Strict Interpretation Of Statutory Provisions Qua Quasi-Judicial Forums / Tribunals: The Power Of Tribunals To Condone Delay Beyond Statutory Limit

A mandatory provision relates to the matter of substance, disobedience of which would lead to the nullification of the legal act, whereas provisions whose compliance is merely a matter of convenience rather than of substance is a directory. However, Hon'ble Supreme court of India has time and again stressed that whether a Statute is mandatory or directory cannot be generalised and the entire provisions of an enactment needs to be analysed in order to reach the real intent of the legislature.

The Apex Court further clarified the position in its recently delivered judgment in the matter of New India Assurance Co. Ltd. v/s Hilli Multipurpose Cold Storage Pvt. Ltd., on March 4, 2020, determining one of the provisions of the Consumer Protection Act (hereinafter "Act") as Mandatory or Directory. A reference was made to the Constitutional Bench of 5 Judges comprising of Justices Arun Mishra, Indira Banerjee, Vineet Saran, M.R. Shah and S. Ravindra Bhat. It was raised through a Special Leave Petition, on two legal issues, which arose out of various contradictory judgments of the three-Judge Bench and DB of the court:

(i) Whether the District forum has power to extend the time for filing the response by the Opposite Party beyond the period of 45 days as envisaged u/s 13(2)(a) of the act; and

(ii) the commencing point of limitation of 30 days u/s 13 of the CPA, 1986.

The first question was referred by a two-Judge Bench of the Apex Court vide an Order dated 11.02.2016 passed in Civil Appeal No(s).10831084 of 2016, M/s Bhasin Infotech and Infrastructure Pvt. Ltd. versus M/s Grand Venezia Buyers Association (Reg), as under:

"There is an apparent conflict between the decisions of this Court in Topline Shoes Limited vs. Corporation Bank [(2002) 6 SCC 33], Kailash Vs. Nankhu [(2005) 4 SCC 480], Salem Advocate Bar Association Vs. Union of India [(2005) 6 SCC 344] on the one hand and J.J. Merchant & Ors. Vs. Shrinath Chaturvedi [(2002) 6 SCC 635 and NIA Vs. Hilli Multipurpose Cold Storage [2014 AIOL 4615] on the other in so far as the power of the Courts to extend time for filing of written statement/reply to a complaint is concerned.

The earlier mentioned line of decisions take the view that the relevant provisions including those of Order 8 Rule 1 of the Civil Procedure Code, 1908 are directory in nature and the Courts concerned have the power to extend time for filing the written statement. The second line of decisions which are also of coordinate Benches however takes a contrary view and hold that when it comes to power of the Consumer Fora to extend the time for filing a reply there is no such power. Since the question that falls for determination here often arises before the Consumer Fora and Commissions all over the country, it will be more appropriate if the conflict is resolved by an authoritative judgment.

Further since the conflict is between Benches comprising three Judges we deem it fit to refer these appeals to a five Judge Bench to resolve the conflict once and for all. While we do so we are mindful of the fact that in the ordinary course a two-Judge Bench ought to make a reference to a three-Judge Bench in the first place but in the facts and circumstances of the case and keeping in view the fact that the conflict is between coordinate Benches comprising three Judges a reference to three Judges may not suffice."

The court has come to the above conclusion considering the conflicting judgments in the matter of Dr. J.J. Merchant & Ors. vs. Srinath Chaturvedi [(2002) 6 SCC 635] and Kailash vs. Nanhku [(2005) 4 SCC 480].

While in the case of Kailash vs. Nanhku, the Court was dealing with an election trial under the Representation of People Act, 1951, and considering the provision under Order VIII Rule 1 of the Civil Procedure Code, it held the same to be directory, and not mandatory. While holding so the court was of the view that "the consequences flowing from non-extension of time are not specifically provided" in the Code. However, the court held that the decision in the above-stated case had no bearing on the question under consideration, as the reference before them was under the CPA.

Whereas, in the matter of Dr. J.J. Merchant, the court observed as under:

"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 to, the legislative mandate of disposing of the cases within three or five months would be defeated"

Further, the Apex Court, while dealing with one of the contentions that the language of Section 13(2) of the Act is pari materia to Order VIII Rule 1 of the Code of Civil Procedure, 1908 and if time can be extended for filing the written statement in a suit under the provisions of the code, the same would also apply to the filing of response to complaints under the Act, has rightly observed that;

"while considering the relevant provisions of the Code, it is noteworthy that Order VIII Rule 1 R/w Order VIII Rule 10 prescribes the maximum period of 120 days, is not meant to be mandatory, but only directory. Order VIII Rule 10 mandates that where the written statement is not filed within time, "the court shall pronounce the judgment against him, or make such order in relation to the suits as it thinks fit. However, sub-section (2) (b)(ii) of section 13 of the CPA clearly provides for the consequence of the complaint to be proceeded ex-parte, if he fails to represent his case within the given time."

