exercise of jurisdiction by the trial Court. The order, therefore, suffers from non-exercising of the jurisdiction vested in the Court as well as procedural irregularity. The High Court, however, did not advert to these aspects. 10. We are, therefore, of the view that for the aforementioned reasons, the common order under challenge is liable to be set aside and we, accordingly, do so. We remit the cases to the trial Court for deciding the application under O.7 R. 11 C.P.C. on the basis of the averments in the plaint, after affording an opportunity of being heard to the parties in accordance with law. This authority hardly dovetails with facts of this case under the Consumer Protection Act.

ON the other hand, learned counsel for opposite parties 1, 2 and 3 has invited our attention towards another authority of the Apex Court reported in Topline Shoes Ltd. vs. Corporation Bank AIR 2002 SC 2427 by a bench consisting of two judges, wherein it was held: "We have, however, already held that the provision saying that extended time may not exceed 15 days is directory in nature. It does not mean the orders extending the time to file reply may be passed repeatedly unmindful of and totally ignoring the provision that the extension may not exceed 15 days. This provision has always to be kept in mind while passing an order extending the time to file a reply to the petition. It is another matter, as we have found that in case time is extended exceeding 15 days, it may not be kind of an illegality which may deny or deprive the respondent to file his reply within the time granted by the Forum/Commission. "

THIS order shall decide two applications moved by the complainants under Section 13 of the Consumer Protection Act, 1986 read with Section 151 of Code of Civil Procedure, 1908. The first application is filed against OPs 1, 2 & 3. It is averred that the complaints were admitted by this Commission on 14.01.2005. After service, OPs are required to submit their replies, within a period of 30 days. This application is dated 18.05.2005, till then, no reply was filed by the OPs. The statutory period of 30 days to file the reply had lapsed. It was prayed that the right of the OPs 1 to 3 to file their reply be forfeited. The second application has been filed against OP4 with the same allegations and with the same prayer.

THE opposite parties have contested the present applications. The OPs 1, 2 and 3 moved an application under Sections 149 and 151 of CPC, 1908, for extension of time in filing of written statement/reply. It is submitted that the notice was served on the OPs in the first week of February, 2005. It is explained that some documents were not complete and legible but the OPs, on their own, constructed file with their own documents. It is explained that the present complaint has been filed by 66 Flat owners. The OPs in order to verify the claim of the said Flat owners, contacted them to know their grievances, particularly, as alleged in the complaint and also contacted the Association of the OPs, namely, Ambience Island Lagoon Apartments Association. Most of the flat owners have denied having filed any such petition. It took time to contact each and every person and find out their grievances. It took some time to prepare and draft the written statement in the above said case. The entire record was collected. The reply was drafted and the same was filed on or about 18.05.2005, after serving copy of the same on the counsel for the complainants. The same was filed much earlier to the first date of hearing, i.e. 05.07.2005. It is prayed that delay should be condoned. Time be extended and written statement be taken on record. In their reply, OPs 1, 2 & 3 took the same defence.

IT is explained that the legal affairs of the opposite party No. 4 are being handled by one Shri C. N. Ramamurthy. He is one of the partners of opposite party No. 4. Mr. Ramamurthy has acquired the skills of interacting with the lawyers, understanding the technicalities of the cases and thus responding as per the instructions of the counsel. The wife of Mr. C. N. Ramamurthy was bed ridden and was in an awful stage when the summons were received by him. She was suffering from the chronic renal failure and was administered with the dialyses treatment on day to day basis. During the period in question her health had badly deteriorated and he was assured by the counsel that his urgency is more compelling and a delay of few days could be well explained to the Hon ''ble Court which would appreciate its plausibility and would be gracious to condone this unavoidable and unintentional delay. Learned counsel for the petitioner pointed that since then Mrs. C. N. Ramamurthy has expired and her husband Mr. Ramamurthy has also expired. Learned counsel however, submitted that the explanation given by the opposite party No. 4 is satisfactory and does not press his application against opposite party No. 4.

LEARNED counsel for the petitioner vehemently argued that the authority given by three Judges bench should be preferred to the judgment given by two judges.

FOR the following reasons we clap no importance to these arguments. We have perused the ordersheet maintained by this Court. The case was admitted on 14.1.2005. The said order is reproduced as hereunder:- "Admit. Issue notice to the opposite parties returnable on 5.7.2005. "

There is no direction given by this Commission to the opposite parties that their version of the case be filed within 30 days. According to the opposite parties reply was drafted and filed on 18.5.2005. The written statement was filed by opposite party No. 4 on 30.3.2005.

LEARNED counsel for the complainant did not pick up a conflict with the explanation given by opposite party No. 4. The authority in Dr. J. J. Merchant & Ors. Vs. Shrinath Chaturvedi (supra) has got no application to this case because no such direction was given by the Commission. The Commission could have given this direction on 5.7.2005 or it should have been given on 14.1.2005 when the notice was sent.

IT must be borne in mind that written statements were filed by both the opposite parties some 8 years back. All the parties have led their evidence. Under the circumstances, we are of the considered view that the right to forfeit the written statement does not vest with this Commission. This is a peculiar case which has got its own facts. Moreover, the explanation given by both the respondents are quite reasonable and just. Consequently, we dismiss both the applications and fix the case for final arguments on 19.9.2013.