Bombay High Court
Federal Brands Ltd Thr Auth. Sig. ... vs Cosmos Premises Pvt. Ltd on 2 August, 2024
18 WP 105 OF 2024.ODT
2024:BHC-GOA:1235
Esha
IN THE HIGH COURT OF BOMBAY AT GOA
WRIT PETITION NO. 105 OF 2024
Federal Brands Ltd., A Company
incorporated under the Companies Act,
1956, with its registered office at Shri
Guru Gobindsing Indlpremises Co-op.
Soc., Western Express Highway,
Goregaon, Mumbai, Maharashtra - 400
063. Through its Authorized Signatory,
Rajashekar T. ... PETITIONER
Versus
Cosmos Premises Pvt. Ltd., A Company
incorporated under the Companies Act,
1956, with its registered office at 183/2,
Francisco Pereira Waddi, Utorda,
Salcete, Goa - 403 713. ... RESPONDENT
****
Mr. S.N. Joshi with Ms. Swapna Joshi, Advocates for the
Petitioner.
Ms. Maria Viegas, Advocate for the Respondent.
CORAM: BHARAT P. DESHPANDE, J.
DATED: 2nd AUGUST 2024
ORAL JUDGMENT:
1. Heard Mr. Joshi for the Petitioner and Ms. Viegas for the
Respondent.
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2. Rule. Rule made returnable forthwith.
3. Heard finally with consent of parties.
4. The challenge in the present Petition is to the order passed
by the learned Trial Court dated 11.12.2023, thereby rejecting the
Application for condonation of delay in filing the written
statement.
5. Mr. Joshi appearing for the Petitioner would submit that the
Petitioner is the Defendant who received a summons from the
Trial Court in a suit filed by the Respondent/Plaintiff on
18.08.2022. The Defendant appeared before the Trial Court and
sought an extension of time to file a written statement, which was
granted. He submits that thereafter, the Petitioner filed an
Application under Order VII Rule 11 of CPC on 05.11.2022. Such
Application was heard and decided by the Trial Court on
09.02.2023. Upon rejection of such Application, the Petitioner
filed an Application for condonation of delay on 03.03.2023
together with a written statement to be taken on record. An
additional affidavit in support of the Application for condonation
of delay was filed on 27.06.2023. Vide impugned order dated
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11.12.2023, the learned Trial Court rejected the delay Application,
which is challenged in the present Petition.
6. Mr. Joshi appearing for the Petitioner would submit that the
provisions of Order VIII Rule 1 of CPC are directory and not
mandatory and therefore, the time limit mentioned therein could
be condoned. In this respect, he placed reliance on the decision of
the Apex Court in the case of Raj Process Equipments and
Systems Pvt. Ltd. & Others Vs. Honest Derivatives Pvt.
Ltd., 2022 SCC OnLine SC 1877, apart from the judgments
referred to and considered by the Trial Court in the impugned
order.
7. Mr. Joshi would submit that the Petitioner/Defendant has a
strong case in his defence and if opportunity is denied for filing
the written statement, serious prejudice would be caused. He
submits that the Petitioner is ready to deposit costs for
condonation of delay and no prejudice will be caused to the
Plaintiff/Respondent.
8. The learned Counsel for the Respondent while justifying the
orders passed by the Trial Court would submit that the
observations in the impugned order clearly go to show that the
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reasons for condonation of delay are not at all justifiable and that
such delay was deliberate.
9. It is clear from the chronology of dates which have been
pointed out by Mr. Joshi that summons were served on Defendant
on 18.08.2022 whereas the period of 30 days to file a written
statement expired on 17.09.2022. The Petitioner/Defendant also
applied for an extension of time to file the written statement which
was initially granted. However, instead of filing the written
statement, though time was extended, an Application under Order
VII Rule 11 of CPC for rejection of the plaint was filed. It is
necessary to note here that along with such an Application for
rejection of the plaint, the Petitioner/Defendant could have easily
filed the written statement. However, the reasons disclosed in the
Application for condonation of delay show that the in-house
Advocate advised the Petitioner/Defendant that once an
Application under Order VII Rule 11 of CPC is filed, there is no
need to file a written statement till such Application is decided.
The Petitioner was also advised that there would not be any need
to file any written statement since the plaint would be rejected.
This is the only reason which is disclosed in the Application for
condonation of delay in filing the written statement.
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10. The calculations shown for delay in the Application for
condonation of delay in filing the written statement are also not
correct. The reasons disclosed in paragraphs 2 to 6 of the delay
Application read thus:
"2. The Defendant filed Application for
Rejection of Plaint on 03/11/2022. The
same has been rejected by this Hon'ble
Court by an Order dated 9th February,
2023. The Defendant would consider
challenging the said Order before the
appropriate Court of law.
