BREAKING : Conflicting Judgments On Prospective Application Of Ruling On Delay Condonation For Version In Consumer Cases - Supreme Court Refers To Larger Bench

A 2-judge bench of the Supreme Court has expressed the need for a larger bench decision on the issue regarding the prospective operation of the Constitution Bench judgment in the case New India Assurance Company Limited vs. Hilli Multipurpose Cold Storage Private Limited, which had held that Consumer Forum cannot condone the delay of more than 45 days in filing the version of the opposite party.

The Constitution Bench delivered the said judgment on March 4, 2020. In that said judgment, the bench had expressly stated that the pronouncement will apply only prospectively.

Regarding the extent and impact of the prospective operation of the said judgment, two coordinate benches of the Supreme Court took contrary views.

In the case Daddy Builders Private Ltd vs Manisha Bhargava LL 2021 SC 78,  a 2-judge bench comprising Justices DY Chandrachud and MR Shah took the view that the prospective operation of New India Assurance decision would mean that delay of more than 45 days already condoned before the date of that decision (March 4, 2020), will remain unaffected. In other words, the bench in Daddy Builders held that written statements already accepted beyond the period of 45 days before the date of New India Assurance decision will not get affected. In Daddy Builders, the application for condonation of delay was already dismissed before the date of the Constitution Bench judgment. But, this decision held that the delay condonation applications, which were pending as on March 4, 2020, will get covered by the Constitution Bench judgment.

However, a contrary view was taken by another 2-judge bench in the case  Dr. A Suresh Kumar vs. Amit Agarwal LL 2021 SC 290. In this case, a bench comprising Justices Vineet Saran and Dinesh Maheshwari took the view that even the delay condonation applications which are pending as on the date of the Constitution Bench judgment will remain unaffected. According to this bench, such pending delay condonation applications should also be decided on merit. In other words, this bench interpreted "prospectively" to mean that the Constitution Bench judgment will apply only to delay condonation applications filed after March 4, 2020.

The conflict between these two judgments of the coordinate benches was noticed by another two-judge bench comprising Justices Vineet Saran and Dinesh Maheshwari in the case Bhasin Infotech and Infrastructure Private Ltd versus Neema Agarwal and others.

This bench noted that in 2017, in the Reliance General Insurance Company Limited case, the Supreme Court had allowed written statements to be accepted beyond the period of 45 days pending the decision of the Constitution Bench. In this backdrop, the bench expressed the view that even the delay condonation applications which were pending as on March 4, 2020, should get unaffected and should be decided on merits.

"In our view, the prospective operation of the Judgment in the case of New India Assurance Company Limited (supra) ought to cover both sets of the cases in which delay in filing written reply stood condoned after accepting the application for condonation of delay in filing written statement/reply as well as the cases where the decision on condonation of delay in filing written replies were pending on 4th March, 2020. Once an application is filed for condonation of delay, there may be cases where such applications are decided upon on dates earlier than applications already filed but yet to be determined. We do not have any laid down administrative mechanism to decide in what manner applications of this nature would be decided and the consumer fora or the Courts apply their own discretion on the basis of various relevant factors involved in individual cases, to prioritise their hearing.

In our opinion, it would be artificial distinction to distinguish between applications for condonation of delay already decided before 4th March, 2020 and the applications for condonation of delay pending on that date. So far as persons with pending applications for condonation of delay in filing written replies are concerned, their right to have their applications for  condonation of delay in filing written replies to be considered, would stand crystallised on 4th March, 2020. Such right has also been recognised in the case of Reliance General Insurance Company Limited (supra). Such right could be extinguished only by specific legal provisions. In the event the Constitution Bench judgment had altogether negated the right to have delay in filing written statement condoned beyond the period of 45 days, the right of such applicants could stand extinguished. But as the judgment of the Constitution Bench is to operate prospectively, in our understanding of the said judgment, those with pending applications for condonation of delay would retain their right to have their applications considered".

However, in view of the conflicting opinions of the coordinate benches, this bench refrained from expressing any definite view on the matter, and expressed that the matter ought to be settled by a larger bench. Accordingly, the bench directed the Registry to place the matter before the Chief Justice of India for appropriate action.

Case Title : Bhasin Infotech and Infrastructure Private Ltd versus Neema Agarwal and others | CA 73-44 of 2021

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