# Mrs. Anupama Dwivedi & Ors v. Bharti Axa Life Insurance Co. Ltd. & Ors

- **Citation:** (2024) 7 ILRA 884
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2024-07-19
- **Case number:** Matters Under Article 227 No. 4420 of 2022
- **Bench:** Manish Kumar
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/mrs-anupama-dwivedi-ors-v-bharti-axa-life-insurance-co-ltd-ors-54557
- **Pages:** 13

## Headnote

A. Civil Law - Consumer protection law-
Consumer Protection Act, 2019- Consumer
Protection
(Consumer
Commission
Procedure) Regulations 2020- Respondent
insurance
company
repudiated
the
insurance
claim
of
the
petitioner-
Petitioners filed complaint before DCDRC-
Notice issued- written statement filed and
accepted after passage of statutory period
of 45 days- Order challenged in revision
before UPSCDRC- UPSCDRC upheld the
order passed by DCDRC- both orders
under challenge.

B. DCDRC accepted the written statement
after 30 days- without any application by
respondents seeking 15 days extra time-
Section 38 (2) (a) of the Act, 2019-
verbatim similar to Section 13(1) (a) of
the
Consumer
Protection
Act,
1986-
Written statement cannot be accepted
after 45 days- DCDRC does not have
jurisdiction to accept written statement
after 45 days- amounts to unwarranted
jurisdiction not possessed- gross abuse of
exercise of jurisdiction- objection, if any,
has to be raised on the first date of
appearance. (Paras 18 to 22)
HELD:
From the perusal of the statutory provisions and
judgments, it is clear that after 45 days, the
written statement cannot be accepted meaning
thereby after 45 days, D.C.D.R.C. is not having
any jurisdiction to accept the written statement.
In the present case, after about more than 168
days as far as it is related to the notice upon
respondent no. 4 and after about more than 155
7 All. Mrs. Anupama Dwivedi & Ors. Vs. Bharti Axa Life Insurance Co. Ltd. & Ors.
885
days as far as it is related to respondent nos. 1,
2 and 3 as notice was served upon respondent
no. 4 on 02.04.2022 and the notice upon
respondent no. 1, 2 and 3 were served on
05.04.2022 and the tracking report has been
enclosed along with the writ petition which is on
record, the written statement was permitted to
be filed. (Para 20)

Hence, accepting the written statement after
the expiry of 30 days period and more so, in
absence of any application for extension of 15
days period before the DCDRC and accepting
the written statement by the DCDRC after 45
days is nothing but amounts to an unwarranted
assumption of jurisdiction not possessed or
gross abuse of exercise of jurisdiction. (Para 21)

C. Availability of remedy of review under
Section 40 of the Act- challenge to the
order on the ground- order passed without
jurisdiction- violation of principles of
natural justice- Alternative remedy held
not to be an absolute bar. (Paras 23 and
24)
HELD:
Section 40 of the Act, 2019 empowers DCDRC
to review any of the order passed by it but in
the present case, the challenge of the impugned
order is on the basis that the order of DCDRC is
without jurisdiction and in violation of principles
of natural justice as no opportunity was given to
file objections against the recall application.
Under these circumstances and as per the
settled law, the alternative remedy is not an
absolute bar as held in the case of Godrej Sara
Lee

## Text

_Characters 0–39,722 of 43,723. This is a partial read: ask again with offset=39722 for what follows._

884 INDIAN LAW REPORTS ALLAHABAD SERIES
maintainable even otherwise as liberty has
already
been
granted
to
the
tenant/petitioner to take all objections in
the written statement to the application
under Section 10 of the Act. The issue No.
2 is decided accordingly.

25. Now, coming to the issue No.
3, the Court after hearing the parties and
perusing the materials on record and in
view of the discussion hereinabove comes
to the conclusion that the impugned order
dated 1.3.2023 passed by the Rent
Authority cannot be said to suffer from
patent illegality by declining to decide the
application of the petitioner under Order 7
Rule 11 CPC read with Section 34 (1) (h)
of the U.P. Act No. 16 of 2021 inasmuch as
opportunity has already been granted to the
petitioner to take all objections as to the
maintainability of the application under
Section 10 of the Act in the written
statement to be considered at the final
hearing stage.

26. Consequently, the Court finds no
merit in all the aforesaid writ petitions. All
the aforesaid writ petitions are accordingly
dismissed. The interim order operating is
discharged. The Rent Authority is, however,
directed to decide the application under
Section 10 of the Act No. 16 of 2021 with all
expedition preferably within Sixty days as
mandated by Section 33 (2) of the U.P. Act
No. 16 of 2021 from the date of service of
certified copy of the order of this Court. No
order as to costs.
----------
(2024) 7 ILRA 884
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 19.07.2024

BEFORE

THE HON'BLE MANISH KUMAR, J.
Matters Under Article 227 No. 4420 of 2022

Mrs. Anupama Dwivedi & Ors.
 ...Petitioners
Versus
Bharti Axa Life Insurance Co. Ltd. & Ors.
 ...Respondents

Counsel for the Petitioners:
Sri Pradeep Kumar Shukla, Sri Skand Bajpai

Counsel for the Respondents:
Sri Abhishek Bhatnagar, A.S.G.I., C.S.C., Sri
Saurabh Misra

A. Civil Law - Consumer protection law-
Consumer Protection Act, 2019- Consumer
Protection
(Consumer
Commission
Procedure) Regulations 2020- Respondent
insurance
company
repudiated
the
insurance
claim
of
the
petitioner-
Petitioners filed complaint before DCDRC-
Notice issued- written statement filed and
accepted after passage of statutory period
of 45 days- Order challenged in revision
before UPSCDRC- UPSCDRC upheld the
order passed by DCDRC- both orders
under challenge.

