Saroj Yadav, Presiding Member

1. The present First Appeal has been filed under Section 51 of the Consumer Protection Act, 2019, by the Appellant/Opposite Party, aggrieved by the Impugned Order dated 14.12.2023, passed by the State Consumer Dispute Redressal Commission, Jammu and Kashmir at Srinagar (for short the 'State Commission') in "Jahangir Ahmed Para Versus FIL Industries" bearing case no. C.C. 40 of 2019, whereby the application for condonation of delay in filing the Written Statement was rejected.

2. The brief facts of the instant case are that the Respondent/Complainant, a fruit trader, operating under the name M/s. Latief & Brothers at Larkipora Khag, District- Budgam, had been availing cold storage facilities of the Appellant, FIL Industries Ltd., since 2015 for storing apple boxes for sale in various fruit mandis across India during peak demand seasons. For the year 2018, an Agreement was executed between the parties for storage of 20,500 apple boxes at agreed charges for a lock-in period from 15.10.2018 to 15.02.2019. The Respondent deposited the said quantity of fruit boxes on different dates, which were duly received, weighed and acknowledged by the Appellant, and it is stated that the fruit was of superior quality and in sound condition at the time of storage.

3. It is alleged that upon retrieval of the stored boxes from 27.01.2019 onwards, a substantial portion of the fruit was found to be rotten and affected by fungus due to failure of the Appellant to maintain the required temperature in the cold storage chambers. As a result, a significant quantity of fruit had to be discarded, and the remaining required repacking, reducing the number of saleable boxes from 20,500 to about 15,500. Even thereafter, the fruit was of inferior quality and, when supplied to forwarding agencies in Mumbai and Bangalore, failed to fetch the expected market price, leading to a substantial financial loss estimated at over Rs.1 Crore.

4. It is averred that despite having paid Rs.7,50,000/- in advance towards storage charges, the Appellant failed to compensate for the losses allegedly caused by its negligence, despite initial assurances. It is averred that such conduct amounts to a deficiency in service, resulting in financial hardship, loss of business goodwill and mental agony to the Respondent. Aggrieved with the same, the Respondent approached the concerned learned State Commission seeking compensation of Rs.1 Crore for loss, Rs.3 Lakhs for harassment and mental agony and Rs.1 Lakh towards litigation costs, along with other appropriate reliefs.

5. The Learned State Commission vide the Impugned Order dated 14.12.2023 made the following observations:-

                          "Heard the Counsels for the parties and considered the application for C.O.D. Counsel for the O.P. inter alia submitted that he was not served properly by the erstwhile commission and by the time he could get the complete complaint documents as required by him for preparing the written statement, the commission was winded up and he sought the permission to consider his written statement which he filed on 11/07/2023. He further argued that although the delay was not deliberate and intentional he filed the application for Condonation of Delay as well which deserves to be allowed for the circumstances beyond his control. Pertinently the notice for resumption of proceedings was served upon the O.P. directing him to cause his appearance on 01/05/2023 but the O.P. caused its appearance on 03/07/2023, i.e., after a period of 63 days when he was first required to cause his appearance and he took another 8 days to file his written statement. Even if we ignore the earlier periods, this period of 71 days (63+ 8) itself is more than the statutory period for filing the written statement. When asked, the counsel for O.P. could not explain the delay as above. Application for C.O.D. is disallowed. Written Statement filed by the O.P. on 11/07/2023 is deemed to be void ab initio and shall not be considered for the disposal of complaint. List the case for Complainant's evidence. Put up on 07/02/2024."

