Authored by Hammurabi & Solomon Partners

Introduction

The Hon’ble Supreme Court in the judgment dated 04.03.2020 in the matter of New India Assurance Company Ltd. vs. Hilli Multipurpose Cold Storage (“New India Assurance Judgment”) has adjudicated upon the following questions:

a) Whether the Ld. Consumer Forum has power to extend the filing of written statement beyond the period of 45 days as prescribed under the provisions of Section 13(2) (a) of the Consumer Protection Act, 1986?

b) Secondly, what would be the commencing point of limitation of 30 days stipulated under the aforesaid Section?

The present paper (1) identifies the issues from findings of the Hon’ble Court in the Summary of Judgment and Guidelines (2) discusses the provision of Section 13(2)(a) of the Consumer Protection Act, 1986 and (3) discusses the interpretation of words ‘shall’ and ‘may be’ (4) discusses the literal rule of interpretation (5)the intent and object of the Consumer Protection Act is to provide speedy justice (6) judgments of the courts wherein it has been held that time beyond 45 days cannot be granted (7) discusses the commencing point of limitation of 30 days as mentioned under Section 13(2) (a) of the Consumer Protection Act, 1986?

Summary of Judgment and Guidelines in New India Assurance Judgment

The Hon’ble Supreme Court has made the following observations:-

The Ld. Consumer Forums do not have the power to extend the time beyond 45 days as prescribed under the Consumer Protection Act, 1986 for filing of written version by the Opposite Party;

Commencing point of limitation of 30 days under Section 13 of the Consumer Protection Act, 1986 would be from the date of receipt of the notice accompanied with the complaint by the Opposite Party, and not mere receipt of the notice of the complaint

Issues dealt by the Supreme Court

a) Whether the Ld. Consumer Forum has power to extend the filing of written statement beyond the period of 45 days as prescribed under the provisions of Section 13(2) (a) of the Consumer Protection Act, 1986?

Section 13 of the Consumer Protection Act, 1986 provides for the Procedure on admission of Complaint. The provision is mentioned herein-below for ready reference:

"Section 13

Procedure on admission of complaint.-

(2) The District Forum shall, if the complaints admitted by it under section 12 relates to goods in respect of which the procedure specified in subsection (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) where the Opposite party, on receipt of a copy of the complaint, referred to him under clause (a) denies or disputes the allegations contained in the complaint, or omits or fails to take any action to represent his case within the time given by the District Forum, the District Forum shall proceed to settle consumer dispute,

The bare reading of the provisions of Section 13(2) (a) makes it clear that the copy of the complaint which is to be sent to the opposite party is to be with the direction to give its written within a period of 30 days. It further provides that such period of 30 days can be extended by the District Forum, but not beyond 15 days i.e. the maximum period for filing of written version is 45 days from the receipt of the notice along with complaint copy

Discussion & Interpretation of the word ‘shall’ used in Section 13(2) of the Act, 1986

The Hon’ble Supreme Court in State of Haryana v. Raghubir Dayal, (1995) 1 SCC 133 held that:

“……the use of the word ‘shall’ is ordinarily mandatory but it is sometimes not so interpreted if the scope of the enactment, on consequences to flow from such construction would not so demand. Normally, the word ‘shall’ prima facie ought to be considered mandatory but it is the function of the court to ascertain the real intention of the legislature by a careful examination of the whole scope of the statute, the purpose it seeks to serve and the consequences that would flow from the construction to be placed thereon. The word ‘shall’, therefore, ought to be construed not according to the language with which it is clothed but in the context in which it is used and the purpose it seeks to serve. The meaning has to be ascribed to the word ‘shall’ as mandatory or as directory, accordingly. Equally, it is settled law that when a statute is passed for the purpose of enabling the doing of something and prescribes the formalities which are to be attended for the purpose, those prescribed formalities which are essential to the validity of such thing, would be mandatory. However, if by holding them to be mandatory, serious general inconvenience is caused to innocent persons or general public, without very much furthering the object of the Act, the same would be construed as directory”

The Hon’ble Supreme Court in State of U.P. v. Babu Ram Upadhya, AIR 1961 SC 751 observed that:

Therefore, as held in Catena of judgments the use of the word “shall” prima facie ought to be considered mandatory but it is the function of the court to ascertain the real intention of the legislature by a careful examination of the whole scope of the statute, the purpose it seeks to serve and the consequences that would flow from the construction to be placed thereon.

Literal Rule of Interpretation

The Hon’ble Supreme Court in All Kerala Parents' Assn. of Hearing Impaired v. State of Kerala, (2018) 2 SCC 410 held that:

“…It is well settled that when the language of any statutory provisions is clear and unambiguous, it is not necessary to look for any extrinsic aid to find out the meaning of the statute inasmuch as the language used by the legislature is the indication of the legislative intent. We fail to understand as to how and on what principles of construction the High Court has given a construction to the provisions of Section 39 not only by doing violence to the language of Section 39, but also rewriting the provisions of Section 39”

The Hon’ble Supreme Court in Govt. of A.P. Vs Corporation Bank, (2007) 9 SCC 55 observed that

“In construing a statutory provision, the first and foremost rule of construction is the literal construction. If the provision is unambiguous and if from that provision, the legislative intent is clear, we need not call into aid the other rules of construction. The other rules of construction are invoked when the legislative intent is not clear…”

Therefore, by using the word ‘ shall’ in Section 13(2)(a) of the Act, 1986 the intention use of the legislature seems to be very clear that the Opposite Party would get the time of 30 days, and in addition another 15 days at the discretion of the Forum to file its response. No further discretion of granting time beyond 45 days is intended under the Act.

