Calcutta High Court
Hemant Kanoria & Anr vs Kpmg Assurance & Consulting Services ... on 4 July, 2024
IN THE HIGH COURT AT CALCUTTA
(Ordinary Original Civil Jurisdiction)
ORIGINAL SIDE
Present:
The Hon'ble Justice Krishna Rao
GA No. 2 of 2024
With
GA No. 3 of 2024
With
GA No. 4 of 2024
With
GA No. 5 of 2024
With
GA No. 6 of 2024
With
GA No. 7 of 2024
With
GA No. 8 of 2024
With
GA No. 9 of 2024
With
GA No. 10 of 2024
With
2
GA No. 11 of 2024
With
GA No. 12 of 2024
With
GA No. 13 of 2024
With
GA No. 14 of 2024
With
GA No. 15 of 2024
With
GA No. 16 of 2024
With
GA No. 17 of 2024
With
GA No. 18 of 2024
With
GA No. 19 of 2024
With
GA No. 20 of 2024
With
GA No. 21 of 2024
In
CS 242 of 2023
3
Hemant Kanoria & Anr.
Versus
KPMG Assurance & Consulting Services LLP & Ors.
Mr. Jishnu Chowdhury
Mr. Soumalya Ganguli
Mr. Abhidipto Tarafder
Mr. Shubrojyoti Mookerji
Mr. Naman Chaudhary
... for the plaintiffs/respondents.
Mr. Dhruv Dewan
Mr. Deepanjan Dutta Roy
Mr. Anoop Rawat
Mr. Sourav Panda
Ms. Arushi Chandra
Ms. Sanjana Jha
Mr. R. Sharma
Mr. Rahul Auddy
Mr. Aditya Gupta
... for the defendants/applicants.
Mr. D. Banerjee
Ms. Sayani Roy Chowdhury
... for the Axis Bank.
GA No. 2 of 2024 to GA No. 7 of 2024,
Hearing Concluded On : 19.06.2024
GA No. 8 of 2024 to GA No. 10 of 2024,
4
Hearing Concluded On : 20.06.2024
GA No. 11 of 2024 to GA No. 14 of 2024,
Hearing Concluded On : 26.06.2024
GA No. 15 of 2024 to GA No. 21 of 2024,
Hearing Concluded On : 27.06.2024
Judgment on : 04.07.2024
Krishna Rao, J.:
1. G.A. No. 2 of 2024 filed by defendant no.6 for condoning delay of 96
days in filing written statement. The defendant no.6 received writ of
summons on 18th January, 2024 and the defendant no.6 ought to have
filed the written statement by 17th February, 2024 i.e. within 30 days
from the date of receipt of writ of summons but the defendant no.6
affirmed written statement on 23rd April, 2024 i.e. after the period of 66
days from the date of filing of written statement and the defendant has
taken total 96 days to affirm affidavit of the written statement. The
defendant no.6 has filed the present application for extension of time to
file written statement on 26th April, 2024 i.e. 100th days from the date
of receipt of writ of summons.
2. G.A. No. 3 of 2024 filed by defendant no.9 for condoning delay of 94
days in filing written statement. The defendant no.9 received writ of
summons on 20th January 2024 and the defendant no.9 ought to have
filed the written statement by 19th February, 2024 i.e. within 30 days
from the date of receipt of writ of summons but the defendant no.9
affirmed the written statement on 23rd April, 2024 i.e. after the period
of 64 days from the date of filing of the written statement and the
defendant has taken total 94 days to affirm affidavit of the written
statement. The defendant no.9 has filed the present application for
extension of time to file written statement on 26th April, 2024 i.e. 98th
days from the date of receipt of writ of summons.
3. G.A. No. 4 of 2024 filed by defendant no.12 for condoning delay of 94
days in filing written statement. The defendant no.12 received writ of
summons on 20th January, 2024 and the defendant no.12 ought to
have filed the written statement by 19th February, 2024 i.e. within 30
days from the date of receipt of writ of summons but the defendant
no.12 affirmed the written statement on 23rd April, 2024 i.e. after the
period of 64 days from the date of filing of written statement and the
defendant has taken total 94 days to affirm affidavit of the written
statement. The defendant no.12 has filed the present application for
extension of time to file written statement on 26th April, 2024 i.e. 98th
days from the date of receipt of writ of summons.
