* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ CS(OS) 2822/2012
Reserved on: 09.01.2015
Date of decision: 15.01.2015
IN THE MATTER OF:
M/S VISIONAIRE INDIA ..... Plaintiff
Through: Mr. Anil K. Aggarwal, Advocate with
Mr. A.B. Singh, Advocate
versus
M/S IBM INDIA PVT LTD ..... Defendant
Through: Mr. C.M. Oberoi, Advocate with
Ms. Surekha Raman, Mr. Anuj Sarma and
Mr. Debarshi Bhuyan, Advocates
CORAM
HON'BLE MS.JUSTICE HIMA KOHLI
HIMA KOHLI, J.
O.A. No.303/2014 (Chamber Appeal by the defendant against the order dated 29.11.2014)
1. The present Chamber Appeal has been filed by the defendant/appellant against an order dated 29.11.2014 passed by the Joint Registrar, dismissing its application for seeking condonation of delay of 59 days in filing the written statement (I.A. 15019/2013) and the application for seeking condonation of delay of 169 days in re-filing I.A. 15019/2013 (I.A. 15020/2013).
CS(OS) 2822/2012 Page 1 of 19
2. Before referring to the arguments advanced by the counsels for the parties, it is considered necessary to refer to the relevant dates for the purposes of examining the extent of delay on the part of the defendant/appellant in filing the written statement and the delay in re- filing the application for condonation of delay and the adequacy of the explanation offered by the defendant.
3. As per the memo of parties, the plaintiff has furnished two addresses of the defendant; the first address is that of its office at New Delhi and the second one is of Bangalore, Karnataka. Summons in the suit were issued on 18.09.2012, returnable on 27.02.2013. The admitted position is that the Delhi office of the defendant had received the summons on 19.11.2012 and the prescribed timeline of 30 days for filing the written statement, if reckoned from 19.11.2012, would have expired on 18.12.2012. However, the written statement came to be filed on 18.02.2013. This was followed by an application filed by the defendant/appellant under Section 151 CPC, praying inter alia for condonation of delay of 59 days in filing the written statement. However, the said application, registered as I.A. 15019/2013, was filed by the defendant after two days, on 20.02.2013. The records reveal CS(OS) 2822/2012 Page 2 of 19 that the said application was returned by the Registry due to some defects and it was re-filed by the defendant's counsel on 25.02.2013.
4. On 27.02.2013, when the case was posted before the learned Joint Registrar, the counsel had entered appearance on behalf of the defendant. On the said date, the Joint Registrar had noted in the order that the written statement of the defendant had been filed beyond the prescribed timeline and it could not be taken on record. He had also recorded the submission of the counsel for the defendant that he had filed an application for seeking condonation of delay, which would be listed in due course. On the said date, learned counsel for the plaintiff had expressed his inability to conduct the admission and denial of documents due to lack of instructions. As a result, the suit was adjourned to 05.09.2013, for completion of pleadings and for admission and denial of documents. Incidentally, I.A. 15019/2013 was not listed thereafter and later on, it transpired that it had remained under objections due to some more defects pointed out by the Registry.
5. A perusal of the aforesaid application reveals that on 27.2.2013, the Registry had raised further objections in respect of I.A. 15019/2013, one of them being that the number of days' delay had CS(OS) 2822/2012 Page 3 of 19 not been specified in the prayer clause. It is the stand of the counsel for the defendant that as an urgent application did not accompany the aforesaid application, it was assumed that it would be listed in due course and the aforesaid objection raised by the Registry at a later stage, came to his notice only on 05.09.2013, the next date fixed before the Joint Registrar when it was noticed that the said application for seeking condonation of delay in filing the written statement was not listed.
