NEW INDIA ASSURANCE CO. LTD.versusHILLI MULTIPURPOSE COLD STORAGE PVT. LTD.

                    [2015] 14 S.C.R. 179


            NEW INDIAASSURANCE CO. LTD.                         A
                                   '
                              v.
   HILU MULTIPURPOSE COLD STORAGE PVT. LTD.
          (Civil Appeal Nos.10941-10942 of 2013)
                                                                B
                   DECEMBER 04, 2015
         [ANIL R. DAVE, VIKRAMAJIT SEN AND
            PINAKI CHANDRA GHOSE, JJ.]
        Consumer Protection Act, 1986 - s. 13(2)(a) -
Procedure on admission of complaint - Limitation period for C
filing written statement or giving version of the opponent as
per the provisions of s. 13(2)(a) - Held: The opposite party is
given 30 days time for giving his version and the .said period
for filing or giving the version can be extended by the District D
Forum, but extension should not exceed 15 days - Three
Judge Bench of this Court.in Dr. J.J. Merchant case rightly
held that the District Forum can grant a further period of 15
days to the opposite party for filing his version or reply and
not beyond that- View expressed in Dr. J.J. Merchant case · E
(decided in 2002) holds thefield and prevails over latter view
taken in Kailash case (decided in 2005) that the time frame
for filing the reply was not mandatory, but merely directory -
Not only this three-Judge Bench, but even a Bench of
coordinate strength of this Court, which decided the case of F
Kail ash, was bound by the view taken by a three-Judge Bench
in the case of Dr. J .J. Merchant - Thus, the law laid down in
Dr. J.J. Merchant case should prevail.
    · Dr. J.J. Merchant & Ors. v. Shrinath Chaturvedi
                                                               G
     c2002) 6 sec 635: 2002 (1) Suppl. scR 469;
     Kai/ash v. Nanhku & Ors. (2005) 4 SCC 480 :
     2005 (3) SCR 289; Topiine Shoes Ltd. v.
     Corporation Bank (2002) 6 SCC 33 : 2002 (3)
     SCR 1167; Central Board of Oawoodi Bohra
                                                                H
                             179
180        SUPREME COURT REPORTS              [2015] 14S.C.R.


A          Community & Anr. v. State of Maharashtra (2005)
           2 sec 673 : 2004 (6) suppl. scR 1054 -
           referred to.

                          Case Law Reference
B 2002 (1) Suppl. SCA 469            referred to    Para 1

      2005 (3) SCA 289               referred to    Para 1

      2002 (3) SCA 1167              referred to    Para 12
c 2004 (6) Suppl. SCA 1054           referred to    Para 19

          CIVIL APPELLATE JURISDICTION: Civil Appeal Nos.
      10941-10942 of 2013.
D          From the Judgment and Order dated 30.09.2013 of the
      National Consumer Disputes Redressal Commission at New
      Delhi in Review Application No. 309 of 2013in Consumer
      Complaint No. 52 of 2013
                                  WITH
 E
           C.A. Nos. 10943-1 0944/2013 and 1774/2014
           SLP (C) Nos. 2833/2014 and 11257-11258/2014.
        Shyam Divan, Sr. Adv., Vishnu Mehra, Ms. Sakshi Mittal
 F (For Ms. Manjeet Chawla), K. R. Sasiprabhu, Vishnu Sharma,
   Somiran Sharma, Biju P. Raman, Sanjoy Kumar Ghosh, Ms.
   Rupali S. Ghosh (For Snehasish Mukherjee) for Appellant.
        Uday Gupta, Hiren Dasan, Narayan Chandra Das,
G Chand Qureshi (For Mrs. Sarla Chandra), Umesh Kumar
  Khaitan, Brajesh Kumar Singh, Kedar Nath Tripathy, Su nil Kr.
  Mund, Sanjeev Joshi, A. K. Mehta, Kuldeep Singh, Santosh
  Paul, Nitin S. Tambwekar, Seshatalpa Sai Bandaru, Kaushik
  Poddar, T. V. George, Sayalipso Ray for the Respondent.
 H
NEW INDIAASSURANCE v. HILU MULTIPURPOSE COLD 181
                 STORAGE