4. G.A. No. 5 of 2024 filed by defendant no.8 for condoning delay of 108
days in filing written statement. The defendant no.8 received writ of
summons on 6th February, 2024 and the defendant no.8 ought to have
filed the written statement by 7th March, 2024 i.e. within 30 days from
the date of receipt of writ of summons but the defendant no.8 affirmed
the written statement on 24th May, 2024 i.e. after the period of 78 days
from the date of filing of written statement and the defendant has taken
total 108 days to affirm affidavit of the written statement. The
defendant no.8 has filed the present application for extension of time to
file written statement on 14th June, 2024 i.e. 130th days from the date
of receipt of writ of summons.
5. G.A. No. 6 of 2024 filed by defendant no.10 for condoning delay of 112
days in filing written statement. The defendant no.10 received writ of
summons on 2nd February, 2024 and the defendant no.10 ought to
have filed the written statement by 3rd March, 2024 i.e. within 30 days
from the date of receipt of writ of summons but the defendant no.10
affirmed written statement on 24th May, 2024 i.e. after the period of 82
days from the date of filing of written statement and the defendant has
taken total 112 days to affirm affidavit of the written statement. The
defendant no.10 has filed the present application for extension of time
to file written statement on 14th June, 2024 i.e. 134th days from the
date of receipt of writ of summons.
6. G.A. No. 7 of 2024 filed by defendant no.15 for condoning delay of 108
days in filing written statement. The defendant no.15 received writ of
summons on 6th February, 2024 and the defendant no.15 ought to
have filed the written statement by 7th March, 2024 i.e. within 30 days
from the date of receipt of writ of summons but the defendant no.15
affirmed written statement on 24th May, 2024 i.e. after the period of 78
days from the date of filing of written statement and the defendant has
taken total 108 days to affirm affidavit of the written statement. The
defendant no.6 has filed the present application for extension of time to
file written statement on 14th June, 2024 i.e. 130th days from the date
of receipt of writ of summons.
7. G.A. No. 8 of 2024 filed by defendant no.4 for condoning delay of 113
days in filing written statement. The defendant no.4 received writ of
summons on 1st February, 2024 and the defendant no.4 ought to have
filed the written statement by 2nd March, 2024 i.e. within 30 days from
the date of receipt of writ of summons but the defendant no.4 affirmed
written statement on 24th May, 2024 i.e. after the period of 83 days
from the date of filing of written statement and the defendant has taken
total 113 days to affirm affidavit of the written statement. The
defendant no.4 has filed the present application for extension of time to
file written statement on 18th June, 2024 i.e. 139th days from the date
of receipt of writ of summons.
8. G.A. No. 9 of 2024 filed by defendant no.5 for condoning delay of 120
days in filing written statement. The defendant no.5 received writ of
summons on 25th January, 2024 and the defendant no.5 ought to have
filed the written statement by 24th February, 2024 i.e. within 30 days
from the date of receipt of writ of summons but the defendant no.5
affirmed written statement on 24th May, 2024 i.e. after the period of 90
days from the date of filing of written statement and the defendant has
taken total 120 days to affirm affidavit of the written statement. The
defendant no.5 has filed the present application for extension of time to
file written statement on 18th June, 2024 i.e. 146th days from the date
of receipt of writ of summons.
9. G.A. No. 10 of 2024 filed by defendant no.20 for condoning delay of 125
days in filing written statement. The defendant no.20 received writ of
summons on 20th January, 2024 and the defendant no.10 ought to
have filed the written statement by 19th February, 2024 i.e. within 30
days from the date of receipt of writ of summons but the defendant
no.20 affirmed written statement on 24th May, 2024 i.e. after the period
of 95 days from the date of filing of written statement and the
defendant has taken total 125 days to affirm affidavit of the written
statement. The defendant no.20 has filed the present application for
extension of time to file written statement on 18th June, 2024 i.e. 151st
days from the date of receipt of writ of summons.