6. On 05.09.2013, the Joint Registrar had observed that in ordinary circumstances, the failure on the part of the defendant to pursue its application for condonation of delay would have called for an order closing its right to file the written statement but the plaintiff was found to be equally lacking in diligence for the reason that it had not filed the original documents till the said date and the counsel, who had appeared for the plaintiff was not even aware as to which of the documents were to be put to the other side for purposes of admission and denial. In view of the aforesaid position, last and final opportunity was granted to the plaintiff to file their original documents within four weeks, failing which it was directed that the said documents would be taken on record subject to payment of costs of `5,000/-. It was also CS(OS) 2822/2012 Page 4 of 19 clarified that once the original documents were filed by the plaintiff, the defendant would file the affidavit by way of admission and denial within the next four weeks. With the aforesaid directions, the case was adjourned to 13.02.2014 for concluding the admission and denial of documents.
7. It appears that thereafter, counsel for the defendant had approached the Registry to verify the status of the application for condonation of delay and, on being informed that it was lying under objections, he had taken back the said application for removing the objections. After removing the defects, the application was re-filed on 09.09.2013. Yet again the application was returned by the Registry with another objection, which was also removed and it was re-filed on 10.09.2013. Finally, the said application came to be listed before the Joint Registrar on 18.09.2013, alongwith I.A. 15020/2013, an application filed by the defendant under Section 151 CPC for seeking condonation of delay of 169 days in re-filing I.A. 15019/2013.
8. Notice was issued on the aforesaid applications on 18.09.2013. Though replies to the applications were not filed by the plaintiff, they were opposed by the counsel for the plaintiff on the ground that the defendant/appellant had adopted a very casual approach in defending CS(OS) 2822/2012 Page 5 of 19 the suit and the explanation for the delay of each and every day had not been offered in the application. It was contended that the explanation offered by the defendant for the delay was without any basis and further, that no explanation had been offered for the delay of 169 days in re-filing the application for condonation of delay.
9. After hearing the counsels for the parties, the impugned order dated 29.11.2014 was passed by the learned Joint Registrar whereby both the applications filed by the defendant were dismissed and resultantly, the written statement was directed to be taken off the record. Aggrieved by the aforesaid decision, the defendant/appellant has filed the present appeal.
10. Mr. C.M. Oberoi, learned counsel for the defendant submitted that the delay of 59 days in filing the written statement beyond the period of 30 days as prescribed under Order VIII Rule 1 CPC was unintentional and the circumstances due to which the delay had taken place, had been duly explained in the application but were not taken into consideration by the learned Joint Registrar while passing the impugned order. He further stated that the explanation offered by the defendant for seeking condonation of delay in re-filing I.A. 15019/2013 was also overlooked by the Joint Registrar and a perusal CS(OS) 2822/2012 Page 6 of 19 thereof would reveal that there exists just and sufficient cause for the Court to exercise its discretion in favour of the defendant by condoning the delay. Lastly, it was submitted that though the prescribed timeline of 30 days for filing the written statement had expired on 18.12.2012, the written statement had been filed within the extended timeline of 60 days, which was to have expired on 18.02.2013, the date on which it was actually filed.
11. Learned counsel for the defendant/appellant further stated that the proceeding sheets will bear out the fact that the defendant had not delayed the suit proceedings in any manner and it is on account of the plaintiff's default that the admission and denial of documents could not take place before the Joint Registrar on 27.02.2013 or for that matter, on the next date, i.e., on 05.09.2013. He submitted that the admission and denial of documents was finally concluded on 28.07.2014 and on the said date, I.A. 15019/2013 was listed before the Joint Registrar but due to the absence of the counsel for the defendant for bonafide reasons, the said application was dismissed in default. However, later in the day on the very same date, learned counsel for the defendant had appeared before the Joint Registrar, explained the reasons for her non-appearance and requested for an CS(OS) 2822/2012 Page 7 of 19 opportunity to argue the said application, which was duly acceded to and the said application was restored by the Joint Registrar for arguments.
12. Though an opportunity was granted to the plaintiff/respondent to file a reply to the present chamber appeal, no reply has been filed. However, Mr. Aggarwal, learned counsel for the plaintiff/respondent strongly opposed the present appeal and submitted that the defendant has not offered any justification for interfering in the order dated 29.11.2014. He reiterated the submission made by him before the Joint Registrar to the effect that the defendant/appellant has adopted a very casual approach in defending the present suit and urged that even when the written statement came to be filed by it on the 90th day, the same was not accompanied by an application for condonation of delay, which came to be filed two days thereafter.