     The Judgment of the Court was delivered by                   A
       ANIL R. DAVE, J. 1. While considering Civil Appeal
No.D 35086 of 2013, this Court expressed its doubt in relation
to the period of limitation for filing the written statement or giving
version of the opponent as per the provisions of Section B
13(2)(a) of the Consumer Protection Act, 1986 (hereinafter
referred to as 'the Act'). The question was, whether the said
issue was governed by the law laid down by this Court in Dr.
J.J. Merchant& Ors. v. Shrinath Chaturvedi. [(2002) 6 SCC
635] or Kai/ash v. Nanhku & Ors. [(2005) 4 SCC 480]. The C .
following order was passed by this Court in the aforestated
Civil Appeal on 29'h November, 2013:
       "1. Heard Mr. Vahanvati, learned Attorney General, in
       support of these appeals. Mr. Guru Krishna Kumar, D
       learned senior counsel, appears for the respondent(s).
       2. Learned Attorney General .points out that the
       judgment in Dr. J.J. Merchand. & Ors. vs. Shrinath
       Chaturvedi, reported in [2002(6) SCC 635], has been
       considered and a different view has been taken in E
       Kailash vs. Nanhku & Ors .. reported in [2005(4) SCC
       480], on the issue of limitation. The matters, therefore,
       require consideration.
       3. Delay condoned.                                         F
       4. The appeals are admitted.
      5. Since this point of law requires to be resolved, we
      request the Hon'ble the Chief Justice to place these
      appeals before a larger Bench ..................... "  G
     2. In the aforestated circumstances, these matters have
been placed before this three-Judge Bench so as to ascertain
whether the law laid down in the case of Dr. J.J. Merchant
(supra) still holds the field or whether the law has been H
182       SUPREME COURT REPORTS                  [2015] 14 S.C.R.


A changed in view of the later judgment delivered by this Court
  in the case of Kai/ash (supra).
         3. The whole issue centers round the period within which
  the opponent has to give his version to the District Forum in
8 pursuance of a complaint, which is admitted under Section 12
  of the Act. Upon receipt of a complaint by the District Forum,
  if the complaint is admitted under Section 12 of the Act, a copy
  of the complaint is to be served upon the opposite party and
  as per provisions of Section 13 of the Act, the opposite party
c has to give his version of the case within a period of 30 days
  from the date of receipt of the copy of the complaint. There is
  a further provision in Section 13(2)(a) that the District Forum
  may extend the period, not exceeding 15 days, to the opposite
  party for giving his version, The relevant Section of the Act
D reads as under:
          "13.    Procedure on admission of complaint- (1)


          (2) The District Forum shall, if the complaint admitted
E         by it under section 12 relates to goods in respect of
          which the procedure specified in sub-section (1) cannot
          be followed, or if the complaint relates to any services, -
          (a) refer a copy of such complaint to the opposite party
 F        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;
                                                                ,,
G         (b)
        Thus, upon plain reading of the aforestated Section, one
  can find that the opposite party is given 30 days' time for giving
  his version and the said period for filing or giving the version
H can be extended by the District Forum, but the extension should
·NEW INDIAASSURANCE v. HILU MULTIPURPOSE COLD 183
            STORAGE [ANIL R. DAVE, J.]
                 '
 not exceed 15 days. Thus, an upper cap of 45 days has been A
 imposed by the Act for filing version of the opposite party.·
      4. The question arose in the case of Dr. J.J. Merchant
 (supra) whether the Forum can grant time beyond 45 days to
 the opposite party for filing its version. After considering the B
 aforestated section in the light of the object with which the Act
 has been enacted, a three-Judge Bench of this Court came to
 the conclusion that in no case period beyond 45 days can be
 granted to the opposite party for filing its version of the case.
         5. Without discussing the aforestated three-Judge
                                                                  c
  Bench Judgment in detail, we now turn to another judgment
  which has been referred to by the referring Bench. The other
  judgment which has been referred to is Kai/ash(supra), which
  pertains to Election Law. The issue involved in the said case D
  was whether time limit of 90 days, as prescribed by the proviso
  to Rule 1 of Order 8 of the Civil Procedure Code, is mandatory
  or directory in nature, The said issue had arisen in an election
  matter where the written statement was not filed by the
· concerned candidate within the period prescribed under the E
  relevant Election Law and the issue was whether in the Election
  trial, delay caused in filing the written statement could have ·
  been condoned.
       6. · After considering the provisions of Order VIII Rule 1
 of the Code of Civil Procedure, ·1908 and several other F
 judgments pertaining to grant of time or additional time for filing
 written statement or reply, in the interest of justice, this Court
 came to the conclusion that the provisions of Order VIII Rule 1
 C.P.C. are not mandatory but directory in nature andtherefore, G
 in the interest of justice, further time for filing reply can be
 granted, if the circumstances are such that require grant of
 further time for filing the reply.
       7. The judgment delivered in the case of Kailash(supra)
                                                                  H
184         SUPREME COURT REPORTS                 [2015] 14S.C.R.