10. G.A. No. 11 of 2024 filed by defendant no.3 for condoning delay of 109
days in filing written statement. The defendant no.3 received writ of
summons on 5th February, 2024 and the defendant no.3 ought to have
filed the written statement by 6th March, 2024 i.e. within 30 days from
the date of receipt of writ of summons but the defendant no.3 affirmed
written statement on 24th May, 2024 i.e. after the period of 79 days
from the date of filing of written statement and the defendant has taken
total 109 days to affirm affidavit of the written statement. The
defendant no.3 has filed the present application for extension of time to
file written statement on 21st June, 2024 i.e. 138th days from the date
of receipt of writ of summons.
11. G.A. No. 12 of 2024 filed by defendant no.17 for condoning delay of 120
days in filing written statement. The defendant no.17 received writ of
summons on 25th January, 2024 and the defendant no.17 ought to
have filed the written statement by 24th February, 2024 i.e. within 30
days from the date of receipt of writ of summons but the defendant
no.17 affirmed written statement on 24th May, 2024 i.e. after the period
of 90 days from the date of filing of written statement and the
defendant has taken total 120 days to affirm affidavit of the written
statement. The defendant no.17 has filed the present application for
extension of time to file written statement on 21st June, 2024 i.e. 149th
days from the date of receipt of writ of summons.
12. G.A. No. 13 of 2024 filed by defendant no.18 for condoning delay of 120
days in filing written statement. The defendant no.18 received writ of
summons on 25th January, 2024 and the defendant no.18 ought to
have filed the written statement by 24th February, 2024 i.e. within 30
days from the date of receipt of writ of summons but the defendant
no.18 affirmed written statement on 24th May, 2024 i.e. after the period
of 90 days from the date of filing of written statement and the
defendant has taken total 120 days to affirm affidavit of the written
statement. The defendant no.18 has filed the present application for
extension of time to file written statement on 21st June, 2024 i.e. 149th
days from the date of receipt of writ of summons.
13. G.A. No. 14 of 2024 filed by defendant no.23 for condoning delay of 120
days in filing written statement. The defendant no.23 received writ of
summons on 25th January, 2024 and the defendant no.23 ought to
have filed the written statement by 24th February, 2024 i.e. within 30
days from the date of receipt of writ of summons but the defendant
no.23 affirmed written statement on 24th May, 2024 i.e. after the period
of 90 days from the date of filing of written statement and the
defendant has taken total 120 days to affirm affidavit of the written
statement. The defendant no.23 has filed the present application for
extension of time to file written statement on 21st June, 2024 i.e. 149th
days from the date of receipt of writ of summons.
14. G.A. No. 15 of 2024 filed by defendant no.11 for condoning delay of 98
days in filing written statement. The defendant no.11 received writ of
summons on 16th February, 2024 and the defendant no.11 ought to
have filed the written statement by 17th March, 2024 i.e. within 30 days
from the date of receipt of writ of summons but the defendant no.11
affirmed written statement on 24th May, 2024 i.e. after the period of 68
days from the date of filing of written statement and the defendant has
taken total 98 days to affirm affidavit of the written statement. The
defendant no.11 has filed the present application for extension of time
to file written statement on 24th June, 2024 i.e. 130th days from the
date of receipt of writ of summons.
15. G.A. No. 16 of 2024 filed by defendant no.13 for condoning delay of 109
days in filing written statement. The defendant no.13 received writ of
summons on 5th February, 2024 and the defendant no.13 ought to
have filed the written statement by 6th March, 2024 i.e. within 30 days
from the date of receipt of writ of summons but the defendant no.13
affirmed written statement on 24th May, 2024 i.e. after the period of 79
days from the date of filing of written statement and the defendant has
taken total 109 days to affirm affidavit of the written statement. The
defendant no.13 has filed the present application for extension of time
to file written statement on 24th June, 2024 i.e. 141st days from the
date of receipt of writ of summons.
16. G.A. No. 17 of 2024 filed by defendant no.14 for condoning delay of 108
days in filing written statement. The defendant no.14 received writ of
summons on 6th February, 2024 and the defendant no.14 ought to
have filed the written statement by 7th March, 2024 i.e. within 30 days
from the date of receipt of writ of summons but the defendant no.14
affirmed written statement on 24th May, 2024 i.e. after the period of 78
days from the date of filing of written statement and the defendant has
taken total 108 days to affirm affidavit of the written statement. The
defendant no.14 has filed the present application for extension of time
to file written statement on 24th June, 2024 i.e. 140th days from the
date of receipt of writ of summons.