Provisions of Order VIII Rule 1 of Code of Civil Procedure, 1908 not applicable on Consumer Protection Act, 1986

It is pertinent to highlight herein that the language of Section 13(2) of the Consumer Protection Act, 1986 is not pari materia to Order VIII Rule 1 of CPC, 1908.

Time of 120 days as provided under Order VIII Rule 1 CPC read with Order VIII Rule 10 CPC, 1908 is actually meant not to be mandatory, but only directory and courts have discretion to grant the time beyond the period of 120 days. However, Section 13(2)(2)(b) (ii) clearly provides the consequence of the complaint to be proceeded ex-parte against the Opposite Party if the Opposite party fails to file its written version within the time granted under Section 13(2)(a) i.e. within a period of 45 days. This implies that the time provided under Section 13(2)(a) of the Act, 1986 has to be read as mandatory and not directory.

Objective of the Consumer Protection Act, 1986 is to provide speedy justice

The Hon’ble Supreme Court in Nivedita Sharma v. Cellular Operators Assn. of India, (2011) 14 SCC 337 held that:

“…..The 1986 Act was enacted for the better protection of the interests of consumers by making provision for the establishment of consumer councils and other authorities for the settlement of consumer disputes. The object and purpose of enacting the 1986 Act is to provide for simple, inexpensive and speedy remedy to the consumers who have grievance against defective goods and deficient services. This benevolent piece of legislation intended to protect a large body of consumers from exploitation.”

The Hon’ble Supreme Court in CCI Chambers Coop. Hsg. Society Ltd. v. Development Credit Bank Ltd., (2003) 7 SCC 233 held that:

“…..It cannot be denied that fora at the national level, the State level and at the district level have been constituted under the Act with the avowed object of providing summary and speedy remedy in conformity with the principles of natural justice, taking care of such grievances as are amenable to the jurisdiction of the fora established under the Act. These fora have been established and conferred with the jurisdiction in addition to the conventional courts. The principal object sought to be achieved by establishing such fora is to relieve the conventional courts of their burden which is ever-increasing with the mounting arrears and whereat the disposal is delayed because of the complicated and detailed procedure which at times is accompanied by technicalities. Merely because recording of evidence is required, or some questions of fact and law arise which would need to be investigated and determined, cannot be a ground for shutting the doors of any forum under the Act to the person aggrieved.”

Ld. District Forum cannot grant time beyond a period of 45 days as per the provisions of Section 13(2) (a) of the Consumer Protection Act, 1986

In Dr. J.J. Merchant & Ors vs Shrinath Chaturvedi (2002) 7SCC 273, the Hon’ble Supreme Court held that

“….There is legislative mandate to the District Forum or the Commissions to dispose of the complaints as far as possible within prescribed time of three months by adhering strictly to the procedure prescribed under the Act. The opposite party has to submit its version within 30 days from the date of the receipt of the complaint by him and Commission can give at the most further 15 days for some unavoidable reasons to file its version.”

In Dr. Rabindra Nath Jana Vs. Alpana Bera Sasmal and Ors. 2017 (1) CPR 141 (NC), Hon'ble National Commission has observed that:

"Consumer Fora have no jurisdiction to extend period of limitation of 30 days provided under Section 13 (2) of the Act beyond a further period of 15 days- Written statement was sought to be filed in State Commission after expiry of 45 days from date of service of notice of complaint along-with application for condonation of delay- State Commission was fully justified in declining to condone delay in filing of written statement”

In KAD Housing Pvt. Ltd. & Ors. Vs. M. L. Varma & Anr. 2016 (4) CPR 510 (NC), Hon'ble National Commission has observed:

"6.......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 the M/S. L & T Finance Ltd. vs Jagdish Tulsiram Patil, the Hon’ble NCDRC held that:

“District Forum can grant a further period of 15 days to the opposite party for filing his version or reply and not beyond that.”

Therefore, as held in catena of judgments the it is mandatory for the opposite party to file its written statement within a period of 45 days as mentioned under the Section 13(2) (a) of the Act and the Ld. District Forum has no power to extend the time for filing of written version beyond a period of 45 days.

Consumer Protection Act, 1986 aims at the speedy disposal of the consumer complaints and purpose of the act shall be defeated if the mandatory provisions of Section 13(2)(a) are not compiled by the court and the litigants and time is granted beyond a period of 45 days to file the written version of the Opposite Party.

b) What would be the Commencing point of limitation of 30 days under Section 13 of the Consumer Protection Act, 1986?

Section 13(2)(a) and 13(2)(b) clearly provides that the copy of complaint along with notice should be provided to the Opposite Party to enable him to file its written version within a period of 30 days not exceeding 15 days as granted by the Ld. Forum.

Further, Regulation 10(5) of the Consumer Protection Regulations, 2005 clearly mandates that the notice issued by the Ld. District Forum should be accompanied by complete copy of complaint.

Even the provisions under CPC, 1908 provides that a copy of summons should be accompanied by a copy of plaint.

Thus, the conjoint reading of Clauses 13(2)(a) and 13(2)(b) makes it clear that the commencing point of limitation period of 30 days would be from the date of receipt of notice accompanied by the copy of the complaint and not merely receipt of the notice.

This article was originally published in Indian Business Law Journal