B. DCDRC accepted the written statement
after 30 days- without any application by
respondents seeking 15 days extra time-
Section 38 (2) (a) of the Act, 2019-
verbatim similar to Section 13(1) (a) of
the
Consumer
Protection
Act,
1986-
Written statement cannot be accepted
after 45 days- DCDRC does not have
jurisdiction to accept written statement
after 45 days- amounts to unwarranted
jurisdiction not possessed- gross abuse of
exercise of jurisdiction- objection, if any,
has to be raised on the first date of
appearance. (Paras 18 to 22)
HELD:
From the perusal of the statutory provisions and
judgments, it is clear that after 45 days, the
written statement cannot be accepted meaning
thereby after 45 days, D.C.D.R.C. is not having
any jurisdiction to accept the written statement.
In the present case, after about more than 168
days as far as it is related to the notice upon
respondent no. 4 and after about more than 155
7 All. Mrs. Anupama Dwivedi & Ors. Vs. Bharti Axa Life Insurance Co. Ltd. & Ors.
885
days as far as it is related to respondent nos. 1,
2 and 3 as notice was served upon respondent
no. 4 on 02.04.2022 and the notice upon
respondent no. 1, 2 and 3 were served on
05.04.2022 and the tracking report has been
enclosed along with the writ petition which is on
record, the written statement was permitted to
be filed. (Para 20)

Hence, accepting the written statement after
the expiry of 30 days period and more so, in
absence of any application for extension of 15
days period before the DCDRC and accepting
the written statement by the DCDRC after 45
days is nothing but amounts to an unwarranted
assumption of jurisdiction not possessed or
gross abuse of exercise of jurisdiction. (Para 21)

C. Availability of remedy of review under
Section 40 of the Act- challenge to the
order on the ground- order passed without
jurisdiction- violation of principles of
natural justice- Alternative remedy held
not to be an absolute bar. (Paras 23 and
24)
HELD:
Section 40 of the Act, 2019 empowers DCDRC
to review any of the order passed by it but in
the present case, the challenge of the impugned
order is on the basis that the order of DCDRC is
without jurisdiction and in violation of principles
of natural justice as no opportunity was given to
file objections against the recall application.
Under these circumstances and as per the
settled law, the alternative remedy is not an
absolute bar as held in the case of Godrej Sara
Lee Limited Vs Excise and Taxation Officer
Cum Assessing Officers & ors.: 2023 SCC
online Supreme Court 95. (Para 24)

D. Availability of alternative remedy under
Section 51(2) of the Act, 2019- Appeal to
National Commission maintainable- Only
where
the
case
involves
substantial
question of law- issue finally settled by
the court- it is not a substantial question
of law of general importance- this remedy
not available to the petitioners- it merely
involves
application
of
a
statutory
provision. (Paras 25 to 27)
Held:
The Hon'ble Supreme Court has held that where
the issue is finally settled by the Court then it
cannot be said that it is substantial question of
law of general importance. Filing of written
statement after a period of 45 days is not
permissible under the law. Here it is only a
question of applying the provision of law
contained in Section 38(2)(a) of the Consumer
Protection Act, 2019 and further applying the
settled as laid down by the Hon'ble Supreme
Court that the written statement cannot be
accepted after lapse of 45 days. Here, no
substantial
question
of
law
of
general
importance is involved. Hence the remedy under
Section 51 (2) of the Act is not attracted in case
of the petitioners. (Para 27)