17. G.A. No. 18 of 2024 filed by defendant no.7 for condoning delay of 88
days in filing written statement. The defendant no.7 received writ of
summons on 26th February, 2024 and the defendant no.7 ought to
have filed the written statement by 27th March, 2024 i.e. within 30 days
from the date of receipt of writ of summons but the defendant no.6
affirmed written statement on 24th May, 2024 i.e. after the period of 58
days from the date of filing of written statement and the defendant has
taken total 88 days to affirm affidavit of the written statement. The
defendant no.7 has filed the present application for extension of time to
file written statement on 25th June, 2024 i.e. 121st days from the date
of receipt of writ of summons.
18. G.A. No. 19 of 2024 filed by defendant no.16 for condoning delay of 125
days in filing written statement. The defendant no.16 received writ of
summons on 20th January, 2024 and the defendant no.16 ought to
have filed the written statement by 19th February, 2024 i.e. within 30
days from the date of receipt of writ of summons but the defendant
no.16 affirmed written statement on 24th May, 2024 i.e. after the period
of 95 days from the date of filing of written statement and the
defendant has taken total 125 days to affirm affidavit of the written
statement. The defendant no.16 has filed the present application for
extension of time to file written statement on 25th June, 2024 i.e. 158th
days from the date of receipt of writ of summons.
19. G.A. No. 20 of 2024 filed by defendant no.19 for condoning delay of 125
days in filing written statement. The defendant no.19 received writ of
summons on 20th January, 2024 and the defendant no.19 ought to
have filed the written statement by 19th February, 2024 i.e. within 30
days from the date of receipt of writ of summons but the defendant
no.19 affirmed written statement on 24th May, 2024 i.e. after the period
of 95 days from the date of filing of written statement and the
defendant has taken total 125 days to affirm affidavit of the written
statement. The defendant no.19 has filed the present application for
extension of time to file written statement on 25th June, 2024 i.e. 158th
days from the date of receipt of writ of summons.
20. G.A. No. 21 of 2024 filed by defendant no.22 for condoning delay of 109
days in filing written statement. The defendant no.22 received writ of
summons on 5th February, 2024 and the defendant no.22 ought to
have filed the written statement by 6th March, 2024 i.e. within 30 days
from the date of receipt of writ of summons but the defendant no.22
affirmed written statement on 24th May, 2024 i.e. after the period of 79
days from the date of filing of written statement and the defendant has
taken total 109 days to affirm affidavit of the written statement. The
defendant no.22 has filed the present application for extension of time
to file written statement on 25th June, 2024 i.e. 142nd days from the
date of receipt of writ of summons.
21. Counsel for the defendants submitted that on receipt of writ of
summons and after perusing the contents and documents of the suit,
the defendants have immediately initiated process for collecting all
relevant documents for responding to the allegations made in the
plaint. He submits that the suit filed by the plaintiffs containing 8
volumes of more than 1100 pages. He submits that the dispute between
plaintiffs and defendants arises out of RBI Master Directions and
classification of accounts of SEFL and SIFL.
22. The defendants say that before receipt of writ of summons, the plaintiff
no.1 filed several writ petitions before this Court challenging the show
cause notices issued by the defendant banks particularly defendant no.
4, 5, 18 and 22 in terms of the RBI Master Directions. The cause of
action of the suit and the writ petitions were same and the defendants
were engaged in the said writ proceedings and the Hon'ble Court by an
order dated 2nd February, 2024 disposed of the said writ proceedings.
The defendants have consumed much time in the writ proceedings.
23. The defendants say that on the same day when the writ petitions were
disposed of, the plaintiffs have filed an application in the present suit
for grant of interim relief being G.A. No. 1 of 2024 and the defendants
were engaged to defend the interlocutory application. The defendants
say that the defendants are private sector banks which have various
divisions and as per the common practice in the banking system any
pleading on behalf of the bank to be filed before any fora requires multi-
level approval from all the concern divisions and officials involved in the
transactions.
