India - Extent Of Applicability Of Code Of Civil Procedure, 1908 To Proceedings Under The Consumer Protection Act, 1986.
Legal News & Analysis - Asia Pacific - India - Dispute Resolution - Regulatory & Compliance
8 May 2020
The Consumer Protection Act, 1986 (read with the rules and regulations framed thereunder) (hereinafter referred to as the “Act”) was enacted with the objective of providing better protecting the interests of consumers. Towards this end, the Act provides for the establishment of consumer councils and other authorities for settlement of consumer disputes and for matters connected therewith. The Act is a composite and complete code in itself, providing for exhaustive substantive and procedural provisions in relation to the redressal of consumer disputes. For speedy redressal of consumer disputes, the Act provides for setting up of quasi-judicial machinery at the District, State and Central Level (“Dispute Redressal Authorities”). These quasi-judicial authorities are creatures of the statute and have wide powers under the Act, to inter alia grant reliefs of a specific nature and to award, wherever appropriate, compensation to consumers.
A wholesome reading of the Act implies that the Code of Civil Procedure, 1908 (“CPC”) is, as such, not applicable to the proceedings under the Act, save and except certain provisions of the CPC, which have been specifically incorporated in the Act. One such provision is Section 13(4) of the Act, which states that the District Forum shall have the same powers as are vested in a Civil Court under CPC, while trying a suit in respect of the matters enumerated in the said section, such as, (i) summoning and enforcing the attendance of defendant and/or witness; (ii) examining the witness on oath; (iii) discovery and production of any document or other material object; (iv) receiving evidence on affidavits; and (v) issuance of commission for the examination of any witness, etc. In this regard, it is pertinent to note that pursuant to Sections 18 and 22 of the Act, the procedure for disposal of complaints by the District Forum is mutatis mutandis applicable to the disposal of complaints by the State and National Commission.
An argument, that the provisions of CPC will not apply (unless specifically incorporated under the Act) to the proceedings under the Act, is further reinforced by Regulation 26 of the Consumer Protection Regulations, 2005, which states that the parties and their counsel should endeavor to avoid the use of provisions of CPC while conducting proceedings before the Dispute Redressal Authorities under the Act.
This begs the question, as to whether other provisions of the CPC, which have not been specifically incorporated in the Act are deemed to have been excluded by the legislature. This piece attempts to answer this question.
The legal maxim expressio unius est exclusio alterius gains some relevance, in this context. The said maxim means that expression of one thing is the exclusion of another. The Indian Courts have, time and again, applied the said maxim to conclusively hold that all provisions of a particular statute, which are not incorporated by reference in another statute, are deemed to have been intentionally excluded by the legislature from the purview of the said statute. The judiciary has also cautioned against the use of this maxim, which has often been referred to as a useful servant, but a dangerous master.
Applying this maxim, the Hon’ble Supreme Court of India has, in the matter of Ethiopian Airlines vs Ganesh Narain Saboo, inter-alia held that: “…… The Consumer Protection Act, 1986 clearly enumerates those provisions of the CPC that are applicable to proceedings before the consumer fora. Such provisions include 13(4), in which the Consumer Protection Act, 1986 vests those powers vested in a civil court under the CPC to the District Forum. However, according to the principle of expressio unius, because the legislature expressly made the aforementioned provisions of the CPC applicable to the consumer proceedings, the legislature is, therefore, deemed to have intentionally excluded all other provisions of the CPC from applying to the said proceedings. This is particularly true since, as explained above, the Consumer Protection Act, 1986, sets forth an exhaustive list of procedures, distinguishable from those required under the CPC, that the consumer redressal fora must follow.
This makes it clear that the provisions of CPC (except to the extent that are incorporated in the Act) are not applicable to the proceedings under the Act. This view of the Hon’ble Supreme Court has been followed by many Courts in India.
Some other notable judgments passed by the Hon’ble Supreme Court, inter alia strictly confining the Dispute Redressal Authorities to the procedure laid down in the Act (without any recourse to the general provisions of the CPC), have been highlighted herein below.
In the matter of Morgan Stanley Mutual Fund v. Kartick Das, the interesting question that came up for consideration before the Hon’ble Supreme Court was whether the Dispute Redressal Authorities have power, under the Act, to grant ad-interim/ interim relief(s), in the absence of an express provision empowering the said authorities to grant the same. Answering the said question in negative, the Hon’ble Supreme Court held that the Act did not envisage granting any interim and/or ad-interim relief and only contemplated a final relief, however, such interim remedies were always provided for under the provisions of CPC.
This reasoning by the Hon’ble Supreme Court would again re-emphasise that Dispute Redressal Authorities are confined to the powers vested by the Act and cannot seek recourse to the general provisions of CPC. The ratio laid down in the said judgment has been referred to and relied upon in subsequent rulings as well. In order to overcome the said lacuna in the powers of the Dispute Redressal Authorities under the Act, the legislature, vide Consumer Protection (Amendment) Act, 2002 (“2002 Amendment Act”) introduced an express provision (i.e. Section 13(3B)) for granting of interim reliefs (which may also include ad-interim reliefs) by the Dispute Redressal Authorities.