E. Remedy under Section 58 (1) (a) (iii) of
the Act, 2019- it is available only against
the order passed by the St. Commission in
its original jurisdiction- this plea of
petitioners is not maintainable- Appeal is
maintainable- Impugned order passed
without jurisdiction- hence, petition under
Art. 227 held to be maintainable- petition
allowed- DCDRC to hear the matter
ignoring the written statement filed by the
respondents. (Paras 28 to 30)
Held:
A reading of these provisions makes it clear that
the appeal is maintainable before the National
Commission, for the reason Section 51(1)
provides
an
appeal
before
the
National
Commission only against the orders passed
under Section 47 (1)(a)(i) and Section 47
(1)(a)(ii). Section 47 (1)(a)(i) and Section
47(1)(a)(ii) deals with the matters where the
orders are passed by the St. Commission in its
original jurisdiction and Section 47(1)(a)(iii) is
for appeals against the order of any District
Commission within the St. Against which the
remedy of appeal is available under Section 58
(1) of the Act, 2019. But here, as discussed
above, the order passed by the DCDRC is
without jurisdiction in the light of judgment in
the case of New India Insurance (supra).
Hence as per the law laid down in the case of
Godrej Sara Lee Limited (supra) which has
been passed by placing reliance upon the
judgment
in
the
case
of
Whirlpool
Corporation Vs Registrar of Trade Marks,
Mumbai, 1998, 8 SCC 1, the writ petition
under Article 227 of the Constitution of India is
maintainable. The judgments relied upon by
learned counsel for respondents with regard to
886 INDIAN LAW REPORTS ALLAHABAD SERIES
the availability of alternative remedy and
maintainability of the writ petition in the case of
Mohamed Ali Vs V. Jaya & ors.passed in
Civil Appeal No. 4113 of 2022, judgment
and order dated 11.7.2022 and judgment
dated 13.10.2022 passed in the case of Raj
Shri Agarwal & Ram Shri Agarwal & anr.Vs
Sudheer Mohan & ors.(Civil Appeal No.
7266 of 2022) are not applicable in the facts
of the present case as in those cases no such
question was involved as in the present case.
(Para 29)

Petition allowed. (E-14)

List of Cases cited:

1. New India Assurance Company Limited Vs
Hilli Multipurpose Cold Storage Pvt Ltd. reported
in (2020) 5 SCC 757

2. Mohamed Ali Vs Vs Jaya & ors. passed in Civil
Appeal No. 4113 of 2022

3. Raj Shri Agarwal & Ram Shri Agarwal &
anr.Vs Sudheer Mohan & ors.(Civil Appeal No.
7266 of 2022)

4. A.R.N. Infrastructure India Limited Vs Hara
Prasad Singh (Civil Appeal Diary Nos. 31182 of
2023)

5. Jodhey & ors. Vs the St.through Ram Sahai
reported in AIR 1952 All 788

6. Godrej Sara Lee Limited Vs Excise and
Taxation Officer Cum Assessing Officers & ors.:
2023 SCC online Supreme Court 95

7. V. Valla Swami Vs Inspector General of Police,
Tamilnadu Madras & anr.1981 (4) SCC 246

8. Appaiya Vs Andimuthu @ Thangapandi &
ors.: 2023 SCC Online Supreme Court 1183

9. Principal Maharani Lal Kunwari Post Graduate
College, Balrampur Vs Stae Consumer Dispute
Redressal Commission, U.P. Lko through its
President & ors.

10. Achutananda Baidya Vs Prafullya Kumar
Gayen & ors.reported in AIR 1997 SC 2077

11. Ajay Singh & ors. Vs St. of Chattisgarh &
ors. reported in AIR 2017 SC 310

(Delivered by Hon'ble Manish Kumar, J.)

1. Heard Shri Skand Bajpai, learned
counsel for petitioner, Shri Abhishek
Bhatnagar, learned counsel for respondent
as well as learned State Counsel and
perused the record.

2. The present writ petition has
been preferred for setting aside the order
dated 21.10.2022 passed by Uttar Pradesh
State
Consumer
Disputes
Redressal
Commission,
Lucknow
(hereinafter
referred as UPSCDRC) in RP/73/2022
titled as Mrs. Anupama Dwivedi and others
versus Bharti Axa Life Insurance Co. Ltd,
through Managing Director and CEO,
Mumbai and others; impugned order dated
15.10.2022 passed by learned District
Court
Disputes
Consumer
Redressal
Commision
(hereinafter
referred
as
DCDRC) in CC/81/22 titled as Mrs.
Anupama Dwivedi and others versus Bharti
Axa Life Insurance Co. Ltd Through
Managing Director and CEO and others;
and with a further prayer to pass an order
declaring
the
Consumer
Protection
Procedure Regulations, 2020 as mandatory
and binding on the Consumer Commission
and direct strict observance of all the
regulations contained therein and pass an
order fixing a short date for evidence of the
complainant before the learned DCDRC
with a direction to dispose the matter in a
time bound manner on priority basis and in
line with Regulation 26 of the Consumer
Protection
(Consumer
Commission
Procedure) Regulations 2020.

3. Learned counsel for petitioners
has submitted that a complaint was filed by
the petitioners before the DCDRC, against
7 All. Mrs. Anupama Dwivedi & Ors. Vs. Bharti Axa Life Insurance Co. Ltd. & Ors.
887
the respondents when the respondents have
repudiated the insurance claim of the
petitioners after the demise of husband of
petitioner no. 1 and father of petitioner nos.
2 and 3, who was insured with the
respondent company. In the said complaint
case, the notice was issued on 01.04.2022
and the notice was served upon respondent
no. 4 on 02.04.2022 and the respondent
nos. 1, 2 and 3 on 05.04.2022. The first
date was fixed thereafter on 13.05.2022, on
that date, a counsel had put in appearance
on
behalf
of
respondents
and
filed
Vakalatnama and the case was next fixed
for 23.06.2022. On the date fixed i.e.
23.06.2022, no one had either put in
appearance or filed written statement on
behalf of respondents and the court had
passed an order closing the opportunity of
filing of the written statement and fixed the
case on 15.10.2022.