3. In the meantime, the Defendant wishes to
file the Written Statement in defence of the
suit.
4. In view of Order VII Rule 11 Application,
the Defendant is entitled for the exclusion
of the period from 03/11/2022 (the date
the Application under Order VII Rule 11
was filed) to 09/02/2023 (the date
wherein the said Application was
rejected).
5. In case, the Application under Order VII
Rule 11 was allowed by this Hon'ble Court,
the Defendant was not required to file any
Written Statement. The necessity to file the
Written Statement has arisen only as the
Application has been rejected by this
Hon'ble Court.
6. As the Defendant has served on
18/08/2022, it was entitled to file the
Written Statement within 90 days, I.e. on
or before 16/11/2022. Considering the
exclusion of 110 Days (pendency of
Application under Order VII Rule 11),
there is still delay of 14 days in filing the
Written Statement."
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11. The reasons disclosed in the above Application for
condonation of delay would clearly go to show that the Defendant
claimed that once an Application is filed under Order VII Rule 11
of CPC, the period for filing the written statement stands excluded,
till the Application is decided.
12. There is no such provision in the CPC or any
pronouncement of the Court for the purpose of exclusion of such
period for filing the written statement. The provisions of Order
VIII Rule 1 of CPC would show that the written statement is
required to be filed within a period of 30 days, which is from the
date of receipt of the suit summons. The proviso added by the
amendment Act would go to show that the said period could be
extended upto 90 days from the receipt of the summons for
reasons to be recorded in writing. Thus, it is clear that the written
statement is required to be filed within 30 days from the date of
receipt of the suit summons, however, such period of 30 days
could be extended upto 90 days for the reasons to be recorded in
writing by the Court.
13. In the present matter, admittedly, the written statement was
not filed within 30 days. Only an Application was filed for
extending the said period which was allowed. On the next date, no
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written statement was presented to the Court. No Application for
further extension of time to file the written statement was filed
before the Court. Thus, there was no reason for the Court to
extend such time to be recorded in writing.
14. It is no doubt true that the provisions of Order VII Rule 1 of
CPC are not mandatory but directory, however, such discretion is
required to be exercised by the Court on disclosing sufficient
reasons for an extension of time.
15. The CPC nowhere provides that on filing a Miscellaneous
Application, the time to file the written statement would be
extended or excluded. Similarly, the Defendant claimed in the
Application for condonation of delay that the period during which
the Application under Order VII Rule 11 was pending, is entitled to
be excluded and thus, the delay according to the Petitioner/
Defendant was calculated as only 14 days. Such calculation is
completely on wrong advise or presumption. The written
statement was filed after a period of 160 days along with the
Application for delay wherein there are no sufficient reasons
disclosed to exercise the discretion of the Court by condoning the
delay. In the case of Raj Process Equipments and Systems
Pvt. Ltd. (supra), the Apex Court has observed that the
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provisions of Order VIII Rule 1 of CPC are directory and not
mandatory, however, there is no discussion with regard to the fact
as to whether there were any sufficient reasons disclosed to
condone the delay in filing the written statement.
16. In the present Petition, this Court while exercising
supervisory jurisdiction under Article 227 of the Constitution is
required first of all to ascertain whether the impugned order
suffers from any illegality or otherwise. If such an aspect is not
examined, this Court will not be in a position to upset the
reasoned order only on the ground that the Petitioner/Defendant
will lose his opportunity to file a written statement and is entitled
to pay costs. Ignorance of law or wrong advise is not sufficient
ground, when no affidavit of in-house Advocate is placed on
record to justify such reason. Blaming an Advocate is not proper
when such Advocate is having no opportunity to defend or to
explain.
17. The impugned order dated 11.12.2023 is well-reasoned
order after taking into consideration the relevant decisions with
regard to Order VIII Rule 1 of CPC. The learned Trial Court has
specifically observed that the grounds mentioned for condonation
of delay are not at all sufficient enough to use the discretionary
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power. No fault would be attributed to such findings. Accordingly,
there is no substance in the present Petition and no reason to
disturb the findings of the learned Trial Court.
18. The Petition stands dismissed. No costs. Rule stands
discharged.
BHARAT P. DESHPANDE, J.
Signed by: ESHA SAINATH
VAIGANKAR
Designation: Personal Assistant
nd
Date: 03/08/2024 11:04:38 2 August 2024
