Diligent Media Corporation Ltd vs Sandy Ltd
2021 Latest Caselaw 6266 Bom

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                     IN THE HIGH COURT OF JUDICATURE AT BOMBAY

                             ORDINARY ORIGINAL CIVIL JURISDICTION

                    INTERIM APPLICATION (L) NO.5323 OF 2020
                                    IN
                  COMMERCIAL SUMMARY SUIT NO.778 OF 2017

M/s. Diligent Media Corporation Ltd.           ...Applicant

IN THE MATTER BETWEEN

M/s. Sandy Ltd.                           ...Plaintiff
        vs.
M/s. Diligent Media Corporation Ltd.      ...Defendant
                                    .....
Dr. Abhinav Chandrachud, a/w. Mr. Ryan Mendes, i/b. Parinam Law
Associates, for the Applicant/Defendant.

Mr. Vishal Sheth, i/b. Bimal Rajasekhar, for the Plaintiff.
                                     ....
                                CORAM : S.C. GUPTE, J.

DATED : 8 APRIL 2021 Oral Order :

. Heard learned Counsel for the parties. By this interim application, filed in a commercial summary suit, the Defendant prays for condonation of delay in filing its written statement and for taking the same on record.

2. The commercial summary suit was filed on 29 September 2017. Writ of summons was issued to the Defendant on 11 November 2017. Upon the Defendant entering its appearance, a summons for judgment was taken out by the Plaintiff. During the pendency of the summons for judgment, the Defendant moved an application under Order 7 Rule 11 of the Code of Civil

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Procedure ("Code") for rejection of the plaint on the ground that the suit was not maintainable, being barred by the law of limitation. That application was moved on 15 March 2018. During the pendency of that application, the summons for judgment was heard and, by an order dated 20 August 2018, unconditional leave was granted to the Defendant to defend the suit. By that order, the Defendant was given four weeks' time to file its written statement. The Defendant did not file its written statement in time and instead chose to tender it in Court on 24 September 2020. By an order passed on that date, the Defendant was granted leave to file a proper application for condonation of delay and taking its written statement on record. The present interim application has been filed in pursuance of that liberty.

3. Mr. Sheth, learned Counsel for the Respondent/Plaintiff, opposes the application on the ground that the ceiling limit of 120 days for filing of a written statement, under the proviso to Order 5 Rule 1 of the Code, read with Order 8 Rule 1 and Order 8 Rule 10, does apply to the present suit, which was filed as a commercial summary suit after the provisions of the Commercial Courts Act came into operation. Learned Counsel submits that the period of 120 days, so far as commercial summary suits filed after the commencement of the Commercial Courts Act are concerned, must be reckoned from the date of leave being granted to the Defendant instead of from the date of service of the writ of summons as in the case of other commercial suits. Learned Counsel submits that if written statement is not filed within the original time provided by the Court or within such extended time upto a period of 120 days from the date of grant of leave, after expiry of 120 days, the Defendant would forfeit its right to file a written statement. Learned Counsel submits that after the date of grant of

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leave to defend, the commercial summary suit is like any other commercial suit and all provisions of the Commercial Courts Act apply to such suit. Learned Counsel relies on an unreported judgment of a learned Single Judge of this Court in the case of Eskay Enterprises vs. Suresh P. Hinduja 1 in support of his submission. Learned Counsel, secondly, submits that, in any event, the Defendant has not made out any case for condonation of delay in filing written statement. Relying on the case of Desh Raj vs. Balkishan (Dead) Through Proposed Legal Representative Ms. Rohini 2, learned Counsel submits that even in a case of unamended Order 8 Rule 1 of the Code, which is treated as a directory provision and not mandatory, no litigant or lawyer has a free hand to file written statement at their own sweet will so as to prolong the lis. Learned Counsel submits that the legislative objective behind the prescription of timelines under CPC ought to be given due weightage so that disputes are resolved in a time-bound manner as observed by the Supreme Court in the case of Desh Raj.

4. Order 37 of the Code provides for a special procedure known as `summary procedure' for filing of suits of a specified nature. The suits provided for in sub-rule (2) of Rule 1 of Order 37 are these special classes of suits, which may be filed as summary suits. Order 37 makes special provisions for institution of such summary suits. Unlike in the case of ordinary suits, or even commercial suits for that matter, where the writ of summons issued by this court requires (under Rule 69 of the Bombay High Court (Original Side) Rules) the defendant to file an appearance and a written statement and serve a copy of such statement on the plaintiff and intimates the defendant of placing of the suit for directions on the board, summoning him to appear before the Judge in Chambers to answer the

