New India Assurance Co. Ltd Vs Hilli Multipurpose Cold Storage Pvt Ltd

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REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NOS.10941-10942 OF 2013

NEW INDIA ASSURANCE CO. LTD. .....APPELLANT

VERSUS

HILLI MULTIPURPOSE COLD STORAGE PVT. LTD. …..RESPONDENT

WITH

C A NOS.10943-10944 OF 2013, C.A. NO.1774 OF 2014,

SLP (C) NO.2833 OF 2014 & SLP (C) Nos.11257-11258 OF 2014.

J U D G M E N T

ANIL R. DAVE, J.

1. While considering Civil Appeal No.D 35086 of 2013, this

Court expressed its doubt in relation to the period of limitation

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for filing the written statement or giving version of the

opponent as per the provisions of Section 13(2)(a) of the

Consumer Protection Act, 1986 (hereinafter referred to as ‘the

Act’). The question was, whether the said issue was governed

by the law laid down by this Court in Dr. J.J. Merchant &

Ors. v. Shrinath Chaturvedi, [(2002) 6 SCC 635] or Kailash

v. Nanhku & Ors. [(2005) 4 SCC 480]. The following order

was passed by this Court in the aforestated Civil Appeal on

29th November, 2013:

“1. Heard Mr. Vahanvati, learned Attorney General, in support of these appeals. Mr. Guru Krishna Kumar, learned senior counsel, appears for the respondent(s).

2. Learned Attorney General points out that the judgment in Dr. J.J. Merchand & Ors. vs. Shrinath Chaturvedi, reported in [2002(6) SCC 635], has been considered and a different view has been taken in Kailash vs. Nanhku & Ors., reported in [2005(4) SCC 480], on the issue of limitation. The matters, therefore, require consideration.

3. Delay condoned.

4. The appeals are admitted.

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5. Since this point of law requires to be resolved, we request the Hon’ble the Chief Justice to place these appeals before a larger Bench …………………”

2. In the aforestated circumstances, these matters have

been placed before this three-Judge Bench so as to ascertain

whether the law laid down in the case of Dr. J.J. Merchant

(supra) still holds the field or whether the law has been

changed in view of the later judgment delivered by this Court

in the case of Kailash (supra).

3. The whole issue centers round the period within which

the opponent has to give his version to the District Forum in

pursuance of a complaint, which is admitted under Section 12

of the Act. Upon receipt of a complaint by the District Forum,

if the complaint is admitted under Section 12 of the Act, a

copy of the complaint is to be served upon the opposite party

and as per provisions of Section 13 of the Act, the opposite

party has to give his version of the case within a period of 30

days from the date of receipt of the copy of the complaint.

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There is a further provision in Section 13(2)(a) that the District

Forum may extend the period, not exceeding 15 days, to the

opposite party for giving his version. The relevant Section of

the Act reads as under:

“13. Procedure on admission of complaint – (1) …………………….

(2) The District Forum shall, if the complaint admitted by it under section 12 relates to goods in respect of which the procedure specified in sub- section (1) cannot be followed, or if the complaint relates to any services, -

(a) refer a copy of such complaint to the opposite party 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;

(b) ………………………………………………………….”

Thus, upon plain reading of the aforestated Section, one

can find that the opposite party is given 30 days’ time for

giving his version and the said period for filing or giving the

version can be extended by the District Forum, but the

extension should not exceed 15 days. Thus, an upper cap of

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45 days has been imposed by the Act for filing version of the

opposite party.

4. The question arose in the case of Dr. J.J. Merchant

(supra) whether the Forum can grant time beyond 45 days to

the opposite party for filing its version. After considering the

aforestated section in the light of the object with which the Act

has been enacted, a three-Judge Bench of this Court came to

the conclusion that in no case period beyond 45 days can be

granted to the opposite party for filing its version of the case.

5. Without discussing the aforestated three-Judge Bench

Judgment in detail, we now turn to another judgment which

has been referred to by the referring Bench. The other

judgment which has been referred to is Kailash (supra),

which pertains to Election Law. The issue involved in the said

case was whether time limit of 90 days, as prescribed by the

proviso to Rule 1 of Order 8 of the Civil Procedure Code, is

mandatory or directory in nature. The said issue had arisen

in an election matter where the written statement was not filed

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by the concerned candidate within the period prescribed under

the relevant Election Law and the issue was whether in the

Election trial, delay caused in filing the written statement

could have been condoned.

