Guest article by:- Advocate Sahil Sethi
Builders can delay possession of apartments, not reply to consumer complaints. It has been observed that developers adopt various delay tactics in order to delay the filing of the reply.
The Hon’ble Supreme Court in a landmark judgment recently on 4th December 2015 has affirmed that replies to consumer complaints are mandatorily to be filed within a period of 45 days from receipt of the complaint.
What the Act says
In order to appreciate the recent judgement of the Supreme Court, readers would first have to understand the provisions of Section 13 (2) (a) of the Consumer Protection Act. Section 13(2) (a) of the Act provides that a consumer forum shall, if the complaint relates to any services (such as in the case of complaints filed by homebuyers), 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, i.e. within a period of 45 days from the date of receipt of the complaint.
Past Judgements on the subject
While on a plain reading of the provision, it is evident that the maximum period allowed to an opposite party to file its reply to a consumer complaint is 45 days, the Hon’ble Supreme Court has time and again pondered over the question as to whether the period of 45 days mentioned in Section 13 (2) (a) is directionary or mandatory in nature. In other words, whether a consumer forum can grant time to opposite party to file reply beyond the period of 45 days in view of Section 13 (2) (a), if it so deems fit or whether Section 13 (2) (a) curtails such discretion that a consumer forum may exercise in favor of an Opposite Party.
The first observation by the Hon’ble Supreme Court regards Section 13 (2) (a) came by a three-member bench in the case of Dr. J.J. Merchant and Ors. Vs. Shrinath Chaturvedi in the year 2002 (Copy of the Judgement available here). The Supreme Court in J.J. Merchant’s case observed that Section 13 (2) (a) is a legislative mandate of not giving more than 45 days in submitting the written statement or the version of the Opposite Party which needs to be adhered to by a consumer forum. However, despite this observation by a three-member bench of the Supreme Court, another bench of the Supreme Court in the case of Topline Shoes Ltd. Vs. Corporation Bank (of lesser strength of two judges) (judgement available here) in the same year held that Section 13(2) (a) is the directory in nature which the consumer forums are ordinarily supposed to apply. In other words, the forum or the commission has to consider all facts and circumstances of each case and then to exercise its discretion whether the delay in filing a reply beyond a period of 45 days can be condoned. Therefore, the right to condone the delay in filing reply by Opposite Party beyond a period of 45 days was given to consumer forums or commissions under the Act.
Which judgement to follow?
As many of you might be wondering, shouldn’t the decision delivered by a Bench of larger strength (J.J. Merchant) be binding on a subsequent Bench of lesser strength (Topline Shoes Case). By obvious corollary as well as settled law, the judgment of the Supreme Court in J.J. Merchant’s case should have held more weight than the subsequent decision in Topline Shoes which was by a bench of lesser strength (two judges). However, the problem arose when the judgment of the Supreme Court in Topline Shoes was approved by another three-member bench of the Supreme Court in Kailash Nanhku and Ors. in the year 2005 (judgement available here). The bench in Kailash v. Nankhu’s case in addition to approving the Topline shoes judgement observed that the opinion regarding Section 13 (2) (a) in J.J. Merchant’s case was a mere obiter, i.e. something made or said in passing and hence not be taken to be a pronouncement on law. Resultantly, what was a legislative mandate was interpreted to be merely directionary by the Supreme Court and hence, a window was left open for Opposite Parties in consumer cases to file replies with delays beyond 45 days.
SC clears the air
After 10 years of this anomaly, the Supreme Court finally cleared the air in its recent judgment on 4th December 2015 inNew India Assurance Co. Ltd. Vs. Hilli Multipurpose Cold Storage Pvt. Ltd (A copy of the judgement available here). The recent judgment of the Supreme Court opined that the three-Judge Bench of the Hon’ble Supreme Court in J.J. Merchant’s case should prevail. The Hon’ble Supreme Court in its recent judgement clarified that forums/commission under the Consumer Protection Act “can grant a further period of 15 days to the opposite party for filing his version or reply and not beyond that”. It is therefore now clear that the total time for filing of reply can not exceed beyond 45 days, as per Section 13(2)(a) of the Consumer Protection Act, 1986.
This judgement has come as a wake-up call to Opposite Parties in consumer matters, especially real estate builders/developers who regularly delay filing of replies in an attempt to delay relief to home buyers. It is advisable that all home buyers who have filed complaints against their builder/developer or are proposing to do so keep a track of when replies are filed in their matters and move appropriate applications for striking off the defence of the builder/promoter if the reply is filed beyond a period of 45 days from the date the builder/developers receives copy of the complaint.
We realise that this post maybe a lot of legal jargon for readers and hence invite readers to leave their queries in the comments section here. We will revert asap.