Punjab-Haryana High Court
M/S Shivalik Silica Through Its Partner ... vs Anjali Singhal on 4 April, 2024
Author: Vikas Suri
Bench: Vikas Suri
Neutral Citation No:=2024:PHHC:047023
2024:PHHC: 047023
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
127 CR-1673-2024 (O&M)
Date of decision: 04.04.2024
M/s Shivalik Silica through its partner and others
...Petitioners
Versus
Anjali Singhal
...Respondent
CORAM: HON'BLE MR. JUSTICE VIKAS SURI
Present: Mr. Manoj Kumar Sood, Advocate for the petitioners.
*****
VIKAS SURI, J.
1. This is a civil revision petition under Article 227 of the Constitution of India filed by the petitioner-defendants for setting aside order dated 14.11.2023 (Annexure P-6), passed by learned Civil Judge (Jr. Divn.) Faridabad, whereby their defence has been struck off by Court order, since they had not filed their written statement within a period of 90 days.
2. The respondent-plaintiff has filed the suit for recovery of Rs.15,96,501/- along with interest @ 12% p.a. It is pleaded in the plaint that the defendants were having very good family relations with the plaintiff since many years and husband of the plaintiff is also having business relations with petitioner Nos.2 and 3 for the last 10-12 years. The aforesaid defendants had requested for financial help as they were in need of money for expansion of their business. The respondent-plaintiff, thus, issued a cheque in the sum of Rs.1,25,000/- in favour of the 1 of 7 ::: Downloaded on - 08-04-2024 23:28:14 ::: Neutral Citation No:=2024:PHHC:047023 CR-1673-2024 -2- 2024:PHHC: 047023 petitioner No.1 firm, which was credited in its account on 31.07.2012. The said loan bears an interest @ 12% p.a. The petitioner-defendants during the financial year 2014-15 returned an amount of Rs.40,000/- on 07.07.2014 and thus, as on 31.03.2018, an amount of Rs.14,32,354/- was due and payable by the petitioner-defendants. As on 31.03.2019, an amount of Rs.16,04,248/- was due and payable by the petitioner- defendants after adjusting the amount credited towards tax deducted at source (TDS) on the interest accrued during the respective financial year commencing from 01.04.2013 upto 31.03.2019, as tabulated in para 4 of the plaint.
3. Upon notice having been issued to the petitioner-defendants and taking note of the postal receipt along with tracking report as per which notice was shown to be delivered to the petitioner-defendants, they were proceeded against ex parte vide order dated 10.08.2022 (Annexure P-3). On an application having been made for setting aside the ex parte order by the petitioners, which was allowed vide order dated 20.07.2023 (Annexure P-4), the proceedings were adjourned to 17.10.2023 for filing written statement. On the adjourned date, further time was sought for filing the written statement and accordingly, the matter was adjourned to 03.11.2023, on which date, considering the resolution passed by the District Bar Association, Faridabad resolving to abstain from work for the said day, the proceedings were further adjourned to 14.11.2023. The trial Court vide order dated 14.11.2023 recorded that since the defendants have not filed the written statement within the mandatory period of 90 days, hence, their defence was 2 of 7 ::: Downloaded on - 08-04-2024 23:28:15 ::: Neutral Citation No:=2024:PHHC:047023 CR-1673-2024 -3- 2024:PHHC: 047023 ordered to be struck off. The issues were framed on the same date and the proceedings were deferred to 26.02.2024 for evidence of the plaintiff.
4. Learned counsel for the petitioners submits that on 26.02.2024, no plaintiff witness was examined and the case was posted for 29.05.2024 for evidence of the plaintiff at own responsibility.
5. The petitioners have filed the present revision petition aggrieved by the order dated 14.11.2023 (Annexure P-6).
6. I have heard learned counsel for the petitioners and perused the material available on record with his able assistance.
7. In view of the nature of the order being passed, notice is not being issued to the respondent-plaintiff as it would only delay the trial/proceedings and entail additional expense to the said respondent.
8. Learned counsel for the petitioners has made a categoric statement that in case one opportunity is granted subject to being put to terms to compensate the respondent-plaintiff, the written statement would be filed on the very first opportunity, as may be granted by this Court.
9. No doubt, the provisions of Order 8 Rule 1 CPC ordinarily ought to be adhered to, but the trial Court could have permitted one more opportunity to file written statement subject to payment of costs.
10. Even otherwise, provisions contained in Order 8 Rule 1 CPC have been held to be directory in nature by the Apex Court in Salem Bar Association vs. Union of India, (2005) 6 SCC 344. It is well settled that the Court should not be too harsh to strike off the defence of 3 of 7 ::: Downloaded on - 08-04-2024 23:28:15 ::: Neutral Citation No:=2024:PHHC:047023 CR-1673-2024 -4- 2024:PHHC: 047023 the defendants at very early stage. The rules of procedure are the handmaids of justice and cannot be allowed to defeat substantial justice between the parties.