4. It is further submitted that on
15.10.2022,
a
recall
application
was
preferred by the counsel along with the
copy of the written statement which was
allowed on the very same date by recalling
the order dated 23.06.2022, the order by
which the opportunity of filing the written
statement was closed and accepted the
written statement filed on behalf of the
respondents. The said order was passed
without providing any opportunity of
hearing to the petitioners to file an
objection against the recall application
though the counsel was present and
apprised the court that after the lapse of 45
days, as per Section 38(2)(a) of the
Consumer Protection Act, 2019, written
statement could be accepted and that there
was no illegality in the order dated
23.06.2022.

5. It is further contended that
against the order dated 15.10.2022, a
revision
under
Section
47(1)(b)
was
preferred by the petitioners before the
Commission taking all the pleas by placing
reliance upon Section 13(1)(a) of the Act,
1986 and the judgments of the Hon'ble
Supreme Court particularly on the point
that after 45 days' period, the written
submission could not be accepted.

6. The said revision preferred by
the petitioners was dismissed by judgment
and order dated 20.10.2022 by the State
Commission without recording any finding
on the legal plea raised by the petitioners
regarding the jurisdiction of the DCDRC
and dismissed the revision only on the
point that the recall application was
allowed after imposing cost, hence no
interference is called for.

7. It is further submitted that as per
Section
38(2)(a)
of
the
Consumer
Protection Act, 2019 (hereinafter referred
as Act, 2019), 30 days' period is provided
or such extended period not exceeding 15
days as may be granted to it. The same
provision is in the earlier Act i.e. Section
13(1)(a) in Consumer Protection Act, 1986
(hereinafter referred as Act, 1986). Both
the Sections are in verbatim the same.
Section 13(1)(a) was interpreted by the
Hon'ble Supreme Court in the case of New
India Assurance Company Limited Vs.
Hilli Multipurpose Cold Storage Pvt
Limited reported in (2020) 5 SCC 757,
wherein it has been held that Consumer
Commission did not have jurisdiction to
accept written statement of opposite parties
beyond 45 days of service of notice.

8. It is further submitted that the
application
for
recall
preferred
on
15.10.2022 was signed by counsel and the
same was not supported by an affidavit of
888 INDIAN LAW REPORTS ALLAHABAD SERIES
the respondents i.e. the client or the party to
the complaint case.

9. It is further submitted that in the
judgment in the case of New India
Assurance (supra), it has been held that if
the
respondents
have
any
objection
regarding notice, it must be raised on the
first date of hearing whereas no objection
was raised on the first date of hearing when
the counsel for the respondent had filed his
vakalatnama on 13.05.2022.

10. It is further submitted that in
the counter affidavit before this court, the
respondents have come with a case that it
had wrongly been mentioned in the order
dated 23.06.2022 that no one had appeared
on behalf of respondents whereas one Shri
Arpit Pandey on behalf of Shri Abhishek
Bhatnagar, Advocate was present and his
signature is there on the order sheet but the
said signature for appearance of Shri Arpit
Pandey is subsequent to the passing of the
order not of the same date for the reason
the petitioners had obtained the certified
copy of the order dated 23.06.2022, on the
very
same
day,
wherein
no
such
endorsement or appearance signed by Shri
Arpit Pandey on the order sheet dated
23.06.2022, copy of which has been
enclosed as R.A. No. 1 and secondly, Shri
Arpit Pandey could not appear on behalf of
Shri Abhishek Bhatnagar as Shri Arpit
Pandey was neither the counsel nor the
party to the case as he has enrolled
subsequently, as an advocate with the Bar
Council on 31.12.2022 (R.A-3) which
shows that manipulation or fraud has been
played with the record of the court.

11. On the other hand, Shri
Abhishek Bhatnagar, learned counsel for
the respondents has raised a preliminary
objection regarding maintainability of the
present petition on the ground that the
petitioners have an alternative remedy to
file a review under Section 40 or an appeal
under Section 51 (2) and Section 58 before
the National Commission as such, the writ
petition is not maintainable under Article
227 of the Constitution of India. In support
of his submissions learned counsel for the
respondent has relied upon the judgments
of Hon'ble Supreme Court in the case of
Mohamed Ali Vs. V. Jaya and others
passed in Civil Appeal No. 4113 of 2022,
judgment and order dated 11.7.2022 and
judgment dated 13.10.2022 passed in the
case of Raj Shri Agarwal & Ram Shri
Agarwal and another Vs. Sudheer Mohan
and others (Civil Appeal No. 7266 of
2022), and in the case of
A.R.N.
Infrastructure India Limited Vs. Hara
Prasad Singh (Civil Appeal Diary Nos.
31182 of 2023), judgment and order dated
04.09.2023.

12. It is further submitted that this
Court, under Article 227 of the Constitution
of India, has no jurisdiction to look into the
merits of the case.

