KAD HOUSING PVT. LTD. & ANR. vs M.L. VARMA & ANR.

This first appeal has been filed under section 19 read with 21(a)(ii) of the Consumer Protection Act, 1986 against the impugned interim order dated 14.01.2016, passed by the Delhi State Consumer Disputes Redressal Commission (hereinafter referred to as ''the State Commission'') in Consumer Complaint No. 550/2014, vide which, the appellants/OPs were ordered to be proceeded against exparte, for non-appearance before the State Commission on 14.01.2016 and the complainant was asked to produce their evidence by way of affidavit within 6 weeks. It has been averred in the memo of appeal that notice of the complaint was delivered to the office address of the petitioners, but it was misplaced by the security personnel of their office. As such, the petitioners were unaware of the proceedings and could not inform their counsel and hence, appearance could not be made on the given date. The petitioner had no knowledge about the proceedings on 14.01.2016 as well. On 29.01.2016, the petitioner were able to lay their hands on the notice sent by the State Commission, while searching for certain documents in their office and informed their counsel immediately. The present appeal was then filed after obtaining certified copy of the impugned order. It has been stated that the petitioners had good case on merits and they should not be penalised for the error committed by their security personnel. The Ld. Counsel for the appellants also stated the same facts during arguments, saying that the appeal had been filed within limitation from the date of knowledge.

The ld. counsel for the respondent stated that the present appeal was not maintainable as it was beyond limitation. Moreover, the appellants have not been appearing before the State Commission despite service and hence, no further relief could be granted to them. The Ld. Counsel also mentioned that written statement to the consumer complaint could only be filed within the time permissible under section 13 of the Consumer Protection Act, 1986, which was a period of 30 days extendable by 15 days from the date of service of the notice, as per a recent judgment made by the Hon''ble Supreme Court in Civil Appeal No. 10941 - 10942 / 2013 on 04.12.2015, " New India Assurance Co. Ltd. Vs. Hilli Multipurpose Cold-storage Private Limited " [as reported in 15(6) RAG 551]. The order passed by the State Commission was, therefore, in accordance with law and should be upheld.

The Ld. counsel also stated that the consumer complaint had been duly admitted by the State Commission vide their order dated 01.12.2011 and thereafter, notice was ordered to be issued to the appellants/OPs.

The Ld. Counsel for the appellant has referred to the order made by the Hon''ble Supreme Court on 11.02.2016 in Civil Appeal No. 1083-1084/2016, Bhasin Infotech and Infrastructure Pvt. Ltd. vs. Grand Venezia Buyers Association , and allied matters, saying that the issue of extension of time for filing the written statement / reply etc. had been referred to a Five-Member Bench of the Hon''ble Supreme Court. In view of this order, the appellant should be allowed to file their written statement. The Ld. Counsel has also drawn attention to two orders dated 04.07.2016, passed by this Commission in CC No. 882/2015 and CC No. 1030/2015, saying that extension of time for filing the written statement had been allowed subject to payment of cost by the OPs, but in the said cases, the other party did not have any objection for doing so.

I have examined the entire material on record and given a thoughtful consideration to the arguments advanced before me.

As per the version given in the memo of appeal, notice sent by the State Commission in proceedings in consumer complaint No. 550/2014 filed by the respondent, was received by the security personnel in their office who misplaced the same. The petitioners, therefore, could not appear before the State Commission on the fixed date of hearing. The matter was listed on the next date of hearing on 14.01.2016, but the petitioners did not have any information about the said date. However, while searching for certain documents in their office, the petitioners were able to lay hands on the said notice only on 29.01.2016. It is evident, therefore, that the notice sent by the State Commission was duly received in the office of the petitioners, but they did not appear before the State Commission on the date fixed for hearing. It is also made out that before sending the said notice, the consumer complaint was duly admitted by the State Commission. It is evident, therefore, that in terms of section 13(2)(a) of the Consumer Protection Act, 1986, it was obligatory on the part of the appellants/OPs to file the written version to the complaint within the prescribed period of 30 days, extendable by 15 days. The plea taken by them that the notice got misplaced by the security personnel does not help them to seek extension of time on this ground. In accordance with the judgment passed by the Hon''ble Supreme Court on 04.12.2015 in " New India Assurance Co. Ltd. Vs. Hilli Multipurpose Cold-storage Private Limited " (supra), the time permissible under section 13(2)(a) cannot be extended. The contention of the ld. counsel for the appellant that the matter stands referred to a Five-Member Bench of the Hon''ble Supreme Court cannot be accepted because as on date, the order passed by the Hon''ble Apex Court on 04.12.2015 is in force and has to be relied upon. In the interest of justice, however, the prayer made by the appellants in the appeal, seeking permission to participate in proceedings before the Delhi State Commission is granted. The present appeal is, therefore, allowed and the State Commission is directed to allow the appellants/OPs to join the proceedings before them. In so far as their right to file written version/evidence is concerned, the State Commission shall take decision in accordance with law.