6. We have heard the Learned Counsel for both the parties, and perused the material available on record.

7. Learned Counsel for the Appellant has argued that the Learned State Commission erred in law and on facts in rejecting the application for Condonation of Delay and in treating the Written Statement as void ab initio vide the Impugned Order, particularly, when the Written Statement filed on 11.07.2023 had initially been taken on record and the Appellant was permitted to file an Application for Condonation of Delay, which was duly filed on 18.07.2023. It is submitted that the Respondent had approached the Appellant in September 2018 for storage of apples in the Appellant's cold storage facility, pursuant to which a chamber was reserved. However, the Respondent allegedly delayed delivery and supplied the entire lot only in November 2018, which upon inspection, was found to be lacking optimum maturity level and not meeting the required storage criteria. It is contended that despite this, the Respondent filed a complaint before the Learned State Commission seeking compensation, whereupon summons were issued to the Appellant on 07.06.2019, and the Appellant was directed to file its Written Statement.

8. It is further argued that the delay in filing the Written Statement occurred due to circumstances beyond the control of the Appellant, arising from the prevailing situation in the Union Territory of Jammu and Kashmir, following the abrogation of Article 370 in August 2019, which allegedly resulted in disruption of functioning of offices, and thereafter Government Order dated 24.10.2019 disbanded the tribunals constituted under the laws of the erstwhile State of Jammu and Kashmir. It is submitted that subsequently, the Government issued notification dated 15.04.2022, establishing the State Consumer Disputes Redressal Commission for the Union Territory of Jammu and Kashmir, and thereafter the Appellant received fresh summons on 19.03.2023 to appear before the Learned State Commission on 01.05.2023. The Appellant appeared on 01.05.2023 and again on 24.05.2023, however on both dates the Presiding Officer remained absent and the matter was adjourned, and thereafter on 03.07.2023 the Appellant appeared and was granted last opportunity to file the Written Statement by 11.07.2023, which was duly complied with.

9. Learned Counsel for Appellant has further argued that the delay in filing the Written Statement was neither intentional nor deliberate but occurred due to unavoidable and exceptional circumstances beyond its control, including the administrative situation prevailing in the region and subsequent disruption in the functioning of the Commission, and that after receipt of fresh summons, the Appellant remained regular in appearance and complied with all procedural directions promptly. It is argued that despite the bona fide conduct of the Appellant and the timely filing of the Application for Condonation of Delay on 18.07.2023 as directed, the Learned State Commission erroneously rejected the said application and struck off the defence, without properly appreciating the circumstances of the case, thereby affecting the Appellant's right to fair opportunity and principles of natural justice.

10. It is further submitted that the period prescribed for filing the Written Statement is directory in nature and that the defence ought to be taken on record in the interest of proper adjudication of the matter on merits. Learned Counsel for Appellant in support of this contention, has relied upon "Reliance General Insurance Co. Ltd. v. Mampee Timbers & Hardwares (P) Ltd.", (2021) 3 SCC 673, wherein it has been held that the Consumer Fora have discretion to condone delay in filing the Written Statement, beyond the prescribed period in appropriate cases. It is lastly submitted that allowing the present Appeal filed on 06.02.2024 would not cause prejudice to the Respondent and would serve the ends of justice by enabling adjudication of the matter after taking the defence of the Appellant on record.

11. Learned Counsel for the Respondent has argued that Learned State Commission has rightly passed the impugned order, rejecting the Application for Condonation of Delay and treating the Written Statement as void ab initio, as the notice for resumption of proceedings had been served upon the Appellant directing appearance on 01.05.2023, whereas the Appellant caused appearance only on 03.07.2023, i.e., after a delay of 63 days, and thereafter took a further eight days to file the Written Statement, thus exceeding the statutory period prescribed for filing the Written Statement. It is further submitted that earlier also the Appellant had been directed to file its Written Statement vide order dated 11.07.2019 by the next date of hearing, i.e., 02.09.2019, but failed to do so, despite the Complaint remaining pending before the Learned State Commission till October 2019.

