Delhi High Court
Deepasri Multispecialities Hospital & ... vs Ms Anupama Nh & Ors. on 16 October, 2024
$~3
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Date of decision: 16th October, 2024
+ CM(M) 2749/2024 & CM APPL. 34251/2024
DEEPASRI MULTISPECIALITIES HOSPITAL & ORS.
.....Petitioners
Through: Mr. Kamal Mehta with Dr. Sushil
Kumar Gupta, Mrs. Sunita Gupta and
Mr. Sakshit Bhardwaj, Advocates.
versus
MS ANUPAMA NH & ORS. .....Respondents
Through: Ms. Prachi Johri with Ms. Abhipsa
Sahu, Ms. Pooja Singh and Mr. Hitesh
Nagar, Advocates.
CORAM:
HON'BLE MR. JUSTICE MANOJ JAIN
J U D G M E N T (oral)
1. Petitioners are defending a complaint filed by respondents
before learned National Consumer Disputes Redressal Commission
(in short 'NCDRC') under Section 21 of Consumer Protection Act,
1986.
2. Their written statement was not taken on record and during the
pendency of the abovesaid complaint, they also raised certain
interrogatories. They assail orders dated 24.03.2023, 14.03.2024 and
04.04.2024, which pertain to such interrogatories. Simultaneously, it
has also been prayed that learned NCDRC may be requested to take
on record the written statement, which they had filed on 13.01.2020.
3. Section 13(2) of the Consumer Protection Act, 1986 stipulates
that opposite party shall submit its version, in response to the
complaint, within a period of thirty days or such extended period not
exceeding fifteen days as may be granted by the District Forum. Such
period, in view of judgment of Constitution Bench of Supreme Court
given in New India Assurance Co. Ltd. v. Hilli Multipurpose Cold
Storage (P) Ltd.: (2020) 5 SCC 757 has been held as inflexible which
cannot be extended. Para 62 of said judgment reads as under:-
"62. To conclude, we hold that our answer to the first question is that
the District Forum has no power to extend the time for filing the
response to the complaint beyond the period of 15 days in addition to
30 days as is envisaged under Section 13 of the Consumer Protection
Act; and the answer to the second question is that the commencing
point of limitation of 30 days under Section 13 of the Consumer
Protection Act 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."
4. This Court has seen order dated 13.12.2022 passed by learned
NCDRC which records that the written statement had been filed with
a delay of 15 days i.e. 15 days beyond the permitted period of 45 days
(30 + 15 days) and, therefore, the right to file written statement was
forfeited. Apparently, the application has been decided summarily,
without going into the cause. Quite possibly, learned NCDRC refused
to take such reply on record in view of the above specific provision
contained in Consumer Protection Act, 1986.
5. During course of the arguments, learned counsel for the
petitioners (opposite party) has strongly relied upon Dr. Vijay Dixit &
Others Vs. Pagadal Krishna Mohan & Others: 2024 SCC OnLine SC
2279 and submits that since with respect to the complaint in question,
they had submitted their written statement much prior to 04.03.2020
and since along with the written statement, they had also submitted an
application seeking condonation of delay which, too, had been
submitted prior to 04.03.2020, the application ought to have been
considered on merits and should not have been dismissed summarily.
6. As per New India Assurance Co. Ltd. v. Hilli Multipurpose
Cold Storage (P) Ltd.: (supra), such period is mandatory and
inflexible which cannot be extended, even if there is a cause. Fact
remains that though, it observed that the rigours of Section 13 of
Consumer Protection Act, 1986 needed to be complied with
mandatorily and, therefore, the condonation of delay was not within
the power of the consumer fora, it was also, categorically, mentioned
therein that the judgement was to operate prospectively. The date of
such decision is 04.03.2020.
7. Keeping in view some divergence of opinion in this regard, Dr.
Vijay Dixit (supra) clarified the position while observing as under:-
"4. In the considered opinion of this Court, the categorical
observation(s) of the Constitution Bench in New India Assurance
2 (Supra); coupled with the finding(s) of a Bench of 3 Judges of this
Court in Diamond Exports (Supra) have authoritatively brought
quietus to the underlying issue. The application(s) seeking
condonation of delay preferred before the consumer fora prior to
04.03.2020 i.e., the date of pronouncement of New India Assurance
2 (Supra), must be decided on merits; and ought not to be summarily
dismissed."
8. It is quite apparent from the above observations of the Hon'ble
Supreme Court that if any application seeking condonation of delay in
filing the written statements/reply has been preferred prior to
04.03.2020, it must be decided on merits. By implication, the cause
cannot be gone into if application is moved after 04.03.2020, and as a
necessary corollary, such application can be dismissed, summarily.
9. Learned counsel for the respondents/complainants has
vehemently opposed the present petition and has submitted that such
benefit cannot be permitted to be given to a party who did not take
any action for all these years. It is also contended that if the opposite
party was actually aggrieved by the above said order dated
13.12.2022, it should have challenged the same, without any delay.
10. Of course, the above said order was not challenged immediately
but fact remains that said application seeking condonation of delay
had been preferred prior to the above cut-off date and, therefore, it
ought not to have been dismissed summarily.
11. During the arguments, learned counsel for the petitioner
submits that he is not pressing the present petition with respect to the
other three orders dated 24.03.2023, 14.03.2024 and 04.04.2024 and
he merely seeks a direction to learned NCDRC to consider the
application seeking condonation of delay in filing the written
statement afresh. It is reiterated by him that such application was filed
on 13.01.2020 i.e. much prior to the cut-off date mentioned in the
above said judgment and, therefore, learned NCDRC should have
considered such application on merits.
12. The matter is now reportedly fixed before learned NCDRC on
28.10.2024.
13. Keeping in mind the above said peculiar position and
exercising supervisory powers under Article 227 of the Constitution
of India, this Court deems it appropriate to make request to learned
NCDRC to consider the above said application, seeking condonation
of delay in filing the written statement, afresh, in view of foregoing
discussion.
14. Needless to emphasize, this Court has not made any
observation about the merits of the cause behind the alleged delay in
filing written statement and it will be up to the learned NCDRC to
consider the same after giving due opportunity of hearing to both the
sides. Depending on the outcome thereof, learned NCDRC may
proceed further with the matter in accordance with law.
15. The petition stands disposed in the aforesaid terms.
(MANOJ JAIN)
JUDGE
OCTOBER 16, 2024/st