13. It is further submitted that the
notice was never received from the Court
but the notices were sent by the petitioners
that too incomplete as certain documents
were not enclosed with the notice.

14. In reply to the preliminary
objections raised by the learned counsel for
the petitioner has relied upon the judgment
of this Court in the case of Jodhey and
others Vs. the State through Ram Sahai
reported in AIR 1952 All 788, where the
scope of Article 227 of the Constitution of
India has been discussed and it has been
held that the powers under Article 227
cannot be exercised unless there has been
an unwarranted assumption of jurisdiction
7 All. Mrs. Anupama Dwivedi & Ors. Vs. Bharti Axa Life Insurance Co. Ltd. & Ors.
889
not possessed by the Courts or a gross
abuse of jurisdiction possessed by them or
an unjustifiable refusal to exercise a
jurisdiction vested in them by law.

15. Learned counsel for the
petitioner has submitted that the remedy of
review under Section 40 of the Act, 2019 is
not an bar for filing the present writ
petition when the proceedings are wholly
without jurisdiction and in violation of
principles of natural justice and in support
of his submission learned counsel for the
petitioner has relied on the judgment of the
Hon'ble Supreme Court in the case of
Godrej Sara Lee Limited Vs. Excise and
Taxation Officer Cum Assessing Officers
and others: 2023 SCC online Supreme
Court 95 and judgment of the Hon'ble
Supreme Court in the case of V. Valla
Swami Vs. Inspector General of Police,
Tamilnadu Madras and another 1981 (4)
SCC 246.

16. It is further submitted that as
far as availability of remedy to file an
appeal under Section 51(2) of the Act, 2019
is concerned, it is also not available to the
petitioner, as no substantial question of law
is involved in the present case. The issue
has already attained finality by the
judgment of the Hon'ble Supreme Court
and in support of his submission, learned
counsel for the petitioner has relied upon
the judgment of the the Hon'ble Supreme
Court in the case of Appaiya vs Andimuthu
@ Thangapandi and others: 2023 SCC
Online Supreme Court 1183.

17. As far as availability of remedy
to file an appeal under Section 58(1)(a)(iii)
of the Consumer Protection Act, 2019 is
concerned, is also not available, as the
same is available, only if the State
Commission has exercised its original
jurisdiction under Section 47(1)(a)(i) and
47 (1)(a)(ii) and passed an order, as Section
58 of the Act, 2019 is subject to Section 51
of the Act, 2019. In support of his
submission,
learned
counsel
for
the
petitioner has relied upon a judgment of
this Court in the case of Principal
Maharani Lal Kunwari Post Graduate
College, Balrampur versus Stae Consumer
Dispute Redressal Commission, U.P. Lko
through its President and others.

18. After hearing learned counsel
for the parties, going through the record of
the case and the judgments relied by the
learned counsel for the respective parties,
the issue involved in this case is whether
accepting the written statement filed by the
respondents after 30 days and without
moving any application for extension of 15
days time, it would amount to an
unwarranted assumption of jurisdiction not
possessed by the courts or a gross abuse of
jurisdiction vested in them after expiry of
45 days period, as prescribed under the
statute. It is necessary to first go through
Section 38(2)(a) of the Act, 2019 and
13(1)(a) of the Act 1986 and for
convenience both the provisions are quoted
hereinbelow:-

 Section 38 (2) (a) of the Act,
2019 :-

 38. Procedure on admission of
complaint.-(1) The District Commission
shall, on admission of a complaint, proceed
with such complaint.

 (2) Where the complaint relates
to any goods, the District Commission
shall,-

 (a) refer a copy of the admitted
complaint, within twenty one days from the
890 INDIAN LAW REPORTS ALLAHABAD SERIES
date of its admission to the opposite party
mentioned in the complaint 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 it;

 Section 13 (1) A of the Act, 1986

 13. Procedure on admission of
complaint.-

 (1) The District Forum shall, on
admission of a complaint, if it relates to any
goods, refer a copy of the admitted
complaint, within twenty-one days from the
date of its admission to the opposite party
mentioned in the complaint 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.'

19. The language of both the
provisions are in verbatim the same and
prescribed period for filing the written
statement i.e. initially 30 days, which is
extendable to 15 more days i.e. total 45
days. The said provision 13 (1) (a) of the
Act, 1986 was considered by the Hon'ble
Supreme Court in the case of New India
Insurance Company Limited Vs. Hill
Multi Purpose Cold Storage Pvt Ltd. The
relevant paras nos. 61 and 62 of the same
are quoted herein-below:-

 '61.
Now
reverting
to
the
provisions of the Consumer Protection Act,
a conjoint reading of clauses (a) and (b) of
sub-section (2) of Section 13 would make
the position absolutely clear that the
commencing point of limitation of 30 days,
under the aforesaid provisions, would be
from the date of receipt of notice
accompanied by a copy of the complaint,
and not merely receipt of the notice, as the
response has to be given, within the
stipulated time, to the averments made in
the complaint and unless a copy the
complaint is served on the opposite party,
he would not be in a position to furnish its
reply. Thus, mere service of notice, without
service of the copy of the complaint, would
not suffice and cannot be the commencing
point of 30 days under the aforesaid section
of the Act. We may, however, clarify that
the objection of not having received a copy
of the complaint along with the notice
should be raised on the first date itself and
not thereafter, otherwise if permitted to be
raised at any point later would defeat the
very purpose of the Act, which is to provide
simple and speedy redressal of consumer
disputes.

