Supreme Court affirms Consumer Complaints to be disposed of expeditiously

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.

Conclusion

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.

18 thoughts on “Supreme Court affirms Consumer Complaints to be disposed of expeditiously

  • December 12, 2015 at 9:31 am
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    In our cases which was heard in ncdrc last week by justice Ajit Bharioke, the builder has not filed reply even after 60 days but have asked that our petition is not maintainable as filed by the buyers association. Mr Bharioke has said that the opposite parties have not filed any replies on the merit of the application hence the argument in dismissal of application will take place on next date. In a sense the builder has lost right to reply. But builders lawyer has said he will go to supreme Court and will get an order to file the reply. What we should do now so that he can’t get favourable order from supreme Court?

  • December 12, 2015 at 9:47 am
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    Cite the recent SC judgement to Judge. He will surely appreciate it.

    Even if the builder appeals to the SC , it is most likely to be dismissed on the first day itself in light on this clear pronouncement by SC.

  • February 24, 2016 at 12:29 pm
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    I have a case efore the NCDRC where the builder has been asked to file their evidence of force majeure claims but they have been delaying the filing of this and each time the matter is being adjourned 9-12 months causing a lot of problems for us. Does this ruling apply to builder responses only for initial reply to the complaint or all subsequent stages? Any advice on what to do is greatly appreciated

    Thank you

  • February 24, 2016 at 6:11 pm
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    Madhu,

    Yes, this does apply to your case. Here is a case where Judge made reference to this case for a matter.

    At about 2.35 p.m., learned counsel for the opposite parties also appears. He points out that he had deposited Rs.50,000/- on 17.2.2016 but the order dated 30.11.2015 directs that the amount be deposited within two months. Moreover, in view of the Supreme Court authority in New India Assurance Co. Ltd. Vs. Hilli Multipurpose Cold Storage Pvt. Ltd., civil appeal Nos. 10941-10942 of 2013, decided on 4.12.2015, the delay in filing the written statement cannot be condoned. The opposite parties can take back the money. The demand draft is returned to learned counsel for the opposite parties.

    http://cms.nic.in/ncdrcusersWeb/GetJudgement.do?method=GetJudgement&caseidin=0%2F0%2FRA%2F359%2F2013&dtofhearing=2016-02-17

    Only thing that should be noted here is that it has been tried for not filing the written statement. No harm in exercising for your case too.

  • March 30, 2016 at 3:22 pm
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    Sir,

    I have a case (Appearing personally before court) before Khurda district consumer redressal forum (Bhubaneswar, Odisha) since May 2014 (Case No-156/2014).

    The opposite party filed his reply in August 2015 without adding any annexures/citations/references to counter my argument. Again I countered his reply immediately within stipulated time period. Since then he is taking time to reading my counter reply.

    The opp. party lawyer appeared before the forum maximum of six times (Out of 20 times) since my case was admitted. He is begging time on frivolous grounds (like his client met with an accident and bed ridden since one year and lives in Kolkata etc…) and the President is granting time to him even after my objection.

    The president himself is saying, ” Cases are pending since 2007, why do you expect 2014 case to be finished so soon?” The president is also laughing at me whenever I,m asking for compensation for each adjournment according to CPA amendment act 2005. Neither is he hearing my case nor dismissing it. He is not making “ex-party” to the opp.party, despite his hide and seek game. I’m really frustrated as I have to take leave from my Job to appear before the court.

    Last chance is always one chance. Unfortunately, he has given at least Five last chances to opposite party.

    Can I transfer this case to State consumer redressal commission, Odisha? If yes, what is the procedure to do it ? If No, please suggest me a way to get justice speedily

  • March 30, 2016 at 6:20 pm
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    Dear Prasanta,

    We suggest you write a letter addressing President, NCDRC and Ministry of Consumer Affairs with your grievances. Please do consult your lawyer before doing so.

    Unfortunately, you can’t approach higher court unless an order is passed by district forum.

    All the best!

  • May 11, 2016 at 5:28 pm
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    I want to engage you in my case, can i have your contact details?

  • May 18, 2016 at 11:42 am
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    We are also facing the similar problem with BPTP park Elite Premium, faridabad. Booked the flat in 2009, no possession till date. Almost 90% paid. Tried to reach many influential people, But all in vain, pls suggest smth

  • May 18, 2016 at 12:22 pm
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    Have you already approached the NCDRC? if not, you should do as a group immediately.

  • October 4, 2016 at 6:48 pm
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    Sir,
    The Honorable Apex court has stayed the order of National consumer forum regarding applicability of the consumer protection act to Advocates. what is the way out to sue Advocate under consumer Act.
    kahaley

  • December 25, 2016 at 12:45 am
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    We have 100s of ongoing case in Karnataka state forum against the same builder and the builder is not completing his argument since a year. The judge also keeps giving adjournments. We have to leave our jobs and run to courts, is there a way which can ensure early time bound judgement from the State Forum.