6. After considering the provisions of Order VIII Rule 1 of

the Code of Civil Procedure, 1908 and several other judgments

pertaining to grant of time or additional time for filing written

statement or reply, in the interest of justice, this Court came

to the conclusion that the provisions of Order VIII Rule 1

C.P.C. are not mandatory but directory in nature and

therefore, in the interest of justice, further time for filing reply

can be granted, if the circumstances are such that require

grant of further time for filing the reply.

7. The judgment delivered in the case of Kailash (supra) is

later in point of time and while considering the said judgment,

judgment delivered in the case of Dr. J.J. Merchant (supra)

had also been considered by this Court.

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8. In the aforestated circumstances, we have now to

consider whether in a case under the provisions of the Act,

where a complaint has been filed and the opposite party has

not filed its version to the case within 30 days or within

extended period of 45 days, which at the most could have been

granted by the District Forum, the version given by the

opposite party can be accepted.

9. The learned counsel appearing for the complainant

submitted that the view expressed by the three-Judge Bench

of this Court in Dr. J.J. Merchant (supra) is absolutely just

and proper and is on the subject, with which facts of the

present case are concerned. The said case also deals with the

provisions of Section 13(2)(a) of the Act, whereas case of

Kailash (supra) pertains to an Election trial and under a

different Act.

10. According to the learned counsel appearing for the

complainant, in the instant case, in fact, there is no conflict

between the two judgments referred to hereinabove as the

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judgment delivered in Dr. J.J. Merchant (supra) was prior in

time and was on the subject of the Act. Looking at the

contents of the said judgment, it is clear that the said

judgment also pertains to the provisions with regard to grant

of time for filing version of the opposite party before the

District Forum. Once a judgment has been delivered by a

three-Judge Bench on the same subject and on the same

section, according to the learned counsel, there was no need to

re-consider the same.

11. On the other hand, the learned counsel appearing for the

other side contended that as per the view expressed in the

case of Kailash (supra), the District Forum can grant time

beyond 15 days to the other side for giving its version or reply.

The learned counsel submitted that the marginal note to

Section 13 of the Act reads “procedure on completion of

complaint’. Thus, the provisions incorporated in Section 13 of

the Act are merely procedural and are directory in nature, as

observed by this Court in the case of Kailash (supra).

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12. The learned counsel also referred to a judgment delivered

in the case of Topline Shoes Ltd. v. Corporation Bank

[(2002) 6 SCC 33]. This Court was faced with the same issue

in the aforestated case. After discussing the provisions of

Section 13(2) of the Act, this Court came to the conclusion

that procedural rules should not be considered as mandatory

in nature. In the said case, ultimately, this Court came to the

conclusion that provision contained in Section 13(2)(a) of the

Act is procedural in nature. According to the said judgment,

the object behind enactment of the Act is speedy disposal of

cases pending before the District Forum and therefore, it has

been provided that reply should be filed within 30 days and

the extension of time may not exceed 15 days. It has been

further observed that no penal consequences have been

provided in the case of extension of time beyond 15 days and

therefore, the said provision with regard to extension of time

beyond a particular limit is directory in nature and that would

not mean that extension of time cannot exceed 15 days.

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Relying upon the said judgment and the judgment delivered in

the case of Kailash (supra), the learned counsel submitted

that as Dr. J.J. Merchant (supra) has not been followed in a

later case though it was considered in the case of Kailash

(supra), the correct legal position would be to treat the said

provision with regard to maximum period for filing the reply is

directory and not mandatory.

13. The learned counsel further submitted that some of the

provisions of Civil Procedure Code do apply to the District

Forum and in the light of the said fact, in his submission, the

provisions of Section 13(2)(a) of the Act are merely directory

and not mandatory in nature.

14. The learned counsel also submitted that if further time is

not granted, irreparable damage would be caused to the other

side and in a case where the other side/respondent is staying

at a distant place, it might not be possible for the

respondent/other side to file its version even within 45 days

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and therefore, in the interest of justice, the view expressed in

the case of Kailash (supra) should be accepted.

15. Upon hearing the concerned counsel and upon perusal of

both the judgments referred to hereinabove, which pertain to

extension of time for the purpose of filing written statement,

we are of the opinion that the view expressed by the three-

Judge Bench of this Court in Dr. J.J. Merchant (supra)

should prevail.

16. In the case of Dr. J.J. Merchant (supra), which is on the

same subject, this Court observed as under:

“13. The National Commission or the State Commission is empowered to follow the said procedure. 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 trail, 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 to, the legislative mandate of

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disposing of the cases within three or five months would be defeated.

