* Published in 3 SCHOLASTICUS 2005, pp. 170-176 (Bi-annual publication of NLU Jodhpur)
1. introduction
A Bench comprised of two learned judges of the Hon’ble Supreme Court in Topline Shoes Ltd. v. Corporation Bank[1], held as under:
“11. …the provision as contained under Clause (a) of Sub-section (2) of Section 13 is procedural in nature. It is also clear that with a view to achieve the object of the enactment, that there may be speedy disposal of such cases, that it has been provided that reply is to be filed within 30 days and the extension of time may not exceed 15 days. This provision envisages that proceedings may not be prolonged for a very long time without the opposite party having filed his reply. No penal consequences have however been provided in case extension of time exceeds 15 days. Therefore, it could not be said that any substantive right accrued in favour of the appellant or there was any kind of bar of limitation in filing of the reply within extended time though beyond 45 days in all. The reply is not necessarily to be rejected. All facts and circumstances of the case must be taken into account. The Statement of objects and reasons of the Act also provides that principles of natural justice have also to be kept in mind.” (emphasis supplied)
2. brief facts and point in controversy
The brief facts of the case, given in para 3 of the judgement, are as under:
“The appellant filed a complaint before the Gujarat State Consumer Redressal Commission, claiming compensation against the respondent, on account of alleged failure on the part of the respondent in advancing the loan to the appellant despite of furnishing the security for the same. The respondent received notice, issued by the Commission, on 22.2.2000. According to the said notice 4.4.2000 was the date fixed before the State Commission. The respondent appeared on 4.4.2000 and moved an application for adjournment of the case and grant of time to file reply. The case was adjourned for 4.5.2000. On the said date, namely, 4.5.2000, the respondent –Bank filed its reply. The appellant thereafter seems to have filed their rejoinder to the reply filed by the respondent. On the next date, namely, 24.7.2000 the appellant moved an application before the State Commission saying that the reply filed by the respondent was beyond a period of 30 days initially admissible for filing reply and also beyond a further period of 15 days as could be extended for the purpose. Hence, it was prayed that the reply of the respondent may not be accepted on record and the rejoinder filed by the appellant may also be returned to it.”
The short point in controversy was, as to whether or not the State Consumer Disputes Redressal Commission, could grant time to the respondent to file its reply, beyond a total period of 45 days, in view of section 13(2)(a) of the Consumer Protection Act, 1986 (hereinafter referred to as ‘the Act’). In other words, whether the provision prescribing limit for filing reply is mandatory or directory in nature.
3. beg to differ on the following points of law
(A) Principles of Natural Justice
The Hon’ble Apex Court emphasized on the observance of principles of natural justice, as set forth in the statement of objects and reasons of the Act, while deciding whether to grant extension of time for filing reply beyond 45 days or not. The procedure that a consumer forum[2] has to follow while trying a complaint is specified in section 13 of the Act. The section, itself, vide sub-section 3, mandates that no proceedings complying with the procedure laid down in sub-sections (1) and (2) shall be called in question in any court on the ground that the principles of natural justice have not been complied with. It is, therefore, humbly submitted that observance of principles of natural justice cannot form a reason or ground in deciding whether the provision prescribing limit for filing reply beyond 45 days is mandatory or directory in nature.
(B) Extension of Time May Not Exceed 15 Days
The Hon’ble Bench, in para 11, observed that it has been provided that reply is to be filed within 30 days and the extension of time may not exceed 15 days. Therefore, it could not be said that there was any kind of bar of limitation in filing of the reply within extended time though beyond 45 days in all[3]. It again observed in para 12 as follows:
“…as we have found that in case time is extended exceeding 15 days, it may not be kind of an illegality which may deny or deprive the respondent to file his reply within the time granted by the Forum/Commission.”
It is to be noticed that the statutory provision[4] is that ‘the reply is to be filed within a period of thirty days or such extended period not exceeding fifteen days’ and not, as appreciated by the Hon’ble Court, that ‘reply is to be filed within 30 days and the extension of time may not exceed 15 days’. It appears that the mistakenly used phrase ‘and the extension of time may not exceed 15 days’ in above observation influenced the ruling in the present case that ‘and the extension of time may exceed 15 days’. It is submitted that the legislature has used the word ‘may’ to give discretion to the forum to decide whether ‘an extension upto 15 days’ should be granted or not, and not for whether the ‘period of extension may be beyond 15 days’ or not.