  • December 26, 2016 at 11:52 am
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    You may consider writing to the President, NCDRC and Consumer Affairs Minster.

  • December 9, 2017 at 1:17 pm
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    I have a case in the state commission wherein the builder has been asked to submit evidence but on the last two occassions he has not filed the evidence. Now the reisterar gives him another 90 days for filing evidence. the opposite party has already delayed it by 180 days and so the registerar has given the OP 270 days for filing evdence. The Op had earlier delayed the reply to the complaint by 30 days. Twice our file went missing. What is the time limit for filing evidence? can the OP continue with this kind of delay? how to push the matter to conclusion?

  • December 19, 2017 at 12:50 pm
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    As replied to the email, you should approach the President, Consumer Forum of your state and complain about the matter.

  • February 17, 2018 at 9:18 pm
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    Though the Supreme Court has held long time back that the opposite party in Consumer Case should file reply within 30 days of receipt of copy of complaint and another 15 days can be given in addition to 30 days ,but in most of the cases the same is not being followed .The reason being that the opposite party / Builder etc do not appear on first date even after receipt of notice and complaint ..Even after appearance if they are granted 30 days time to file reply ,the matter is given the date after few months .Thus during the intervening period even after expiry of 45 days the reply is not filed and in some cases ,on next date fixed the reply is filed and in some cases ,some application taking some preliminary objection is filed instead of reply,to delay the matter.Normally members of Consumer Courts are aware of latest judgements of higher forums/ Courts ,but still in such kinds of cases,where judgement may be relevant in almost all cases a copy of the same should be be sent to all Consumer Courts etc ,so that the same can be followed effectively .Once it has been held to be mandatory to file reply in 45 days ,the opposite party must file the same in said period and can take any preliminary objection in the reply itself or can file a seperate application with the reply and on reply not being filed in 45 days ,should not be allowed to file the reply under any circumstances and defence should be struck off .

    In another case relating to pecuniary jurisdiction of Consumer Court ,the complainants themselves or through lawyers were filing cases in various Forums like District Forum ,State Commission etc ,based on value / amount of relief claimed and the complaints were being disposed off in routine .However in year 2016 ,National Commission has held that it is the value of goods Flat/or any item ,which will determine about the pecuniary jurisdiction as to where the complaint will be filed and the amount of relief claimed cannot decide pecuniary jurisdiction of Consumer Court ,For instance if the value of some item purchased is above Rs 20 Lacs,but the relief claimed in the complaint is less than Rs 20 Lacs ,say about 12 Lacs ,the complaint has to be filed before State Commission and not before District Forum.As the Judgement has not been circulated or directed to be sent to all District Forums and State Commissions ,still matters are being entertained and disposed on the basis of amount of relief claimed and in some cases now after learning about the judgement of National Commission ,the District Forums And State Commission are returning the cases (,after keeping the same pending for substantial periods ),to enable the parties to file the complaints in the appropriate Forum as per decesion of National Commission ..
    Both the above points decided in decesions are very relevant for complainants who file cases themselves and for lawyers and for Consumer Courts .

  • October 14, 2018 at 5:56 pm
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    Dear Advocate Sahil Sethi,
    Very nice Article and you have done a great job for Jaypee home buyers, a land mark judgement.
    My request: I have a similar matter as was awarded May 2016 for Kalypso Apartments of Jaypee. My matter was filed during October 2015 before your application which awarded May 2016 but mine is still waiting for responses, written synopysis etc.

    I have seen some of the buyers had requested the Hon’ble NCDRC to issue directions for handing over the possession of the flat as per Letter of Offer of possession, with Registry (in 45 days of direction) which Jaypee did, but to deposit demand money in the NCDRC only and not to pay Jayee direct.
    The offer of possession of the Flat is supposed to be upon 100% completion of the flat as per specifications, but Jaypee has demanded the pending 5%, also loaded 10% super area charge, asking to register property and only then they will do the pending work as per agreement / commitment. Many people have paid demand, registered the flat but for more than a year no completion or a very substandard completion.
    The super area of the flat at booking (Dec 2007) as per brochure was 3290 sq.ft., At provisional allotment (Feb 2008) 3460 sq.ft. and at the time of Letter of Possession of Offer July 2016 is 3763 sq. ft without any change of the room size or any other internal area of the flat.
    My Question.
    Can I apply at my own to NCDRC (as my lawyer does not agree) for early hearing, quoting the past judgement, to issue directions for paying demanded amount in NCDRC and get registry done for incomplete flat, as the pending work is still for apx 25-30 lacs, Jaypee Imperial Tower, Noida.
    Thanks

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