13. Learned counsel for the plaintiff highlighted the fact that the defendant/appellant is a very big organization duly equipped with a competent legal department and it ought to have contested the present suit effectively and taken immediate measures to contact the head office at Bangalore for drafting the written statement and filing the same within the prescribed timeline. Instead, the defendant and its CS(OS) 2822/2012 Page 8 of 19 officers chose to adopt a lackadaisical approach, for which the plaintiff cannot be made to suffer.
14. Learned counsel for the plaintiff/respondent further urged that the condonation of delay application does not furnish any satisfactory reason, much less an explanation for each and every day's delay for the Court to exercise its discretion in favour of the defendant/appellant. Moreover, the said application had also remained under objections for a period of 169 days, which by itself was stated to be a sufficient reason to dismiss the same. It was next submitted that I.A. 15020/2013 is also bereft of any reason for seeking condonation of delay of 169 days in re-filing I.A. 15019/2013. In conclusion, it was submitted that both the applications were rightly rejected by the learned Joint Registrar. In support of his submission that the defendant/appellant has not offered adequate reasons for the Court to exercise its discretion in its favour and in those circumstances, the application for condonation of delay of 59 days in filing the written statement and of 169 days in re-filing the condonation of delay application had been rightly rejected, learned counsel had relied on the decision of the Supreme Court in the case of Mohammed Yusuf vs. Faij Mohammad and Ors. reported as (2009) 3 SCC 513.
CS(OS) 2822/2012 Page 9 of 19
15. The Court has perused the averments made in the appeal and examined the court record in the light of arguments advanced by learned counsels for the parties.
16. The law on the scope of the Court exercising its discretion in condoning the delay on the part of the defendant in filing the written statement is no longer res integra. As was held by the Supreme Court in the case of Kailash Vs. Nanku & Ors. reported as AIR 2005 SC 2441, ordinarily, the time schedule prescribed under Order VIII Rule 1 CPC ought to be adhered to and a prayer for extension of time made by a defendant for filing of a written statement should not be granted just as a matter of routine and merely for the asking, more so when the period of 90 days has expired and that extension of time may be allowed by way of an exception, for reasons to be assigned by the defendant and placed on record in writing. Thus extension of time can be allowed under exceptional circumstances, caused by reasons beyond the control of the defendant and where grave injustice would be occasioned if time was not extended.
17. In the present case, a perusal of I.A. 15019/2013, the application filed by the defendant/appellant for seeking condonation of delay of 59 days in filing the written statement reveals that the CS(OS) 2822/2012 Page 10 of 19 explanation offered for the delay is that the summons were served at the Delhi office of the defendant, where only their Research Centre is situated and the same were forwarded to the head office of the defendant situated at Bangalore. On receipt of the said summons, the plaint and the documents, the defendant had contacted their local lawyer. It is averred that as the agreement between the parties was executed at Bangalore and the supplies were made at Delhi and the records of the case were partly maintained in the Delhi office and partly at the head office at Bangalore and further, as the documents in question related to a period of over five years and some of the officers dealing with the matter were no longer in service, it had taken some time for the defendant to gather the documents, identify the concerned officers, who were dealing with the matter and collate the information for furnishing the same to the advocate in Delhi, for preparing the written statement, which was so done in the end of December, 2012. The draft written statement was dispatched by the advocate to the Bangalore office of the defendant in the second week of January, 2013 and after the same was perused and approved by the officers at Bangalore, who were dealing with the matter as also their local lawyer, the same was finalized, signed and dispatched to the CS(OS) 2822/2012 Page 11 of 19 counsel for the defendant at Delhi, in the second week of February, 2013.