 62. To conclude, we hold that our
answer to the first question is that the
District Forum has no power to extend the
time for filing the response to the complaint
beyond the period of 15 days in addition to
30 days as is envisaged under Section 13 of
the Consumer Protection Act and the
answer to the second question is that the
commencing point of limitation of 30 days
under Section 13
of
the
Consumer
Protection Act would be from the date of
receipt of the notice accompanied with the
complaint by the opposite party, and not
mere receipt of the notice of the complaint.'

20. From the perusal of the
statutory provisions and judgments, it is
clear that after 45 days, the written
statement cannot be accepted meaning
thereby after 45 days, D.C.D.R.C. is not
having any jurisdiction to accept the
written statement. In the present case, after
about more than 168 days as far as it is
related to the notice upon respondent no. 4
and after about more than 155 days as far
7 All. Mrs. Anupama Dwivedi & Ors. Vs. Bharti Axa Life Insurance Co. Ltd. & Ors.
891
as it is related to respondent nos. 1, 2 and 3
as notice was served upon respondent no. 4
on 02.04.2022 and the notice upon
respondent no. 1, 2 and 3 were served on
05.04.2022 and the tracking report has been
enclosed along with the writ petition which
is on record, the written statement was
permitted to be filed.

21. Hence, accepting the written
statement after the expiry of 30 days period
and more so, in absence of any application
for extension of 15 days period before the
DCDRC
and
accepting
the
written
statement by the DCDRC after 45 days is
nothing but amounts to an unwarranted
assumption of jurisdiction not possessed or
gross abuse of exercise of jurisdiction.

22. The submission of learned
counsel for the respondent that the notice
was
not
received
from
the
District
Commission, it was sent by the petitioners
so it is no notice in the eyes of law. The
another contention of the learned counsel
for the respondent, that too the notice was
with incomplete papers is not acceptable
as per the law laid down by Hon'ble
Supreme Court in the case of New India
Insurance (supra), wherein it has been
held that if any objection is to be made that
is to be raised on the first date of
appearance
i.e.
in
the
present
case
respondent had put in appearance before
DCDRC on 13.05.2022 through their
counsel and no such objection was raised
by them. Hence, now at this stage, the
respondents cannot take this plea. Apart
from that in their recall application, the
respondents have disclosed that they have
received the complete notice on the
previous date i.e. 23.06.2022. If the period
is to be calculated from 23.06.2022, even
the period of 45 days had expired on
08.08.2022 since written statement was
filed on 15.10.2022. Even as per the case of
the respondents, the written statement was
not filed within 45 days.

23. The submission of learned
counsel
for
respondents
regarding
availability of remedy of review before
DCDRC under Section 40 of the Act, 2019,
for that Section 40 of the Act, 2019 is
quoted hereinbelow:-

 '40.
Review
by
District
Commission in certain cases.-The District
Commission shall have the power to review
any of the order passed by it if there is an
error apparent on the face of the record,
either of its own motion or on an
application made by any of the parties
within thirty days of such order.'

24. Section 40 of the Act, 2019
empowers DCDRC to review any of the
order passed by it but in the present case,
the challenge of the impugned order is on
the basis that the order of DCDRC is
without jurisdiction and in violation of
principles
of
natural
justice
as
no
opportunity was given to file objections
against the recall application. Under these
circumstances and as per the settled law,
the alternative remedy is not an absolute
bar as held in the case of Godrej Sara Lee
Limited Vs. Excise and Taxation Officer
Cum Assessing Officers and others: 2023
SCC online Supreme Court 95. The
relevant
paragraphs
are
quoted
hereinbelow:-

 '6. At the end of last century, this
Court in paragraph-15 of its decision
report in (1998) 8 SCC 1 (Whirlpool
Corporation versus Registrar of Trade
Marks, Mumbai) carved out the exceptions
on the existence whereof a writ Court
would be justified in entertaining a writ
892 INDIAN LAW REPORTS ALLAHABAD SERIES
petition despite party approaching it not
having availed the alternative remedy
provided by the statute. The same reads as
under:

 (i) where the writ petition seeks
enforcement of any of the fundamental
rights;
(ii) where there is violation of principles of
natural justice;

 (iii) where the order or the
proceedings
are
wholly
without
jurisdiction; or

 (iv) where the vires of an Act is
challenged.'