24. The defendants say that the defendants were engaged in the successful
implementation of the resolution plan of National Assets
Reconstruction Company Limited for the SIFL and SEFL companies,
which was completed only on 26th February 2024 and thereafter the
defendants were engaged in closing of previous accounts of SIFL and
SEFL and subsequent opening of restructured accounts, in terms of the
resolution plan. The defendants say that the defendants have also been
engaged in the end of the financial year procedures that involved
closing of accounts and other practices that are required to be
completed by March 31, 2024.
25. The defendants say that there is no willful and deliberate delay on the
part of the defendants. The defendants say that the defendants have
affirmed their respective affidavits of the written statements before
120th days and the defendant nos. 6, 9 & 12 have also filed the present
application on or before 120th days and the defendant nos. 3, 4, 5, 7, 8,
10, 11, 13, 14, 15, 16, 17, 18, 1, 20, 22 & 23 have filed the present
application after the period of 120 days.
26. Learned Counsel for the plaintiff submits that the defendants have not
shown any sufficient cause for non-filing of written statement within 30
days from the date of receipt of writ of summons. He submits that
admittedly there is delay in filing of written statement. He submits that
the defendants have pleaded that the defendants have affirmed affidavit
of written statement but merely affirmation of affidavit of written
statement will no way support the case of the defendants for extension
of time to file written statement.
27. He submits that the defendants have admitted that cause of action of
writ petitions filed by the plaintiffs and the present suit are the same
and the defendants have duly contested the writ application, that
presumed that the defendants were having all documents to contest the
writ proceedings but in the present application, the defendants have
made out the case that the defendants were in search of documents
which is not believable.
28. The plaintiffs say that writ petitions were disposed of on 2nd February,
2024 i.e. well within the period of 30 days from the date of receipt of
writ of summons. The plaintiffs further submitted that the injunction
application was also heard on 1st March 2024 but even than the
defendants have not filed written statement.
29. Learned Counsel for the plaintiff relied upon judgment reported in
2007 SCC Online Cal 577 (Jayshree Tea and Industries Ltd -vs-
General Magnets Ltd.) and submitted that filing of written statement
can be rejected in cases where the defendant has not diligent. He
submitted that in the present case, the defendants have pursued the
writ petition as well as interlocutory application but have not chosen to
file written statement.
30. Heard learned Counsel for the respective parties, perused the materials
of record and judgments relied by the plaintiffs. As per the case of the
defendants, the defendants have affirmed affidavits of their respective
written statement within 120 days. This Court finds that the
defendants nos. 6, 9 & 12 have filed the present application on or
before 120th days and defendant nos. 3, 4, 5, 7, 8, 10, 11, 13, 14, 15,
16, 17, 18, 19, 20, 22 & 23 have filed the present application after
120th days.
31. Chapter IX, Rule 2 of the Original Side Rules reads as follows:
"2.Written statements when not to be
filed. - No written statement of a defendant shall
be filed unless an appearance has first been
entered. No written statement or voluntary
statement shall be filed, after the time limited for
filing the same by the writ of summons, or any rule,
or any order, as the case may be, has expired,
except under an order obtained by summons in
Chambers taken out prior to the expiry of such
time."
Order VIII, Rule 1 of the Code of Civil Procedure, 1908, reads as
follows:
"1. Written Statement.--The Defendant
shall, within thirty days from the date of service of
summons on him, present a written statement of
his defence: Provided that where the defendant
fails to file the written statement within the said
period of thirty days, he shall be allowed to file the
same on such other day, as may be specified by
the Court, for reasons to be recorded in writing, but
which shall not be later than ninety days from the
date of service of summons."
Order VIII, Rule 1 of the Code of Civil Procedure, 1908, is amended
by the Calcutta High Court which reads as follows:
"Provided further that the Court can in
exceptional cases extend the time beyond ninety
days from the date of service of summons if the
defendant proves to the satisfaction of the court
that due to unforeseen circumstances he was
prevented from filing the written statement within
the said time.
Provided further that the Court should in no
case extend such time beyond one hundred twenty
days from the service of summons unless it is
proved to the satisfaction of the Court that the
defendant was prevented from filing the written
statement earlier due to the circumstances beyond
his control."