11. A three judge Bench of the Hon'ble Supreme Court of India in Desh Raj vs. Balkishan (Dead) through Proposed Legal Representative Ms. Rohini, (2020) 2 SCC 708, had also examined the timeline for filing of written statement and held that in a non-commercial dispute matter, the unamended provisions of Order 8 Rule 1 CPC continues to be directory and does not do away with the inherent discretion of the Courts to condone delay. The relevant portion of the said judgment reads as thus:-
Analysis and conclusion
10. At the outset, it must be noted that the Commercial Courts Act, 2015 through Section 16 has amended the CPC in its application to commercial disputes to provide as follows:
"16. Amendments to the Code of Civil Procedure, 1908 in its application to commercial disputes.--(1) The provisions of the Code of Civil Procedure, 1908 (5 of 1908) shall, in their application to any suit in respect of a commercial dispute of a specified value, stand amended in the manner as specified in the Schedule.
(2) The Commercial Division and Commercial Court shall follow the provisions of the Code of Civil Procedure, 1908 (5 of 1908), as amended by this Act, in the trial of a suit in respect of a commercial dispute of a specified value.
(3) Where any provision of any rule of the jurisdictional High Court or any amendment to the Code 4 of 7 ::: Downloaded on - 08-04-2024 23:28:15 ::: Neutral Citation No:=2024:PHHC:047023 CR-1673-2024 -5- 2024:PHHC: 047023 of Civil Procedure, 1908, by the State Government is in conflict with the provisions of the Code of Civil Procedure, 1908 (5 of 1908), as amended by this Act, the provisions of the Code of Civil Procedure as amended by this Act shall prevail."
11. Hence, it is clear that post coming into force of the aforesaid Act, there are two regimes of civil procedure. Whereas commercial disputes [as defined under Section 2(c) of the Commercial Courts Act, 2015] are governed by CPC as amended by Section 16 of the said Act; all other non-commercial disputes fall within the ambit of the unamended (or original) provisions of CPC.
12. The judgment of Oku Tech [Oku Tech (P) Ltd. v. Sangeet Agarwal, 2016 SCC OnLine Del 6601] relied upon by the learned Single Judge is no doubt good law, as recently upheld by this Court in SCG Contracts (India) (P) Ltd. v. K.S. Chamankar Infrastructure (P) Ltd. [SCG Contracts (India) (P) Ltd. v. K.S. Chamankar Infrastructure (P) Ltd., (2019) 12 SCC 210 : (2020) 1 SCC (Civ) 237] but its ratio concerning the mandatory nature of the timeline prescribed for filing of written statement and the lack of discretion with courts to condone any delay is applicable only to commercial disputes, as the judgment was undoubtedly rendered in the context of a commercial dispute qua the amended Order 8 Rule 1 CPC.
13. As regards the timeline for filing of written statement in a non-commercial dispute, the observations of this Court in a catena of decisions, most recently in Atcom Technologies Ltd. v. Y.A. Chunawala & Co. [Atcom Technologies Ltd. v. Y.A. Chunawala & Co., (2018) 6 SCC 639 : (2018) 3 SCC (Civ) 777] holds the field. The unamended Order 8 Rule 1 CPC continues to be directory and does not do away with the inherent discretion of courts to condone certain delays.
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12. It has also been held in the case of Bharat Kalra vs. Raj Krishan Chhabra, 2022 SCC Online 613, while relying upon the earlier judgment in Kailash vs. Nanko and others, (2005) 4 SCC 480, that the provision of Order 8 Rule 1 CPC is not mandatory and the delay in filing of the written statement could very well be compensated with costs but denying the benefit of filing the written statement is unreasonable.
13. In the present case, the trial Court after noticing that the mandatory period of 90 days for filing the written statement had already expired, struck off the defence of the petitioner-defendants vide impugned order dated 14.11.2023.
14. Perusal of the plaint (Annexure P-1) prima facie shows that the suit is not based on a 'commercial dispute' as defined under Section 2 (c) of the Commercial Courts Act, 2015. Hence, the ratio of Desh Raj's case (supra) would apply on all fours in the present case.
15. In view of the above discussion and law settled by the Apex Court, I am of the considered opinion that the ends of justice would be adequately met if the delay in filing written statement is condoned subject to payment of costs, as the period of 90 days provided under Order 8 Rule 1 CPC is directory and not mandatory, in a non- commercial dispute. It is also well settled that procedural law is always subservient to and is in aid of justice. The rules of procedure are the handmaids of justice. Moreover, no prejudice would be caused to the respondent in case the suit is decided on merits, after affording a proper opportunity to contest the same.
16. Accordingly, the present revision petition is allowed. The 6 of 7 ::: Downloaded on - 08-04-2024 23:28:15 ::: Neutral Citation No:=2024:PHHC:047023 CR-1673-2024 -7- 2024:PHHC: 047023 impugned order dated 14.11.2023 is set aside, subject to payment of Rs.15,000/- as costs, to be paid to the plaintiff-respondent and one opportunity is granted to the petitioner-defendants to file the written statement on or before the next date fixed before the trial Court. It is made clear that failing to file the written statement or to pay costs in terms of this order, the petitioner would not be entitled to any further opportunity for the said purpose and the trial Court would proceed with the matter without this order having any bearing on the trial.
17. As the present revision petition is being disposed in the absence of the respondent-plaintiff, liberty is granted to her to seek recalling of the present order, if valid grounds for the same are made out.
18. The revision petition is allowed in the aforesaid terms.
19. Pending applications, if any, also stand disposed of.
(VIKAS SURI)
April 04, 2024 JUDGE
sumit.k
Whether speaking/reasoned : Yes / No
Whether Reportable : Yes / No
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