Can Consumer Forum Extend Time Beyond 45 Days For Opposite Party's Version? SC Reserves Verdict

On Wednesday, the Constitution Bench of the Supreme Court comprising of Justices Arun Mishra, Indira Banerjee, Vineet Saran, M.R. Shah and S. Ravindra Bhat reserved its verdict on the issue whether Consumer Forum could grant time to the opposite party to file a reply beyond the stipulated period of 45 days as per Section 13(2)(a) of the Consumer Protection Act, 1986.

As per Section 13(2)(a), when the District Forum receives a complaint under Section 12 of the Consumer Protection Act, 1986, a copy of the complaint is to be served upon the opposite party, and the opposite party has to provide his version of the case within a period of 30 days from the date of receipt of the copy of the complaint. Section 13(2)(a) governs the period of extension of 15 days that the District Forum may grant to the opposite party. The same is the time period for filing version in State Commission and National Commission as well.

The issue stems from the case of New India Assurance Co. Ltd. v. Hilli Multipurpose Cold Storage Pvt. Ltd. [(2015) 16 SCC 472] wherein the question that arose was, whether the matter was governed by law laid down in Dr. J.J. Merchant & Ords v. Shrinath Chaturvedi [(2002) 6 SCC 365] or Kailash v. Nankhu & Ors. [(2005) 4 SCC 480]. While the J.J. Merchant case stated that in no case could a period beyond 45 days could be granted, the Kailash case, pertaining to Election Law and Order VIII Rule 1 of Code of Civil Procedure, stated that such provisions are not mandatory, but directory in nature, and therefore, in the interest of justice, further time for filing reply could be granted on the basis of the circumstances.

The Petitioners in the instant argued that not granting extension would be antithetical to the principle of audi alteram partem ('let the other side be heard as well').

The contentions raised by Mr. Shivam Singh, a counsel for one of the Petitioners, were as follows:

1. Section 13(2)(a) of the Consumer Protection Act, 1986 must be read as a directory provision and not as a mandatory provision. Singh stated that as the provision did not provide any consequences in the event of non-compliance, it was merely directory and not mandatory.

Additionally, the Hilli Multipurpose case had also failed to take into account that the case of Topline Shoes Ltd. v. Corporation Bank [(2002) 6 SCC 33](this case observed that Section 13(2)(a) was merely a procedural directory provision) had not been cited by J.J. Merchant., thereby rendering the purported mandatory nature of the provision as vulnerable.

Singh also submitted that the phraseology of Section 13(2)(a) also did not envision a bright-line test and thus, did not warrant strict interpretation.

2. The denial of power to condone delay to consumer for a would create an incongruent situation and disturb the level playing field between the contesting parties. In order to supplement this argument, Section 24A of the Consumer Protection Act, 1986 was cited in order to portray the power of the Consumer Forum to apply its judicial mind in examining whether "sufficient cause" exists for not preferring the complaint within the prescribed limitation period.

As per Singh, "the specific inclusion of this provision indicates legislative intent to confer judicial discretion upon the Consumer For a for ensuring that the ends of justice are met." In addition to this discretion, not providing an equal opportunity ot the contesting parties to present their version of the case amounts to disturbing the level playing field.

3. "Consumer Fora have trappings of civil courts and therefore have the power to condone delay." Singh referred to Regulation 26(1) of the Consumer Protection Regulations, 2005, as well as Section 13(4) of the Consumer Protection Act, 1986, to inform the Bench that Act confers upon the district forum the power of a civil court for certain purposes. Therefore, the "Consumer Fora must be permitted to condone delay similar to powers exercisable by a civil court under the Code of Civil Procedure, 1908".

The Counsels for the Respondents then began with his submissions by citing the case of J.J. Merchant as well as three referral orders which had previously answered questions regarding the starting point of the period of limitation, and whether limitation could be granted. He emphasized on the fact that the provision was mandatory, and not directory in nature, and therefore the extension could not be allowed. They also highlighted the legislative intent behind the absence of the "sufficient cause" in Section 13, which cemented the mandatory nature.

The case of Rajeev Hitendra Pathak v. Achyut Kashinath [(20110 9 SCC 541] was also cited which states that powers which have not been expressly given by a statute, cannot be exercised. It also goes on enumerate that tribunals are creatures of the statute and derive their power from expressions of the statute.

During the rejoinder arguments, Senior Counsel for the Petitioners iterated the question that if a case could be made out after expiry of the limitation period, would the opposite party be barred from filing a reply? To this, Justice Bhat responded that guidelines were present for the practitioners' adherence. Justice Shah pointed out that providing such an extension would entail the denial of speedy justice, which was a right enumerated under Article 21 of the Constitution of India. Justice Mishra added that the battle of speedy justice due to such inordinate delays was being lost, but he also noted that justice could not be hurried. He additionally raised the question regarding the purported violation of natural justice when time had been already granted by Section 13(1) and (2) of the Act.

On this note, the matter was concluded and the Order for the same was reserved.