ORDER

1.      The present Appeal has been filed against the order dated 31.05.2018 on its Misc Application No. 1040 of 2017 & 1041 of 2017, of the Appellant i.e. OP No.1  before the State Commission ( hereinafter referred to as BMW India Pvt. Ltd.)  which was dismissed by the State Commission on the ground that it did not have the authority under the Consumer Protection Act to recall / set aside its earlier order.

2.      In the present Appeal, it is submitted that BMW India Pvt. Ltd. could  not appear before the State Commission after service of notice on the date of hearing i.e. 06.12.2016 and could not file its written version.  It filed its written version on 16.01.2017 which was taken on record. 

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However, since BMW India Pvt. Ltd.was proceeded ex parte on 06.12.2016, an application for recall of the order dated 06.12.2016 and to take on record the written version was filed.  It is submitted that the prayer could not be granted by the State Commission due to the fact that it did not have the authority.  It is submitted that BMW India Pvt. Ltd. could not appear due to the reason that local counsel was unwell and, therefore, by the next date, written version was filed al-though it was filed beyond the period of 45 days.  It is submitted that State Commission under the Act at that time before the passing of the order of the Hon’ble Supreme Court in the case of New India Assurance Co. Ld. Vs. Hilli Multipurpose Cold Storage ( P) Ltd. (2020) 5 SCC 757 had the jurisdiction and authority to condone the delay in filing the written statement and it is submitted that said order of the Hon’ble Supreme Court is prospective in nature i.e. effective w.e.f. 04.03.2020 and, therefore, it is prayed that order dated 06.12.2016 be recalled and delay in filing the written version be condoned and written version be ordered to be taken on record.

3.      Counsel appearing on behalf of respondent no.1 agrees to the fact that order of the Hon’ble Supreme Court in Hilli Multipurpose Cold Storage ( P ) Ltd. ( supra) is prospective in nature and is effective w.e.f.

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04.03.2020 and till that time, under the interim order of the Hon’ble Supreme Court in the case supra, the Commission had the authority and jurisdiction to condone the delay in filing written version. Counsel for the complainant has also filed order of the Hon’ble Supreme Court in the case of Diamond Exports and Anr. Vs. United India Ins.Co. Ltd. & Ors. 1 (2202) SLT 156, wherein the Hon’ble Supreme Court has stated that element of discretion which had been exercised by the Commission before the passing of the order in the case of Hilli Multipurpose Cold Storage ( P ) Ltd should not be disturbed. 

4.      I have heard the arguments and given thoughtful consideration to the rival contentions of the parties.  For the reasons given in the application for setting aside the ex parte order and in the interest of justice and in view of the fact that on the very next date BMW India Pvt. Ltd. had filed its written version, the ex parte order dated 06.12.2016 is hereby set aside on payment of Rs.10,000/-

5.      In the present Appeal, counsel for BMW India Pvt. Ltd also seeks condonation of delay of about 40 days in filing written version.  It is submitted that  complaint was admitted vide order dated 21.10.2016 of the State Commission and, therefore, period of limitation for filing written version arises from that date.

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6.      Counsel for the complainant submits that entire record clearly establishes the contentions of the Appellant. 

7.      In view of the findings of the Hon’ble Supreme Court in Diamond Exports ( supra ), this Commission has authority to condone the delay if the delay had happened before the passing of the judgment of the Hon’ble Supreme Court in the case of   Hilli  Multipurpose  Cold  Storage ( P ) Ltd.   Since on the very first date of its appearance i.e. 16.01.2017, the written version had been filed, delay of 40 days is hereby condoned on payment of cost of Rs.25,000/-. Wri