In light of the objects and reasons for the enactment of this special statute, the true interpretation of above provision would be that the opposite party is under a statutory duty to file his version of case within 30 days from the date of receipt of notice from the consumer forum. In other words, he has been conferred with a liberty/privilege to file his reply upto 30th day. If he could not file the reply within this period, he can merely make a request to extend the period. Upon which, the consumer forum may or may not grant him an extension of time, which shall not be more than 15 days. Thus, the maximum period in which a reply could be filed and placed on record is 45 days and not beyond that.
An analogy may be drawn with the recently amended Order 8, Rule 1 of the Code of Civil Procedure, 1908[5] which reads as under:
“Rule 1: Written Statement. – The defendant shall, within thirty days from the date of service of summons on him, present a written statement of his defence:
Provided that where the defendant fails to file the written statement within the said period of thirty days, he shall be allowed to file the same on such other day, as may be specified by the court, for reasons to be recorded in writing, but which shall not be later than ninety days from the date of service of summons.” (emphasis supplied)
Under this rule also, there is a legislative mandate that written statement of defense is to be filed within 30 days. However, if there is a failure to file such written statement within stipulated time, the defendant has been conferred with a claim (right stricto sensu) to seek an extension of time to file the same. The courts are under a correlative duty to grant the extension which may range from 31st day upto 90th day[6] and not beyond that. However, under the Act, enacted specially for consumers, the legislature has armed, not the opposite party with a claim to seek extension, but the consumer forum with a power coupled with a liberty to grant or not to grant him an extension ranging from 31st day upto 45th day. And, after the expiry of 45 days in toto, the bar of limitation stands out and a consumer forum has got no power under the Act to grant further time- under no circumstances.
(C) No Penal Consequences
It was stressed in para 8 and para 11 of the judgement that no penal consequences have however been provided in case extension of time exceeds 15 days. Therefore, it could not be said that any substantive right accrued in favour of the appellant or there was any kind of bar of limitation in filing of the reply within extended time though beyond 45 days in all.
It is humbly submitted that the Act does provide the penal consequences which sparkle when analogy is drawn between sub-clause (i) and sub-clause (ii) of section 13(2)(b). Sub-clause (i) provides that where the opposite party, on receipt of a copy of the complaint, denies or disputes the allegations contained in the complaint,[7] the District Forum shall proceed to settle the consumer dispute ‘on the basis of evidence brought to its notice by the complainant and the opposite party’. While sub-clause (ii) says that where the opposite party omits or fails to take any action to represent his case within the time given by the District Forum[8], the District Forum shall proceed to settle the consumer dispute ‘on the basis of evidence brought to its notice by the complainant’. Thus, the penalty lies in the fact that the matter shall be decided solely on the basis of the evidence brought by the complainant, if the opposite party does not file its reply within the prescribed period. It is submitted that whenever a statute requires a particular act to be done in a particular manner and also lays down that failure to comply with the said requirement leads to a specific consequences, it would be difficult to accept the argument that the failure to comply with the said requirement should lead to any other consequences.[9] The rule stated in Bacon’s Abr.[10] is: “If an affirmative statute which is introductive of a new law directs a thing to be done in a certain way, that thing shall not, even if there be no negative words, be done in any other way”.
Furthermore, it is submitted that though affirmative words stand at a weaker footing than negative words for reading the provision as mandatory;[11] but affirmative words may also be so limiting as to imply a negative. In an appeal from West Africa, the Privy Council approved of a passage from the judgement of the President of West African Court of appeal (SIR HENLEY COUSSEY) in which referring to the relevant sections of the Ordinance in question, the president stated: “It is true that there are no negative words in the section referred to but the affirmative words are absolute, explicit, and peremptory; and when you find in an Ordinance only one particular mode of effecting the object, one train of formalities to be observed, the regulative provisions which the section prescribes, are essential and imperative.”[12] The rule stated by VINER is to the same effect: “Every statute limiting anything to be in one form, although it be spoken in the affirmative, yet it includes in itself a negative”.[13] As an example of an Indian statute of this description, the provisions of sections 54, 59, 107 and 123 of the Transfer of Property Act, 1882, prescribing modes of the transfer by sale, mortgage, lease or gift may be mentioned. The formalities prescribed by these provisions for effecting a transfer of the nature mentioned in them are mandatory and the language used although affirmative clearly imports a negative.[14] In light of above, it is submitted that the opposite party is under an absolute statutory duty to file the reply within the prescribed period, which may not have its correlative claim in someone.