In the matter of Rajeev Hitendra Pathak and Ors. v. Achyut Kashinath Karekar and Ors., the Hon’ble Supreme Court dealt with the issue of whether the Dispute Redressal Authorities (specifically being the District Forum or the State Commission) have the power to review and/or recall their own order in the absence of any specific provision conferred upon them by the Act. In this regard, it is pertinent to note that pursuant to the 2002 Amendment Act, the National Commission was given specific powers to review and recall the orders passed by it. Relying upon its previous decision in the matter of Jyotsana Arvind Kumar Shah and Ors. v. Bombay Hospital Trust, and having carefully examined the provisions of the Act, the Hon’ble Supreme Court, while observing that power to review/ recall an order was a substantive power, held that in the absence of an express provision under the Act, the District Forum or the State Commission did not have any power to review or recall their own orders. The said ratio has been referred to and relied upon in subsequent judgments as well.
Apposite to note that the power of review is not an incidental one, but a substantive power, and unless specifically conferred, does not inhere in quasi-judicial bodies, which are constituted and created under the statute. Therefore, the District Forum or the State Commission, which are not vested with all the powers of Civil Court, are inter-alia not entitled to exercise the review jurisdiction as envisaged under section 114 of the CPC.
In another interesting matter (New India Assurance Co. Ltd. v. R. Srinivasan), the Hon’ble Supreme Court was called upon to decide whether the rule of prohibition provided in Order 9 Rule 9(1) of CPC can be extended to proceedings before the Dispute Redressal Authorities under the Act. Rule of prohibition means if a suit is dismissed in default for non-prosecution, a second suit on the same cause of action would not lie. After carefully examining the provisions of the Act, the Hon’ble Supreme Court inter alia held that there is no provision in the Act, which is analogous to Order 9 Rule 9(1) of CPC. The Hon’ble Supreme Court further clarified that, it would be permissible to file a second complaint, explaining why the earlier complaint could not be pursued and was dismissed in default. The said ratio was further affirmed by the Hon’ble Supreme Court in the matter of Indian Machinery Company vs. Ansal Housing and Construction Ltd.
Deviating from the aforesaid norm, in the matter of Sovintorg (India) Ltd. vs. State Bank of India, New Delhi, the Hon’ble Supreme Court while observing that there was no provision under the Act which is in pari materia to Section 34 of the CPC held that the Dispute Redressal Authorities have the power to grant appropriate interest on the compensation amount after considering the facts and circumstances of each case. It was further held that interest may also be awarded in lieu of compensation or damages in appropriate cases on equitable grounds. The rationale behind the Hon’ble Supreme Court decision was that the principle of interest under Section 34 of the CPC is based upon justice, equity and good conscious.
In another case, the National Commission in the matter of Madan Lal Arora Vs. Dharampal Ji, M.D.H. and Ors., while allowing an application for amendment of complaint, observed that the paramount duty of the Dispute Redressal Authorities was to impart justice and if the amendment sought for, would enable the Dispute Redressal Authorities to pinpointedly consider the real dispute between the parties and accordingly render a decision more satisfactorily, then the said amendment ought to be allowed. In this regard, it is pertinent to note that currently, there is no provision under the Act, which provide for the amendment of the complaint after the same has been filed with the Dispute Redressal Authorities.
The Act is dedicated, as its preamble highlights, to provide speedy, inexpensive and simple redressal to consumer disputes. Further, the Act provides for the cases to be tried summarily and with a view to meet this objective, the legislature, very consciously made only certain identified provisions of the CPC applicable to the proceedings under the Act. In fact, where complicated questions of law and facts are involved, Consumer Forum/Commission under the Act may not be a proper forum to dispose of such a case in a summary fashion and such cases ought be tried by the Civil Courts by applying detailed civil procedure. Having established an all-encompassing summary regime under the Act for the protection of consumers, one may validly argue that there is no need to make provisions of the CPC applicable thereto. However, such an argument may have more teeth, if all aspects and nuances that may arise in relation to consumer proceedings, are exhaustively covered under and provided for in the Act, which may not be the case entirely.
Therefore, one can always argue that even though a specific provision of the CPC is not incorporated in the Act, the Dispute Redressal Authorities, being bound by principles of natural justice, equity and good conscience, ought to consider and adopt such established principles of CPC as may be necessary for it to do complete justice.
For further information, please contact:
Aditya Mehta, Partner, Cyril Amarchand Mangaldas
(2011) 8 SCC 539
(1994) 4 SCC 225
Gulzari Lal Agarwal v. Accounts Officer (1996) 10 SCC 590 and Eureka Estates (P) Ltd. vs A.P. State Consumer Disputes AIR 2005 AP 118, 2004
(1999) 4 SCC 325
Samaresh Prasad Chowdhury vs. UCO Bank and Ors. 2019 SCC OnLine SC 1507 and Super Cassettes Industries Ltd. vs. Music Broadcast Pvt. Ltd. (2012) 5 SCC 488
(2000) 3 SCC 242
(27.01.2016 – SC)
(1999) 6 SCC 406
 This section empower the Court to order interest on the principal sum adjudged in the decree for payment of money
2012 (3) CPC 627
Synco Industries vs. State Bank of Bikaner and Jaipur and Ors. (2002) 2 SCC 1, Deccan Enterprises Pvt. Ltd vs. National Insurance Company Ltd. Petition (decided on 01.05.2002 by NCDRC, New Delhi).