25. The learned counsel for
respondents
has
submitted
regarding
availability of alternative remedy under
Section 51 (2) of the Act, 2019 for filing an
appeal before the National Commission.
For convenience, Section 51(2) is quoted
hereinbelow:-

 'Section 51(2) of the Act, 2019:-
An appeal shall lie to the National
Commission from any order passed in
appeal by any State Commission, if the
National Commission is satisfied that the
case involves a substantial question of law'

26. A reading of Section 51 (2)
clearly provides that if the National
Commission is satisfied that the case
involves substantial question of law only
then an appeal is maintainable under
Section 51(2) and the substantial question
of law has been decided by the Hon'ble
Supreme Court in the case of Appaiya
Vs. Andimuthu alias Thangapandi and
others reported in 2023 SCC OnLine SC
1183. The relevant paragraph nos. 13 and
14 are being reproduced hereunder :-
 ''13.
In
the
decision
in
Lankeshwar Malakar v. R. Deka, it was
held that in order to be substantial question
of law, the test is whether it is of general
public importance or whether it directly or
substantially affects the right of the parties
or whether the question is still open i.e.. it
is not finally settled by the Supreme Court,
Federal Court or Privy Council.

 14. In fact, in Santosh Hazari v.
Purushottam Tiwar while exploring the
meaning
of
the
phrase
"substantial
question of law" this Court held:

 "12. The phrase "substantial
question of law", as occurring in the
amended Section 100 is not defined in the
Code. The word substantial, as qualifying
"question of law", means of having
substance, essential, real, of sound worth,
important or considerable It is to be
understood
as
something
in
contradistinction with technical, of no
substance or consequence, or academic
merely However, it is clear that the
legislature has chosen not to qualify the
scope of "substantial question of law by
suffixing the words "of general importance
as has been done in many other provisions
such as Section 109 of the Code or Article
13(1)(a)
of
the
Constitution.
The
substantial question of law on which a
second appeal shall be heard need not
necessarily be a substantial question of law
of general importance. In Guran Ditta v. T.
Ram Ditta (AIR 1928 PC 172: (1927-28)
55 IA 235], the phrase "substantial
question of law" as it was employed in the
last clause of the then existing Section 110
CPC (since omitted by the Amendment Act,
1973) came up for consideration and their
Lordships held that it did not mean a
substantial question of general importance
but a substantial question of law which was
7 All. Mrs. Anupama Dwivedi & Ors. Vs. Bharti Axa Life Insurance Co. Ltd. & Ors.
893
involved in the case as between the parties.
In Sir Chunilal V. Mehta & Sons Ltd. v.
Century Spg, and Mfg. Co. Ltd. (1962 Supp
(3) SCR 549] the Constitution Bench
expressed agreement with the following
view taken by a Full Bench of the Madras
High Court in Rimmalapudi Subba Rao v.
Noony Veeraju AIR 1951 Mad 969]: When
a question of law is fairly arguable, where
there is room for difference of opinion on it
or where the Court thought it necessary to
deal with that question at some length and
discuss alternative views, then the question
would be a substantial question of law. On
the other hand, if the question was
practically covered by the decision of the
highest court or if the general principles to
be applied in determining the question are
well settled and the only question was of
applying those principles to the particular
facts of the case it would not be a
substantial question of law." and laid down
the following test as proper test, for
determining whether a question of law
raised in the case is substantial:

 "The proper test for determining
whether a question of law raised in the
case is substantial would, in our opinion,
be whether it is of general public
importance or whether it directly and
substantially affects the rights of the parties
and if so whether it is either an open
question in the sense that it is not finally
settled by this Court or by the Privy
Council or by the Federal Court or is not
free from difficulty or calls for discussion
of alternative views. If the question is
settled by the highest court or the general
principles to be applied in determining the
question are well settled and there is a
mere question of applying those principles
or that the plea raised is palpably absurd
the question would not be a substantial
question of law."
27. The Hon'ble Supreme Court
has held that where the issue is finally
settled by the Court then it cannot be said
that it is substantial question of law of
general importance. Filing of written
statement after a period of 45 days is not
permissible under the law. Here it is only a
question of applying the provision of law
contained in Section 38(2)(a) of the
Consumer Protection Act, 2019 and further
applying the settled as laid down by the
Hon'ble Supreme Court that the written
statement cannot be accepted after lapse of
45 days. Here, no substantial question of
law of general importance is involved.
Hence the remedy under Section 51 (2) of
the Act is not attracted in case of the
petitioners.

28. As far as the submission regarding
availability
of
remedy
under
Section
58(1)(a)(iii) of the Act, 2019 is concerned, for
that, the submission raised by learned counsel
for petitioner that the appeal under Section
58(1)(a)(iii) is only against the order passed by
the State Commission in its original jurisdiction,
which is subject to Section 51(1) of the Act,
2019 is not acceptable. For convenience,
Section 47(1), 51(1) and 58 of the Act, 2019
are quoted hereinbelow:-

 '47.
Jurisdiction
of
State
Commission.-(1) Subject to the other
provisions
of
this
Act,
the
State
Commission shall have jurisdiction?

 (a) to entertain?