18. A perusal of the copy of the written statement filed with the present appeal reveals that the same was verified at Bangalore on 08.02.2013. Learned counsel for the defendant/appellant has stated that he had received the same from Bangalore in the second week of February, 2013 and filed it on 18.02.2013. By that date, the counsel had not received the application for condonation of delay. Subsequently, the said application, supported by the affidavit of the authorized signatory and sworn before the Oath Commission on 16.02.2013, was received by the counsel in Delhi and filed on 20.02.2013. In the above circumstances, the defendant/appellant had sought to explain the delay of 59 days in filing the written statement.
19. When the aforesaid application was filed in the Registry, some deficiencies were pointed out by the Registry, which were removed by the counsel for the defendant and the said application came to be re-filed on 25.02.2013. It appears that the counsel for the defendant had remained under the impression that as all the objections raised by the Registry in the first round had been removed, the application would be listed before the Court/Joint Registrar in due course. But that CS(OS) 2822/2012 Page 12 of 19 did not happen and only when the suit was listed before the Joint Registrar on 27.02.2013, did the counsel for the defendant discover that the condonation of delay application was not in the court file. He had then informed the learned Joint Registrar that he had already filed the condonation of delay application, which would be listed in due course.
20. It is the stand of the counsel for the defendant/appellant that the initial deficiencies pointed out by the Registry did not include an objection as to non-mentioning of the number of days' delay in the prayer clause and later on, when the said application was re-filed on 25.02.2013, an objection to the said effect was raised by the Registry for the first time and resultantly, he had remained unaware of the said position till 05.09.2013, the date that was fixed on 27.02.2013. However, only on 05.09.2013, when the Joint Registrar had observed that the condonation of delay application had not been listed, did the counsel for the defendant take steps to contact the Registry, only to discover that the deficiency had been pointed out later on. The said application was taken back for removing the objections and it was re- filed on 09/10.09.2013. Simultaneously, the defendant took steps to file an application for seeking condonation of delay of 169 days in re- CS(OS) 2822/2012 Page 13 of 19 filing I.A. 15019/2013, explaining inter alia the manner in which the matter had proceeded and the fact that the counsel had remained under the bonafide impression that all the objections raised by the Registry had been removed and the application having been re-filed, would be listed in due course on 05.09.2013.
21. The Court has examined the averments made in both the applications and perused the court records in the light of the submissions made by the counsel for the defendant/appellant and it is of the opinion that the defendant did offer adequate reasons for filing a belated written statement and no malafides can be attributed to it for not filing the same on the appointed date. The submission of the counsel for the plaintiff that the defendant/appellant ought to have supported the condonation of delay application with sufficient evidence to demonstrate as to which of the documents relevant for the preparation of the written statement were in Delhi and which of them were in Bangalore and who were the officers, who were dealing with the matter and had retired from service and who were the ones, who were available for gathering and analyzing the documents for drafting the written statement, would be stretching things too far. CS(OS) 2822/2012 Page 14 of 19
22. The reasons offered by the defendant/appellant for seeking condonation of delay of 59 days beyond the prescribed period of 30 days are found to be just and sufficient and given such reasons, this Court is of the opinion that in the interest of justice, the delay in filing the written statement ought to have been condoned by the learned Joint Registrar.
23. Another reason that has weighed with the Court while allowing the application for condonation of delay in filing the written statement is that the conduct of the plaintiff is also not taintless which is borne out from the order dated 27.02.2013, wherein it was recorded by the Joint Registrar that admission and denial of documents could not be conducted due to lack of instructions on the part of the counsel for the plaintiff. Yet again, telling remarks were made against the plaintiff in the order dated 05.09.2013 when the Joint Registrar had observed that in ordinary circumstances, he would have been inclined to pass an order, closing the right of the defendant to file the written statement, but the plaintiff was found to be equally lacking in diligence as it had not taken any steps to file the original documents till the said date and the counsel, who had appeared on its behalf, was not even aware as to CS(OS) 2822/2012 Page 15 of 19 which of the documents were to be put to the other side for the purposes of conducting admission and denial.