A is later in point of time and while considering the said judgment,
  judgment delivered in the case of Dr. J.J. Merchant(supra)
  had also been considerE)d by this Court.
         8. In the aforestated circumstances, we have now to
B consider whether in a case under the provisions of the Act,
  where a complaint has been filed and the opposite party has
  not filed its version to the case within 30 days or within extended
  period of 45 days, which at the most could have been granted
  by the District Forum, the version given by the opposite party
C can be accepted.
         9. The learned counsel appearing for the complainant
  submitted that the view expressed by the three-Judge Bench
  of this Court in Dr. J. J. Merchant (supra) is absolutely just
D and proper and is on the subject, with which facts of the present
  case are concerned. The said case also deals with the
  provisions of Section 13(2)(a) of the Act, whereas case of
  Kai/ash (supra) pertains to an Election trial and under a
  different Act.
E       10. According to the learned counsel appearing for the
  complainant, in the instant case, in fact, there is no conflict
  between the two judgments referred to hereinabove as the
  judgment delivered in Dr. J. J. Merchant(supra) was prior in
  time and was on the subject of the Act. Looking at the contents
F of the said judgment, it is clear that the said judgment also
  pertains to the provisions with regard to grant of time for filing
  version of the opposite party before the District Forum. Once
  a judgment has been delivered by a three-Judge Bench on
G the same subject and on the same section, according to the
  learned counsel, there was no need to re-consider the same.
             11. On the other hand, the learned counsel appearing
      for the other side contended that as per the view expressed in
      the case of Kai/ash (supra), the District Forum can grant time
 H
  NEW INDIAASSURANCE v. HILU MULTIPURPOSE COLD 185 ·
             STORAGE [ANIL R. DAVE, J.]

  beyond 15 days to the other side for giving its version or reply. A
- The learned counsel submitted that the marginal note to Section
  13 of the Act reads "procedure on completion of complaint'.
  Thus, the provisions incorporated in Section 13 of the Act are
  merely procedural and are directory in nature, as observed by
  this Court in the case of Kai/ash (supra).                        B
         12. The learned counsel also referred to a judgment
  delivered in the case of Topline Shoes Ltd. v. Corporation
  8ank[(2002) 6 SCC 33]. This Court was faced with the same
  issue in the aforestated case. After discussing the provisions     c
  of Section 13(2) of the Act, this Court came to the conclusion
  that procedural rules should not be considered as mandatory
  in nature. In the said case, ultimately, this Court came to the
  conclusion that provision contained in Section 13(2)(a) of the
  Act is procedural in nature. According to the said judgment,       D
  the object behind enactment of the Act is speedy disposal of
  cases pending before the District Forum and therefore, it has
  been provided that reply should be filed within 30 days and
  the extension of time may not exceed 15 days. It has been
  .further observed that" no penal consequences have been            E
  provided in the case of extension of time beyond 15 days and
  therefore, the said provision with regard to extension of time
  beyond a particular limit is directory in nature and that would
  not mean that extension of time cannot exceed 15 days. Relying
  upon the said judgment and the judgment delivered in the case      F
  of Kai/ash (supra), the learned counsel submitted that as Dr.
  J. J. Merchant (supra) has not been followed in a later case
  though it was considered in the case of Kailash(supra), the
  correct legal position would be to treat the said provision with   G
  regard to maximum period for filing the reply is directory and
  not mandatory.
        13. The learned counsel further submitted that some of
  the provisions of Civil Procedure Code do apply to the District
                                                                     H
186         SUPREME COURT REPORTS                  [2015) 14S.C.R.


A Forum and in the light of the said fact, in his submission, the
  provisions of Section 13(2)(a) of the Act are merely directory          -
  and not mandatory in nature;
         14. The learned counsel also submitted that if further time
8 is not  granted, irreparable damage would be caused to the
  other side and in a case where the other side/respondent is
  staying at a distant place, it might not be possible for the
  respondent/other side to file its version even within 45 days
  and therefore, in the interest of justice, the view expressed in
c the case of Kai/ash (supra) should be accepted.
            15. Upon hearing the concerned counsel and upon
      perusal of both the judgments referred to hereinabove, which
      pertain to extension of time for the purpose of filing written
      statement, we are of the opinion that the view expressed by
0
      the three-Judge Bench of this Court in Dr. J.J. Merchant
      (supra) should prevail.
            16. In the case of Dr. J.J. Merchant (supra), which is
      on the same subject, this Court observed as under:
 E
            "13. The National Commission or the State Commission
            is empowered to follow the said procedure. From the
            aforesaid section it .is apparent that on receipt of the
            complaint, the opposite party is required to be given
 F          notice directing him to give his version of the case within
            a period of 30 days or such extendeq pe·riod not
            exceeding 15 days as may be granted by the District
            Forum or the Commission. For having speedy trail, this
            legislative mandate of not giving more than 45 days .in
 G          submitting the written statement or the version of the
            case is required to be adhered to. If this is not adhered
            to, the legislative mandate of disposing of the cases
            within three or five months would be defeated.
 H           14. For this purpose, even Parliament has amended
NEW INDIAASSURANCE v. HILU MULTIPURPOSE COLD 187.
           STORAGE [ANIL R. DAVE, J.]