14. For this purpose, even Parliament has amended Order 8 Rule 1 of the Code of Civil Procedure, which reads thus:

“1. Written statement. – The defendant shall, within thirty days from the date of service of summons on him, present a written statement of his defence:

Provided that where the defendant fails to file the written statement within the said period of thirty days, he shall be allowed to file the same on such other day, as may be specified by the court, for reasons to be recorded in writing, but which shall not be later than ninety days from the date of service of summons.”

15. Under this Rule also, there is a legislative mandate that written statement of defence is to be filed within 30 days. However, if there is a failure to file such written statement within the stipulated time, the court can at the most extend further period of 60 days and no more. Under the Act, the legislative intent is not to give 90 days of time but only maximum 45 days for filing the version of the opposite party. Therefore, the aforesaid mandate is required to be strictly adhered to.”

17. We are, therefore, of the view that the judgment delivered

in the case of Dr. J.J. Merchant (supra) holds the field and

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therefore, we reiterate the view that the District Forum can

grant a further period of 15 days to the opposite party for filing

his version or reply and not beyond that..

18. There is one more reason to follow the law laid down in

the case of Dr. J.J. Merchant (supra). Dr. J.J. Merchant

(supra) was decided in 2002, whereas Kailash (supra) was

decided in 2005. As per law laid down by this Court, while

deciding the case of Kailash (supra), this Court ought to have

respected the view expressed in Dr. J.J. Merchant (supra) as

the judgment delivered in the case of Dr. J.J. Merchant

(supra) was earlier in point of time. The aforestated legal

position cannot be ignored by us and therefore, we are of the

opinion that the view expressed in Dr. J.J. Merchant (supra)

should be followed.

19. Our aforestated view has also been buttressed by the

view expressed by this Court in the case of Central Board of

Dawoodi Bohra Community & Anr. v. State of

Maharashtra & Anr. [(2005) 2 SCC 673], wherein a question

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had arisen whether the law laid down by a Bench of a larger

strength is binding on a subsequent Bench of lesser or equal

strength. After considering a number of judgments, a five-

Judge Bench of this Court, finally opined as under :

“12. Having carefully considered the submissions made by the learned senior counsel for the parties and having examined the law laid down by the Constitution Benches in the abovesaid decisions, we would like to sum up the legal position in the following terms :-

(1) The law laid down by this Court in a decision delivered by a Bench of larger strength is binding on any subsequent Bench of lesser or co-equal strength.

(2) A Bench of lesser quorum cannot disagree or dissent from the view of the law taken by a Bench of larger quorum. In case of doubt all that the Bench of lesser quorum can do is to invite the attention of the Chief Justice and request for the matter being placed for hearing before a Bench of larger quorum than the Bench whose decision has come up for consideration. It will be open only for a Bench of coequal strength to express an opinion doubting the correctness of the view taken by the earlier Bench of coequal strength, whereupon the matter may be placed for hearing before a Bench consisting of a quorum larger than the one which pronounced the

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decision laying down the law the correctness of which is doubted.

(3) The above rules are subject to two exceptions : (i) The abovesaid rules do not bind the discretion of the Chief Justice in whom vests the power of framing the roster and who can direct any particular matter to be placed for hearing before any particular Bench of any strength; and

(ii) In spite of the rules laid down hereinabove, if the matter has already come up for hearing before a Bench of larger quorum and that Bench itself feels that the view of the law taken by a Bench of lesser quorum, which view is in doubt, needs correction or reconsideration then by way of exception (and not as a rule) and for reasons given by it, it may proceed to hear the case and examine the correctness of the previous decision in question dispensing with the need of a specific reference or the order of Chief Justice constituting the Bench and such listing. Such was the situation in Raghubir Singh and Hansoli Devi.”

20. In view of the aforestated clear legal position depicted by

a five-Judge Bench, the subject is no more res integra. Not

only this three-Judge Bench, but even a Bench of coordinate

strength of this Court, which had decided the case of Kailash

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(supra), was bound by the view taken by a three-Judge Bench

in the case of Dr. J.J. Merchant (supra).

21. In view of the aforestated legal position, we are of the

view that the law laid down by a three-Judge Bench of this

Court in the case of Dr. J.J. Merchant (supra) should prevail.

The Reference is answered accordingly.

………................................J. (ANIL R. DAVE)

………................................J. (VIKRAMAJIT SEN)

……….................................J.

(PINAKI CHANDRA GHOSE) NEW DELHI DECEMBER 04, 2015.