Hence, after considering the said provisions of the Code, Act and the judgment in Dr. J.J. Merchant the Apex court held that, "the law laid down in Dr. J. J. Merchant should prevail" more particularly given in the following paragraphs of the judgment of the Constitutional Bench :

"25. We are, therefore, of the view that the judgment delivered in J.J. Merchant holds the field and 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.

26. There is one more reason to follow the law laid down in J.J. Merchant, which is that J.J. Merchant was decided in 2002, whereas Kailash was decided in 2005. As per law laid down by this Court, while dealing Kailash, this Court ought to have respected the view expressed in J.J. Merchant as the judgment delivered in J.J. Merchant was earlier in point of time. The aforesaid legal position cannot be ignored by us and therefore, we are of the opinion that the view expressed in J.J. Merchant should be followed."

In the instant case, answering the first question, the court held that the District Forum has no power to extend the time for filing the response to the complaint beyond the extended period of 15 days in addition to the 30 days as envisaged under section 13(2)(a) of the CPA. Further, the bench also opined that the provision of section 13(2)(a) of CPA, granting a maximum period of 15 days in addition to the 30 days for filing the response has to be read as mandatory and not directory It is well settled that, "When there is a conflict between law and equity, the former shall prevail". The Court, thus stated that hardship cannot be a ground for challenging the mandatory nature of the statute and the court has no power to extend the period of limitation on equitable grounds, even if the statutory provision may cause hardship or inconvenience to a particular party.

The second issue in question was referred to the Constitution Bench, by the Division Bench of the Apex Court vide an Order dated 18.01.2017 passed in Civil Appeal No(s).10941-10942 of 2013, NIA Vs. Hilli Multipurpose Cold Storage Pvt. Ltd., (2015) 16 SCC 22 as under:

"what is the commencing point of the limitation of 30 days stipulated in Section 13 of the Act is required to be decided authoritatively. The declaration made in JJ Merchant's case that the said period is to be reckoned from the date of the receipt of the notice by the opposite party or complaint under the Act requires in our humble opinion, a more critical analysis."

The Point for determination under the second issue was as to whether the limitation period under the CPA, 1986, for filing the response to the complaint by the opposite party would commence from the date of receipt of the notice of the complaint by the opposite party or the receipt of notice accompanied by a copy of complaint. Referring the case of NIA vs. Hilli Multipurpose Cold Storage (Supra) the court observed as under:

"The whole issue centres 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 the 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." (Para 12).

The court also stated that Sub-Sections (2)(a) and (2)(b) of Section13 of the Consumer Protection Act specify that it is a copy of the complaint which is to given to the opposite party directing him to give his version of the case within a period of 30 days or such extended period, not exceeding 15 days. Hence the aforesaid provision itself makes it clear that it is the copy of the admitted complaint which is to be served, thereafter only, the period to file the response would commence. Further, Regulation 10 of the Consumer Protection Regulations, 2005 also specifies the procedure of issuing notice, which should be accompanied by copy of the complaint. Even in the Code of Civil Procedure, Order VIII Rule 1 prescribes that the written statement shall be filed by the defendant within 30 days from the receipt of the "summons". "Summons" has been defined in Order V Rule 1 of the Code and Rule 2 provides that "every summon shall be accompanied by a copy of the plaint."

The court, however, clarifies that the objection of not having received a copy of the complaint should be raised on the first date itself and not thereafter, otherwise if permitted to be raised at any point later would defeat the very purpose of the act, which is to provide simple and speedy redressal of consumer disputes.

Hence, in answering the second question, court held that the commencing point of limitation of 30 days U/s 13(2) of the CPA 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.

Concluding the above, the Constitutional Bench of the Apex Court upheld its previous rulings in Kailash V. Nankhu and emphasizing on the observations in Dr. J.J. Merchant held that the District Forum has no power to further extend the time to file the response to the Complaint as envisaged U/s 13 of the Act the limitation of 30 days shall commence only from the date of receipt of notice accompanied with complaint and not mere receipt of notice.

Ms. Puran Kumari is a Partner and Ms. Kanika Mawri is a Research Associate at Atharva Legal LLP. Authors views are personal.