      Order 8 Rule 1 of the Code of Civil Procedure, which A
      reads thus:
        "1. Written statement. - The defendant shall, within
        thirty days from the date of service of summons <>n
        him, present a written statement of his defence:     B
           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 C
           reasons to be recorded in writing, but which shall
           not be later than ninety days from the date of service
           of summons."
      15. Under this Rule also, there is a legislative mandate
      that written statement of defence is to be filed within 30 D
      days. However, if there is a failure to file such written
      statement within the stipulated time, the court can at the
      most extend further period of 60 days and no more.
      Under the Act, the legislative intent is not to give 90days
      of time but only maximum 45 days for filing the version E
      of the .opposite party. Therefore, the aforesaid mandate
      is required to be strictly adhered to."
       17. We are, therefore, of the view that the judgment
delivered in the case of Dr. J.J. Merchant (supra) holds the F
field and therefore, we reiterate the view that the District Forum.·
can grant a further period of 15 days to the opposite party for
filing his version or reply and not beyond that..
      18. There is one more reason to follow the law laid down G
in the case of Dr. J. J. Merchant(supra). Dr. J. J. Merchant ·
(supra) was decided in 2002, whereas Kai/ash(supra) was
decided in 2005. As per law laid down by this Court, while
deciding the case of Kailash (supra), this Court ought to have
respected the view expressed in Dr. J.J. Merchant(supra) .H
188       SUPREME COURT REPORTS                 [2015] 14S.C.R.


A as the judgment delivered in the case of Dr. J.J. Merchant
  (supra) was earlier in point of time. The aforestated legal
  position cannot be ignored by us and therefore, we are of the
  opinion that the view expressed in Dr. J.J. Merchant(supra)
  should be followed.
B
        19. Our aforestated view has also been buttressed by
  the view expressed by this Court in the case of Central Board
  of Dawoodi Bohra Community & Anr. v. State of
  Maharashtra & Anr. [(2005) 2 SCC 673], wherein a question
c had arisen whether the law laid down by a Bench of a larger
  strength is binding on a subsequent Bench of lesser or equal
  strength. After considering a number of judgments, a five-Judge
  Bench of this Court, finally opined as under:
          "12. Having carefully considered the submissions made
D
          by the learned senior counsel for the parties and having
          examined the law laid down by the Constitution Benches
          in the abovesaid decisions, we would like to sum up
          the legal position in the following terms :-
E           (1) The law laid down by this Court in a decision
            delivered by a Bench of larger strength is binding on
            any subsequent Bench of lesser or co-equal strength.
            (2) A Bench of lesser quorum cannot disagree or
 F          dissent from the view of the law taken by a Bench of
            larger quorum. In case of doubt all that the Bench of
            lesser quorum can do is to invite the attention of the
            Chief Justice and request for the matter being placed
            for hearing before a Bench of larger quorum than the
G           Bench whose decision has come up for consideration.
            It will be open only for a Bench of coequal strength to
            express an opinion doubting the correctness of the
            view taken by the earlier Bench of coequal strength,
            whereupon the matter may be placed for hearing
 H
NEW INDIAASSURANCE v. HILU MULTIPURPOSE COLD 189
           STORAGE [ANIL R. DAVE, J.]

             before a Bench consisting of a quorum larger than the A
             one which pronounced the decision laying down ihe
             law the correctness of which is doubted.
         (3) The above rules are subject to two exceptions : (i)
         The abovesaid rules do not bind the discretion of the B
         Chief Justice in whom vests the power of framing the
         roster and who can direct any particular matter to be .
         placed for hearing before any particular Bench of any
         strength; arid
             (ii) In spite of the rules laid down hereinabove, if the C
             matter has already come up for hearing before a Bench
             of larger quorum and that Bench itSelf feels that the
             view of the law taken by a Bench of lesser quorum,
             which view is in doubt, needs correction or D
             reconsideration then by way of exception (and not as
             a rule) and for reasons given by it, it may proceed to
             hear the case and examine the correctness of the
             previous decision in question dispensing with the need
             of a specific reference or the order of Chief Justice E
             constituting the Bench and such listing. Such was the
             situation in Raghubir Singh and Hansoli Devi."
      20. In view of the alorestated clear legal position
depicted by a five-Judge Bench, the subject is no more res F
integra. Not only this three-Judge Bench, but even a Bench of
c9ordinate strength of this Court, which had decided the case
of Kai/ash (supra), was bound by the view taken by a three-
Judge Bench in the case of Dr. J.J. Merchant(supra).
      21. In view of the aforestated legal position, we are of G
the view that the law laid down by a three-Judge Bench of this.
Court in the case of Dr. J.J. Merchant(supra) should p~evail.
The Reference is answered accordingly.
Nidhi Jain                                       Reference answered.   H