24. Despite the lack of diligence demonstrated on the part of the plaintiff/respondent, permission was granted to it to file the original documents within four weeks with a caveat that if the said documents would be filed beyond the prescribed timeline, then the same would be taken on record subject to payment of costs. It was only thereafter that the plaintiff had taken steps to file the original documents. Therefore, the plaintiff cannot blame the other side for delaying the suit proceedings. Rather, the records reveal that the defendant had taken timely steps to file the affidavit of admission/denial of documents, without seeking any adjournment and the said process stood concluded on 28.07.2014.
25. Coming to the decision in the case of Mohammed Yusuf (supra) cited by learned counsel for the plaintiff, this court is of the opinion that the same cannot be of any assistance to the plaintiff in the given facts. The said judgment refers to the earlier decision of the Supreme Court in the case of Kailash (supra) and two other decisions, namely, Aditya Hotels (P) Limited Vs. Bombay Swadeshi Stores Limited & Ors. . reported as AIR 2007 SC 1574 and R.N. Jadi and Brothers and Ors. CS(OS) 2822/2012 Page 16 of 19 vs. Subhashchandra reported as (2007) 6 SCC 420 and reiterates the well settled position that grant of extension of time beyond 30 days to file the written statement is not automatic and the discretion should be exercised by the courts with caution and for adequate reasons.
26. As per the facts of the aforecited case, the concerned High Court had allowed a petition filed by the respondent/defendant questioning the order passed by the learned ADJ in the civil revision affirming the order of the Civil Judge, whereunder while rejecting the application filed by the appellant/plaintiff under Order VIII Rule 1 CPC, a date was fixed for recording the evidence and simultaneously, the respondent's application for condonation of delay in filing the written statement was rejected. The High Court had allowed the petition of the respondent/defendant therein and directed that his written statement be taken on the record, subject to costs. However, the Supreme Court had set aside the order of the High Court on the ground that no reasons were assigned while setting aside the orders of the trial court and the revisional court.
27. The decision in the case of Mohammed Yusuf (supra) is based on its own facts. What is relevant to note in the said case is that after being served with the summons in the suit on 06.07.2002, the CS(OS) 2822/2012 Page 17 of 19 respondent/defendant therein had taken a period of three years to file the written statement and that too, without an accompanying application for seeking condonation of delay. That is not the situation here. The defendant/appellant herein has filed the written statement within the extended period of 90 days and the application for condonation of delay was filed by it within two days thereafter.
28. In the given facts, when sufficient indulgence was granted to the plaintiff/respondent on two occasions, by extending the time for it to file the original documents, there is no good reason as to why this court ought not to exercise its discretion in favour of the defendant/appellant by condoning the delay in filing the written statement in view of the explanation offered for the delay, which has been found to be just and sufficient.
29. Coming next to the explanation offered by the defendant/ appellant for seeking condonation of delay of 169 days in re-filing I.A. 15019/2013, this Court is of the opinion that the defendant's counsel ought to have been more vigilant in pursuing the said application, knowing very well that adverse orders were likely to be passed if the said application was not on record. To state that it was expected that the said application would have been listed in due course, is not CS(OS) 2822/2012 Page 18 of 19 enough. When the application was filed on 25.02.2013, and it did not get listed for months together, alarm bells should have rung and learned counsel ought to have taken timely steps to verify its status from the Registry, instead of continuing to wait for the next date of hearing to arrive after six months. In such circumstances, the plaintiff/respondent ought to be compensated by mulcting the defendant/appellant with costs for the avoidable delay in getting IA No.15019/2013 listed for appropriate orders.
30. Accordingly, the present chamber appeal is allowed and the order dated 29.11.2014 passed by the Joint Registrar is set aside. The delay of 59 days beyond the prescribed period of 30 days in filing the written statement, as per IA No.15019/2013 and the delay of 169 days in re-filing I.A. 15019/2013, as per IA No.15020/2013 is condoned, subject to the condition that the defendant/appellant shall pay costs of `30,000/- to the plaintiff/respondent through counsel within two weeks from today. It is clarified that non-payment of the costs imposed above within the period fixed shall result in the revival of the impugned order.
(HIMA KOHLI)
JANUARY 15, 2015/rkb JUDGE
CS(OS) 2822/2012 Page 19 of 19