(D) Qualifying Words in Different Provisions of The Same Act
The Hon’ble Court, in para 9, observed and found irrelevant the case of Life Insurance Corporation of India v. Escorts Ltd. & Ors.[15] relied on by the appellant. The case lays down that ‘the proper way to interpret a Statute is to give weight to the use, as well as the omission, to use the qualifying words in different provisions of the Act. It is humbly submitted that above ratio squarely applies on the present issue. To appreciate, analogies may be drawn with other provisions of the Act. Section 13(1)(c) of the Act requires a consumer forum to refer a sealed sample of the alleged defective goods to an appropriate laboratory along with a direction to report its findings to it within a period of forty-five days of the receipt of the reference or within such extended period as may be granted by the consumer forum. It is to be noted that while the legislature, like in section 13(2)(a), has provided the prime period, it has not, unlike in section 13(2)(a), prescribed an upper limit on the period of extension. Again, section 15 of the Act gives liberty to any person aggrieved by an order made by the District Forum to prefer an appeal against such order to the State Commission within a period of thirty days from the date of the order. However, the proviso to the section gives discretion to the Commission to entertain an appeal after the expiry of the said period of 30 days under the appropriate circumstances. No limitation on the further period has been specified.[16] Therefore, if the legislature has specifically mentioned in section 13(2)(a) a limitation on the period of extension to file the reply, it has to be honoured.
(E) Statement of Objects and Reasons
The Hon’ble Bench itself observed at para 8 of the judgement that ‘the statement of objects and reasons of the Act indicates that it has been enacted to promote and protect the rights and interests of consumers and to provide them speedy and simple redressal of their grievances’. It is submitted that to achieve this specific purpose, the legislature has purposely curtailed down the maximum period of filing the reply from 90 days as provided in the Code of Civil Procedure, 1908 to 45 days in the Act. Thus, not compliance of this mandate may not cause accrual of any substantive right in favour of the complainant but undoubtedly violates the statutory provision and frustrates the very objects and reasons of the Act. And, it is trite that if holding a provision directory will defeat object of the enactment, it will be construed as mandatory.[17]
(F) Date of appearance v. Date of filing the reply
The Hon’ble Bench, in para 13, observed as under:
“So far the facts of the present case are concerned, we find that at the first instance the Commission itself had fixed the date beyond 30 days and the respondent sought further time which prayer was accepted and 4.5.2000 was fixed. The respondent filed its reply on the date fixed. In such circumstances there was no occasion to contend that the reply of the respondent should be rejected.” (emphasis supplied)
It is humbly submitted that the last date of filing the reply to the complaint and the date of appearing before the consumer forum are two different concepts and cannot be associated. It is to be appreciated that section 13(2)(a) of the Act requires the consumer forum to refer a copy of the complaint to the opposite party directing him to give his version of the case within a period of thirty days and not on the next date of hearing. Nor does the Act direct the consumer forum as to when a date of hearing is to be fixed. The fact that a consumer forum itself fixed the date of hearing beyond 30 days does not invent a liberty in the opposite party to file the reply beyond 30 days. Similarly, a consumer forum cannot shorten opposite party’s liberty to file his reply upto 30th day by fixing the next date of hearing before the expiry of 30th day. It is, therefore, humbly submitted that the extension of last date of filing the reply beyond 45 days cannot be justified with reference to the next date of hearing.
