Research › Search › Judgment

Himachal Pradesh High Court · body

2022 DIGILAW 783 (HP)

Himachal Pradesh Housing and Urban Development Authority v. Mahinder Singh

2022-12-06

TARLOK SINGH CHAUHAN, VIRENDER SINGH

body2022
JUDGMENT : TARLOK SINGH CHAUHAN, J. 1. Aggrieved by the dismissal of the application seeking condonation of delay in filing the reply, the petitioner has filed the instant petition for grant of following substantive relief: “this petition may kindly be allowed and the delay of days in filing the reply may kindly be condoned and the written statement which has already been filed in the Hon’ble National Commission may kindly be ordered to be taken on record and matter may kindly be ordered to be heard on its merits in the interest of justice.” 2. A case came to be registered against the petitioner before the National Consumer Redressal Commission, New Delhi, (for short “National Commission”) and vide order dated 19.11.2019, the petitioner was directed to file reply. However, since the reply was not filed within the prescribed period of 45 days, the National Commission rejected the application for condonation of delay in filing of the reply, hence the petition. 3. Now, the moot question is whether the National Commission could have refused to condone the delay in filing of the reply, but more importantly is the question, as raised by the respondents, regarding maintainability of the instant petition before this Court. 4. The complaint in this case has been filed under Consumer Protection Act, 1986 (for short “Act of 1986”). Section 21 of the Act of 1986 provides for jurisdiction of National Commission, which reads as under: “21. Jurisdiction of the National Commission Subject to the other provisions of this Act, the National Commission shall have jurisdiction: (a) to entertain: (i) complaints where the value of the goods or services and compensation, if any, claimed exceeds rupees [twenty lakhs]. (ii) appeals against the orders of any State Commission. (b) to call for the records and pass appropriate orders in any consumer dispute which is pending before or has been decided by any State Commission where it appears to the National Commission that such State Commission has exercised a jurisdiction not vested in it by law, or has failed to exercise a jurisdiction so vested, or has acted in the exercise of its jurisdiction illegally or with material irregularity.” 5. It is no longer res integra that the Act of 1986 is self contained and complete mechanism for redressal of the consumers related grievances by filing complaint, appeal and revision, as the case may be. 6. It is no longer res integra that the Act of 1986 is self contained and complete mechanism for redressal of the consumers related grievances by filing complaint, appeal and revision, as the case may be. 6. The Constitution Bench of the Hon’ble Supreme Court in New India Assurance Company Limited vs. Hilli Multipurpose Cold Storage Pvt. Ltd. and Others, (2020) 5 SCC 757 has held that the Consumer Fora under the Consumer Protection Act, 1986 (now replaced by the Consumer Protection Act, 2019) have no power to condone the delay in filing of the written statement if it is filed beyond 45 days of the date of receipt of the notice/summon as provided under Section 13(1) (a) of the said Act. However, the said decision was to operate prospectively. 7. Vide a later decision in Diamond Exports and Another vs. United Indian Insurance Company Ltd. and Others, 2002 (4) SCC 169, a Three-Judge Bench of the Hon’ble Supreme Court clarified the position that only in such cases, where the application for condonation of delay has been allowed on or before 4.3.2020 or an application seeking condonation of delay in filing the written statement has been filed on or before 4.3.2020 are to be considered and the delay can be condoned even beyond 45 days on being satisfied with the reasons given in the application. 8. Adverting to the facts of the case, it would be noticed that the application seeking condonation of delay in filing the reply has been filed only on 18.4.2022 i.e. delay in filing the written statement is 1 year and 19 days, therefore, in terms of the ratio laid down in Diamond Exports’ case supra, the National Commission has committed no error much less an illegality in rejecting the claim of the petitioner for condonation of delay. 9. A Now, adverting to the maintainability of the instant petition against the order of the National Commission, the Hon’ble Supreme Court in Nivedita Sharma vs. Cellular Operators Association of India and Others, (2011) 14 SCC 337 considered the question as to whether the High Court should have entertained a writ petition filed under Article 226 of the Constitution challenging the order of the State Commission ignoring the statutory remedy of appeal available under Section 19 of the Consumer Protection Act, 1986 and observed as under: “18. The 1986 Act was enacted for 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. 19. Prior to the 1986 Act, consumers were required to approach the Civil Court for securing justice for the wrong done to them and it is a known fact that decision of the litigation instituted in the Civil Court could take several years. Under the 1986 Act, the consumers are provided with an alternative, efficacious and speedy remedy before consumer forums at district, state and national level. xxx xxx xxx 24. S.19 provides for remedy of appeal against an order made by the State Commission in exercise of its powers under sub-clause (i) of Clause (a) of S.17. If S.11, S.17 and S.21 of the 1986 Act which relate to the jurisdiction of the District Forum, the State Commission and the National Commission, there does not appear any plausible reason to interpret the same in a manner which would frustrate the object of legislation. 25. What has surprised us is that the High Court has not even referred to S.17 and S.19 of the 1986 Act and the law laid down in various judgments of this Court and yet it has declared that the directions given by the State Commission are without jurisdiction and that too by overlooking the availability of statutory remedy of appeal to the respondents. 26. We also find that the High Court has taken cognizance of the statement made on behalf of the counsel for the petitioners that their clients would challenge Clause (iii) of para 38 of the State Commission's order by filing an appeal under S.19 of the Act and the fact that one of the aggrieved parties, namely, American Express Bank Limited has already filed an appeal questioning paragraph 38(iii) of the order of the State Commission. After having noticed that some of the petitioners were inclined to avail the remedy of appeal against the particular portion of the order passed by the State Commission, the High Court should not have entertained the writ petition filed under Art.226 of the Constitution and the miscellaneous petitions filed under Art.227 of the Constitution and directed them to avail remedy of appeal under S.19 of the 1986 Act...” 10. We may, at this stage, refer to another decision of the Hon’ble Supreme Court in Cicily Kallarackal vs. Vehicle Factory, (2012) 8 SCC 524 , wherein, the Hon’ble Supreme Court, while considering the issue as to whether the High Court has jurisdiction to entertain a writ petition against the judgment and order passed by the National Commission, held that once the legislature has provided for statutory appeal to a higher court, it cannot be proper exercise of jurisdiction to permit the parties to bypass the statutory appeal to such higher courts and entertain petitions in exercise of its powers under Article 226 of the Constitution of India. 11. Section 23 of the Act of 1986 provides for remedy of an appeal against the order made by the National Commission to the Hon’ble Supreme court, which reads as under: “23. Appeal Any person, aggrieved by an order made by the National Commission in exercise of its powers conferred by sub-clause (i) of clause (a) of section 21, may prefer an appeal against such order to the Supreme Court within a period of thirty days from the date of the order: PROVIDED that the Supreme Court may entertain an appeal after the expiry of the said period of thirty days if it is satisfied that there was sufficient cause for not filing it within that period.” 12 In view of aforesaid discussions and for the reasons stated above, we find the instant petition to be not maintainable before this Court and consequently the same is dismissed, so also the pending applications, if any, leaving the parties to bear their own costs.