 (i) complaints where the value of
the
goods
or
services
paid
as
consideration, exceeds rupees one crore,
but does not exceed rupees ten crore:

 Provided that where the Central
Government deems it necessary so to do, it
894 INDIAN LAW REPORTS ALLAHABAD SERIES
may prescribe such other value, as it deems
fit;

 (ii) complaints against unfair
contracts, where the value of goods or
services paid as consideration does not
exceed ten crore rupees;

 (iii) appeals against the orders of
any District Commission within the State;'

 51.
Appeal
to
National
Commission.- (1) Any person aggrieved by an
order made by the State Commission in
exercise of its powers conferred by sub-clause
(i) or (ii) of clause (a) of sub-section (1) of
section 47 may prefer an appeal against such
order to the National Commission within a
period of thirty days from the date of the order
in such form and manner as may be
prescribed:

 Provided
that
the
National
Commission shall not entertain the appeal
after the expiry of the said period of thirty days
unless it is satisfied that there was sufficient
cause for not filing it within that period:

 Provided further that no appeal by
a person, who is required to pay any amount
in terms of an order of the State Commission,
shall
be
entertained
by
the
National
Commission
unless
the
appellant
has
deposited fifty per cent. of that amount in the
manner as may be prescribed.

 '58.
Jurisdiction
of
National
Commission. (1) Subject to the other
provisions
of
this
Act,
the
National
Commission shall have jurisdiction-

 (a) to entertain

 (i) complaints where the value of
the goods or services paid as consideration
exceeds rupees ten crore: Provided that
where the Central Government deems it
necessary so to do, it may prescribe such
other value, as it deems fit;

 (ii) complaints against unfair
contracts, where the value of goods or
services paid as consideration exceeds ten
crore rupees;

 (iii) appeals against the orders of
any State Commission'

 (iv) appeals against the orders of
the Central Authority; and'

29. A reading of these provisions
makes
it
clear
that
the
appeal
is
maintainable
before
the
National
Commission, for the reason Section 51(1)
provides an appeal before the National
Commission only against the orders passed
under Section 47 (1)(a)(i) and Section 47
(1)(a)(ii). Section 47 (1)(a)(i) and Section
47(1)(a)(ii) deals with the matters where
the orders are passed by the State
Commission in its original jurisdiction and
Section 47(1)(a)(iii) is for appeals against
the order of any District Commission
within the State against which the remedy
of appeal is available under Section 58 (1)
of the Act, 2019. But here, as discussed
above, the order passed by the DCDRC is
without jurisdiction in the light of judgment
in the case of New India Insurance
(supra). Hence as per the law laid down in
the case of Godrej Sara Lee Limited
(supra) which has been passed by placing
reliance upon the judgment in the case of
Whirlpool Corporation versus Registrar of
Trade Marks, Mumbai, 1998, 8 SCC 1, the
writ petition under Article 227 of the
Constitution of India is maintainable. The
judgments relied upon by learned counsel
for
respondents
with
regard
to
the
7 All. Mrs. Anupama Dwivedi & Ors. Vs. Bharti Axa Life Insurance Co. Ltd. & Ors.
895
availablilty of alternative remedy and
maintainability of the writ petition in the
case of Mohamed Ali Vs. V. Jaya and
others passed in Civil Appeal No. 4113 of
2022, judgment and order dated 11.7.2022
and judgment dated 13.10.2022 passed in
the case of Raj Shri Agarwal & Ram Shri
Agarwal and another Vs. Sudheer Mohan
and others (Civil Appeal No. 7266 of
2022) are not applicable in the facts of the
present case as in those cases no such
question was involved as in the present
case.

30. The judgment relied by the
learned counsel for the respondent in the
case of ARN Infrastructure Indian
Limited
Vs.
Hara
Prasad
is
not
applicable, as argued and interpreted by the
learned counsel for the respondents for the
reason that in that case even opportunity of
hearing was closed. The Hon'ble Supreme
Court has held that the opposite party had a
right to do so, even in absence of filing its
written version against the complaint and
the situation is the same in the present case
as well. The opportunity of hearing is not
closed. It will be open for the respondents
to participate in the further proceedings
before the DCDRC. That opportunity is not
closed.

31. As far as submission of learned
counsel for respondents that this Court
under Article 227 of the Constitution of
India cannot look into the merits of the
case, which was replied by learned counsel
for petitioner by placing reliance upon the
judgment of this Court in the Case of
Jodhey and others (supra) where the scope
of Article 227 has been discussed and it has
been held that the powers under Article 227
cannot be exercised unless it has been an
unwarranted assumption of jurisdiction not
possessed by the Courts or a gross abuse of
jurisdiction possessed by them or an
unjustifiable
refusal
to
exercise
a
jurisdiction vested in them by law. The
relevant paragraph no. 15 in the case of
Jodhey and others (supra) is quoted
hereinbelow:-

 '15. The fact that these unlimited
powers are vested in the High Court should
however, make the High Court more
cautious in its exercise. The self-imposed
limits of these powers are established and
laid down by the High Courts themselves. It
seems to me that these powers cannot be
exercised unless there has been an
unwarranted assumption of jurisdiction not
possessed by Courts or a gross abuse of
jurisdiction possessed by them or an
unjustifiable
refusal
to
exercise
a
jurisdiction vested in them by law.