5. Conclusion
The problem of interpretation is not always solved by leveling a requirement either mandatory or directory and it may become much more important to focus on the consequences of non-compliance.[18] In case of a social benefit oriented legislation like the Consumer Protection Act, 1986, if a section is reasonably capable of two constructions that construction should be preferred which furthers the policy of the Act and is more beneficial to those in whose interest the Act may have been passed;[19] and the doubt, if any, should be resolved in their favour.[20] The Court will also not readily read words which are not there and introduction of which will restrict the rights of persons for whose benefit the statute is intended.[21]
However, the words used by the Parliament in the Act under scrutiny for conveying its intention are precise, definite and unambiguous. The only logical interpretation that can be given to section 13 read as a whole is that the consumer forums cannot extend time for filing the reply beyond 45 days from the date of service of the notice upon the opposite party.
In summary, under the Act, the opposite party is under an absolute statutory duty to file the reply within the permitted period, which may not have its correlative claim in someone. It may be said, he has a liberty/privilege to file the reply on any day upto 30th day. Thereafter, he has to seek the permission of the consumer forum which has a power coupled with liberty to allow him to file the reply within next 15 days. Not filing of the reply within the maximum permitted period of 45 days gives rise to a duty in the consumer forum to proceed to settle the dispute on the basis of evidence brought to its notice by the complainant.
The author, in light of the arguments advanced above, respectfully beg to differ with the ruling of the Hon’ble Supreme Court in the present case that the period of extension of time “not exceeding 15 days”, does not prescribe any kind of period of limitation and the reply is not necessarily to be rejected if filed thereafter.
[1] AIR 2002 SC 2487: II (2002) CPJ 7 (SC), (decided on 08-07-2002)[2] The word ‘consumer forum’ represents the District forum as well the State and National Commission, as the procedure provided in Section 13 is followed by the whole three-tier quasi-judicial machinery established under the Act.[3] See full quotation of para 11 at para 1 of this article.[4] Section 13 of the Act. It reads as under:
“13. …………………….
(1)…………………..
(2) The district Forum shall,………………..
(a) refer a copy of such complaint to the opposite party directing him to give his version of the case within a period of thirty days or such extended period not exceeding fifteen days as may be granted by the District Forum;” (emphasis supplied)[5] Order 8, Rule 1 was amended by the Code of Civil Procedure (Amendment) Act, 2002 (22 of 2002) that came into effect from July 1, 2002.[6] It is courts’ discretion to decide the number of extended days.[7] In other words, the opposite party files his version of the case before the consumer forum within the prescribed period.[8] The phrase ‘within the time given by the District Forum’ indicates the ‘extended period not exceeding fifteen days as may be granted by the consumer forum’.[9] Sarifuddin v. Abdul Gani, AIR 1980 SC 303, p. 306: (1980) 1 SCC 403.[10] Bacon’s Abr Tit Statute G quoted from CRAIES: Statute Law, 6th edition, pp. 264, 265.[11] U.K. Gas Plant Manufacturing Co. v. Emperor, AIR 1947 PC 38, pp. 41, 42.[12] Edward Ramia Ltd. v. African woods Ltd., (1960) 1 All ER 627, p. 630 (PC).[13] VINER’S Abr, Vol. 15 Tit Negative, A, pl 2, p. 540.[14] (Mian) Pir Bux v. Mohamed Tahar, AIR 1934 PC 235, p. 237. See further Syndicate Bank v. Prabha D. Naik, AIR 2001 SC 1968, p. 1974. (“Affirmative statute introductive of a new law do imply a negative.”)[15] AIR 1986 SC 1370[16] Similarly, Ss. 19 and 23 of the Act give limitless discretion to the National Commission and Supreme Court respectively, to 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.[17] Bhikraj Jaipuria v. Union of India, AIR 1962 SC 113, p. 119.[18] Attorney General’s Reference (No. 3 of 1999), (2001) 1 All ER 577, p. 583 (e-f) (HL).[19] See Alembic Chemical Works v. Workmen, AIR 1961 SC 647, p. 649.[20] Jivabhai v. Chhagan, AIR 1961 SC 1491, p. 1494 (para 6)[21] State of Tripura v. Roopchand Das, (2003) 1 SCC 421.
***************************************************
© Praveen Kumar Jain
Advocate, Supreme Court of India
No comments:
Post a Comment