IMPORTANT POINTS
(1) Reasonable Opportunity – The parties are entitled to a reasonable opportunity to address oral arguments on merits or file their written arguments in accordance with law and the appellant is therefore not prejudiced at all by the impugned order.
(2) Written version – The non-filing of the written version does not preclude the appellants from addressing arguments on merits or file written arguments as already permitted by the State Commission.
(3) Pleadings – The complainants have to prove the facts pleaded by them in the complaint which the Commission has to assess and pass orders accordingly.

ORDER

IA/8847/2024

Heard learned counsel for the appellants and the learned counsel for the respondents/ caveators. The delay in the filing of the appeal has been explained and the same is sufficient. The delay is condoned. The application is allowed and the appeal shall be treated to be within time.

Appeal

2. Since this appeal raises a very small issue pertaining to the rejection of an application filed by the appellants in a bunch of complaints filed before the State Consumer Disputes Redressal Commission, Maharashtra, Mumbai, learned counsel for the parties have advanced their submissions at the admission stage itself and therefore the appeal is being disposed of finally.

3. The order impugned in this appeal dated 24.04.2024 rejects the application moved by the appellants on 23.04.2024, which is filed as Annexure A-5 and is extracted herein under:

“Application to File Affidavit in Lieu of Examination in Chief on behalf of Opposite Party Nos.1 and 2 Abovenamed:-

I, Ketan Shinde, an Adult of Mumbai Indian Inhabitant, an Authorized Signatory of Opposite Party No.1 and one of the Directors of Opposite Party No.2 abovenamed, having office at Omkar House Off. Eastern Express Highway, Opp. Sion - Chunnabhatti Signal, Mumbai - 400 022, do hereby state on solemn affirmation as under:-

I say that I am well conversant with the facts and circumstances leading to the present case and therefore, I seek to file this application to

3. By an Order dated 25th November 2022 wherein it is mentioned in Para 10 of the said order, that as per the Roznama dated 4th October 2022 the Opposite Parties were not allowed to file the Written Statement. The Opposite Parties submit that this particular Application is not being filed in any manner to cover up any lacuna or bring about any new case, it is only being file to bring the facts to the attention of the court which is evident from the pleadings in the Complaint as well as from the documents which are available in the public domain and which would even otherwise be available to this particular Opposite Parties to confront the witness with. The Complainant’s witness is not available for cross-examination in light of the practice followed by this Tribunal. In light of that, there is no other manner in which the said witness can be confronted with the counter documents and therefore, the filing of this Affidavit in lieu of Examination in Chief becomes essential. It is most humbly submitted that the Hon’ble Apex Court as well as various High Courts have from time to time held that a party whose opportunity to file Written Statement has been foreclosed does not necessarily lose his powers to file an Affidavit in Lieu of Examination in Chief or to argue the case on the basis of the documents which are already on record.

Verification

1, Ketan Shinde, the Authorized Signatory of Opposite Party No.1 and one of the Directors of Opposite Party No.2 abovenamed, having office at Omkar House, Off Eastern Express Highway, Opp. Sion - Chunnabhatti signal, Mumbai - 400 022, do hereby affirm that whatever stated in the foregoing paragraphs of the Affidavit are true and correct from the best of my knowledge, personal belief, information gathered and records maintained.”

The same has been disallowed by the State Commission by the following order:—

“Advocate Sulaiman Bhimani a/w Sharon Fernandes present for the complainant. Advocate Kinjal Upadhyay i./b Advocate Jayesh Vyas is present for the opponent 1 & 2. None present for opponent No.3. Advocate for opponent Nos. 1 & 2 (no written version) filed an application to file affidavit of evidence on record. Advocate for the complainant has strong objection on the same. Perused record and proceeding. It reveals that no written version order is passed on 04/10/2022 against opponent Nos. 1 and 2. Advocate for the opponent Nos.1 and 2 seeks time to file citation in support of the application to which Advocate for the complainant has strong objection and submitted th