N.A. Britto, President:
1. Heard Shri. A. Arsekar, the lr. aadvocate of the Petitioner.
2. The Petitioner is the OP No. 2 in CC No. 35/13. Their application for condonation of delay of 37 days, in filing the written version, has been dismissed by the impugned order dated 10/01/14 and this revision is directed against the said order.
3. The Petitioner as OP No. 2 was duly served with notice of the said complaint on 3/8/13, as stated by the complainant, though this date was not mentioned in the application for condonation of delay. On 4/9/13 the said notice was forwarded by the Petitioner Company to its centralized law firm informing that the next date of hearing was fixed on 18/9/13 for filing the written version. The case of the Petitioner is that the Petitioner Company engaged a Counsel in South Goa and forwarded the necessary papers of the complaint and the wakalatnama to him, but, however due to ill health of the Counsel of the centralized law firm the written version could not be drafted and as such there was delay in sending the reply to the said Counsel of the Petitioner in Goa.
4. On 18/09/13 the Counsel in Goa put up his appearance and filed his wakalatnama but not the written version. The centralized law firm forwarded the written version which was filed on 28/10/14.
5. The Petitioner did not give the name of the Counsel of centralized law firm nor, produced his medical certificate nor filed his affidavit to substantiate the fact that there was delay on account of the ill health of the said Counsel of the centralized office.
6. The approach in filing the application was casual. The application for condonation of delay came to be dismissed by the Lr. District Forum relying on the unreported order of this Commission dated 14/5/13 in FA No. 23/13 filed by Aviva Life Insurance Company Ltd., and two ors. vs. Mr. P.P. Singh.
7. In the said unreported order dated 14/5/13 this Commission has held as follows:
In a case filed by the appellants before the National Commission, being R.P. No.1034/2013 decided on 03/04/2013, the National Commission, has referred to another case decided by the Apex Court and has repeated what the Apex Court has said:
œWhile expressing our reservation about the correctness of the view expressed in Topline Shoes Ltd. (AIR 2002 SC 2487) it is not necessary for us to expatiate on such reservation in view of the subsequent decision of this Court in Dr. J. J. Merchant case by a larger Bench in which the provisions of Section 13(1)(a) of the Consumer Protection Act were also construed. The Court categorically held that the outer period of 45 days to submit an answer of a complaint had to be adhered to strictly. Given the view expressed by a larger Bench, it would not be appropriate for us to proceed on the opinion expressed earlier by a smaller Bench in Topline Shoes.?
8. Shri. Arsekar, the lr. advocate of the Petitioner has referred to Topline Shoes Ltd., (supra) and has also submitted that the view expressed by the Apex Court is now pending before a larger Bench of the Apex Court in Civil Appeal No. 10808/2013 filed by New India Assurance Company Ltd., vs. Hilli Multipurpose Cold Storage Pvt. Ltd. Lr. advocate, therefore, submits that pending the decision by the larger Bench of the Apex Court, this RP be admitted and the impugned order be stayed.
9. We are unable to accept the submission of Shri. Arsekar, the lr. advocate of the Petitioner.
10. The OP in the application for condonation of delay, as already stated, did not state as to when the OP was served with notice of the complaint. The Petitioner only stated about the email sent on 4/9/13. The Petitioner also did not mention the name of the Counsel of the centralized law firm on account of whose illness appropriate reply could not be drafted nor produced any certificate of his illness. The approach was but casual and therefore the application for condonation of delay was also liable to be dismissed on merits, apart, from the fact that the delay of more than 45 days could not have been condoned by the Lr. District Forum, in view of the law declared by a later decision of the Apex Court, (in Fairgrowth Investments Ltd., 2004 (II) SCC 472) followed by the National Commission and then by this Commission. It is this law which is required to be followed till such time the law is reconsidered by a larger Bench of the Apex Court where the matter is now pending.
11. We therefore find there is no merit in this revision and therefore we proceed to dismiss the same with no order as to costs.