12. It is further submitted that in the year 2018, an agreement was executed between the parties whereby initially 17,000 boxes of apples were to be stored in the cold storage chambers of the Appellant at agreed charges of Rs.16/- per box per month for a lock-in period from 15.10.2018 to 15.02.2019, which was subsequently increased to 20,500 boxes at the same agreed rate. According to the Respondent, the agreed quantity of fruit boxes was handed over on different dates and duly acknowledged by the Appellant through material receipt coupons, weighing tickets and delivery challans. It is further submitted that the Appellant commenced back- delivery of the stored fruit boxes from 27.01.2019 onwards at intervals for onward sale and auction in fruit markets across India. However, upon opening the boxes at the time of retrieval, it was allegedly found that due to carelessness and mismanagement on the part of the Appellant in maintaining the optimum temperature in the cold storage chambers, the fruit had deteriorated and developed fungus, which was also witnessed by the office-bearers of the Appellant on the spot, resulting in segregation and disposal of rotten fruit and reduction of boxes from 20,500 to about 15,500, including half boxes. It is submitted that even after repacking, the remaining fruit fetched lower prices in markets at Delhi, Mumbai and Bangalore, causing a loss exceeding Rs.1,00,00,000/- to the Respondent.

13. Learned Counsel for Respondent has further argued that the plea taken by the Appellant in its Application for Condonation of Delay that it had not been supplied with relevant documents is incorrect, as complete documents had been supplied along with the Complaint and no objection in this regard was raised by the Appellant in proceedings dated 11.07.2019. It is submitted that despite having sufficient opportunity between 11.07.2019 and October 2019, the Appellant neither filed its Written Statement nor raised any objection regarding documents. It is also submitted that after the revival of the Learned State Commission, fresh notice was issued directing the Appellant to appear on 01.05.2023, yet the Appellant failed to appear within time and also failed to file the Written Statement within the prescribed period. It is further submitted that though the Appellant was granted a last opportunity and the matter was listed on 11.07.2023, the Written Statement filed on that date was not taken on record and thereafter, on directions of the Learned State Commission, the Appellant filed an Application for Condonation of Delay on 18.07.2023, which came to be rightly rejected by the Learned State Commission while holding the Written Statement to be void ab initio. In view of the settled law laid down by the Hon'ble Supreme Court in "New India Assurance Co. Ltd. Vs. Hilli Multipurpose Cold Storage Pvt. Ltd.", (2020) 5 SCC 757, wherein it has been held that the outer time limit prescribed for filing the Written Statement under Section 13 of the Consumer Protection Act, 1986 is mandatory and cannot be extended beyond the prescribed period. Accordingly, it is contended that the impugned order dated 14.12.2023 has been passed in accordance with law and does not warrant interference.

14. We have considered the rival contentions and perused the material available on record.

15. As per Section 38 (3) (a) of the Consumer Protection Act, 2019, the written version shall be filed within a period of thirty days or within the extended time, which cannot be more than fifteen days from the date of receipt of the notice. Section 38 (3)(a) runs as under:

                          "38 (3) (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 Commission."

16. In this matter, admittedly, the written version has not been filed within statutory period of thirty days or counting an extendable period of fifteen days that is in total forty-five days. As per settled law in "New India Assurance Co. Ltd. Vs. Hilli Multipurpose Cold Storage Pvt. Ltd." (supra), the period cannot be extended beyond forty-five days.

17. The learned counsel for the appellant relied upon "Reliance General Insurance Co. Ltd. v. Mampee Timbers & Hardwares (P) Ltd." (Supra) and submitted that this period may be extended beyond forty-five days as has been decided by the Hon'ble Apex Court in this matter.

18. Gone through the above cited case law wherein the Hon'ble Supreme Court has laid down as under:

                          "5. We consider it appropriate to direct that pending decision of the larger Bench, it will be open to the Fora concerned to accept the written statement filed beyond the stipulated time of 45 days in an appropriate case, on suitable terms, including the payment of costs, and to proceed with the matter."

19. Thus, the period of forty-five days can be extended but only in appropriate cases and on suitable terms. In the matter in hand, there is a delay of 71 days in filing of the written version before the learned State Commission and that delay has not been properly explained. In such a situation, there appears no reason to interfere with the order passed by the learned State Commission. Hence, this appeal deserves to be dismissed and is dismissed accordingly.

Interim applications pending, if any, shall stand disposed of accordingly. Let the file be consigned in the record room after necessary action.