1 2005(3) Mh.LJ 620 2 (2020) 2 Supreme Court Cases 708

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claim, in case of summary suits filed in this court the form of writ of summons (Form No.10 read with Rule 69 of the Bombay High Court Original Side Rules) requires the defendant to simply enter appearance in person or through advocate within ten days from the service of the writ of summons. Order 37 provides for the procedure for appearance of the defendant. Rule 3 thereof provides that if the defendant enters an appearance, the plaintiff shall, thereafter, serve on the defendant a summons for judgment (Form No.4 in Appendix B of the Code or Form No.11 as prescribed by the High Court Original Side Rules) returnable not less than ten days from the date of service supported by an affidavit verifying inter alia the cause of action. The defendant has then to apply for leave to defend the suit, which leave may be granted to him unconditionally or upon such terms, as may appear to the Court to be just. One of the conditions of such leave is for filing of a written statement within the time fixed by the court. Rule 7 of Order 37 requires that save as provided in Order 37, the procedure in suits filed as summary suits shall be the same as the procedure in suits instituted in ordinary manner. In other words, the special procedure prescribed under Order 37 for issuance and service of writ of summons, for entering of appearance and for grant of leave, conditional or unconditional, and, thereafter, for filing of written statement by the Defendant is special to Order 37. The procedure applicable to the suits instituted in the ordinary manner does not apply to these suits as far as these special matters provided for under Order 37 are concerned. It is only in other matters, where there is no special provision made under Order 37 that the procedure applicable generally to suits under the Code of Civil Procedure applies. There is, thus, no warrant for applying the provisions of Order 5 Rule 1 or, for that matter, Order 8 Rule 1 or Rule 10, to summary suits filed in this court, even if they be filed as commercial summary suits

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after coming into operation of the Commercial Courts Act.

5. The submission of learned Counsel for the Plaintiff that the proviso to Order 5 Rule 1 should be read with a modification insofar as written statements to be filed in summary suits after grant of leave are concerned, has no merit. Learned Counsel suggests that unlike in the case of ordinary commercial suits, in case of commercial summary suits, the proviso to Order 5 Rule 1 must be read as requiring the defendant to file its written statement "within a stipulated period" as required by the Court "from the date of grant of delay to the Defendant" or by reckoning the extendable period of ninety days as not "from the date of service of summons" but "from the date of grant of leave". That would involve substitution of the whole expression, namely, the words "within thirty days from the date of service of writ of summons on that defendant" and read the proviso in that light. No known principle of interpretation of statutes permits such a course. The Court cannot substitute words in a statute by other words. There is neither principle nor authority for adopting such course.

6. The judgment in Eskay Enterprises (supra) simply observes that upon leave being granted in a summary suit, further procedure for trial of the suit would be the same as in the case of other suits. So far as the procedure for trial is concerned, since such procedure is not prescribed specially under Order 37 of the Code, the ordinary provisions of the Code would certainly apply, but not, as we have noticed above, where special provisions have been made for defending the suit under Order 37 of the Code.

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7. Having, thus, considered the law and answered it in favour of the Applicant/Defendant, namely, that the provisions of Order 5 Rule 1, including the proviso to Rule 1, do not apply to commercial summary suits, we still have to consider whether the Applicant/Defendant has made out a case for condonation of delay in filing its written statement. After all, as rightly submitted by learned Counsel for the Plaintiff, as observed by the Supreme Court in the case of Desh Raj (supra), these are special timelines and though they may be treated as directory, no free hand can be bestowed on any litigant or lawyer to file a written statement at their own sweet will. After all, any delay in filing of written statement has the tendency of prolonging the trial of the suit. In the present case, the Applicant/Defendant was actively prosecuting its application for rejection of plaint under Order 7 Rule 11 of the Code till 26 March 2019, on which date an order came to be passed to the effect that the application would be heard along with the suit. It was on account of the pendency of this application and its active prosecution that the Defendant did not file its written statement. No doubt, as held by the Supreme Court in the case of SCG Contracts India Pvt. Ltd. vs. K.S. Chamankar Infrastructure Pvt. Ltd. 3, the provisions of Order 7 Rule 11 are independent of filing of a written statement and liberty to file such application for rejection under Order 7 Rule 11 cannot be made a ruse for retrieving the lost opportunity to file a written statement, yet, in the present case, the Defendant's claim that due to active prosecution of its application under Order 7 Rule 11, it ended up not filing its written statement in time, appears to be a genuine excuse. It does not appear to be a malafide plea or an attempt to deliberately prolong the trial. In my opinion, it would, therefore, be in the interest of justice to condone the delay and allow the Defendant to file its written statement, though the Defendant may be saddled with costs for causing delay in the 3 2019 SCC OnLine SC 226

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trial of the suit as a result.

8. In the premises, the interim application is allowed by condoning the delay and permitting the Applicant/Defendant to file its written statement within two weeks from today. The Applicant/Defendant shall pay costs of this application quantified at Rs. 1 lakh to the Respondent/Plaintiff. Such costs shall be paid within a period of two weeks from today and shall be condition precedent for taking the written statement on record.

9. The interim application is disposed of accordingly.

( S.C. GUPTE, J. )

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