32. Order VIII, Rule 1 after the amendment casts an obligation on the
defendant to file the written statement within 30 days from the date of
service of summons on him and within the extended time falling
within 90 days. The provision does not deal with the power of the
Court and also does not specifically take away the power of the court
to take the written statement on record though filed beyond the time
as provided for. Further, the nature of the provision contained in
Order VIII, Rule 1 is procedural. It is not a part of the substantive law.
Substituted Order VIII, Rule 1 intends to curb the mischief of
unscrupulous defendants adopting dilatory tactics, delaying the
disposal of cases causing inconvenience to the plaintiffs and
petitioners approaching the court for quick relief and also to the
serious inconvenience of the court faced with frequent prayers for
adjournments. The object is to expedite the hearing and not to scuttle
the same. While justice delayed may amount to justice denied, justice
hurried may in some cases amount to justice buried.
33. All the rules of procedure are handmade of justice. The language
employed by the draftsman of processual law may be liberal or
stringent, but the fact remains that the object of prescribing procedure
is to advance the cause of justice. In an adversarial system, no party
should ordinarily be denied the opportunity of participating in the
process of justice dispensation. Unless compelled by express and
specific language of the Statute, the provisions of the CPC or any other
procedural enactment ought not to be construed in a manner which
would leave the court helpless to meet extraordinary situations in the
ends of justice.
34. It is also to be noted that though the power of the Court under the
proviso appended to Rule 1 of Order VIII is circumscribed by the words
"shall not be later than ninety days" but the consequences flowing from
non-extension of time are not specifically provided though they may be
read by necessary implication. Merely, because a provision of law is
couched in a negative language implying mandatory character, the
same is not without exceptions. The courts, when called upon to
interpret the nature of the provision, may, keeping in view the entire
context in which the provision came to be enacted, hold the same to be
directory though worded in the negative form.
35. Challenge to the Constitutional validity of the Amendment Act and
1999 Amendment Act was rejected by this Court in Salem Advocate
Bar Association, Tamil Nadu vs. Union of India: AIR 2003 SC 189.
However, to work out modalities in respect of certain provisions a
Committee was constituted. After receipt of Committee's report, the
matter was considered by a three-Judge Bench in Salem Advocate
Bar Association, Tamil Nadu vs. Union of India: AIR 2005 SC
3353. As regards Order VIII, Rule 1 Committee's report is as follows:
"The question is whether the Court has any
power or jurisdiction to extend the period beyond
90 days. The maximum period of 90 days to file
written statement has been provided but the
consequences on failure to file written statement
within the said period have not been provided for in
Order VIII Rule 1. The point for consideration is
whether the provision providing for maximum
period of ninety days is mandatory and, therefore,
the Court is altogether powerless to extend the time
even in an exceptionally hard case.
It has been common practice for the parties to
take long adjournments for filing written
statements. The legislature with a view to curb this
practice and to avoid unnecessary delay and
adjournments, has provided for the maximum
period within which the written statement is
required to be filed. The mandatory or directory
nature of Order VIII Rule 1 shall have to be
determined by having regard to the object
sought to be achieved by the amendment. It is,
thus, necessary to find out the intention of the
legislature. The consequences which may follow
and whether the same were intended by the
legislature have also to be kept in view."
36. In Raza Buland Sugar Co. Ltd., Rampur vs. The Municipal Board,
Rampur: (1965) 1 SCR 970, a Constitution Bench of this Court held
that the question whether a particular provision is mandatory or
directory cannot be resolved by laying down any general rule and it
would depend upon the facts of each case and for that purpose the
object of the statute in making out the provision is the determining
factor. The purpose for which the provision has been made and its
nature, the intention of the legislature in making the provision, the
serious general inconvenience or injustice to persons resulting from
whether the provision is read one way or the other, the relation of the
particular provision to other provisions dealing with the same subject
and other considerations which may arise on the facts of a particular
case including the language of the provision, have all to be taken into
account in arriving at the conclusion whether a particular provision is
mandatory or directory.
37. In Sangram Singh vs. Election Tribunal Kotah and Anr.: [1955] 2
SCR 1, considering the provisions of the Code dealing with the trial of
the suits, it was opined that:
"Now a code of procedure must be regarded as
such. It is procedure, something designed to
facilitate justice and further its ends: not a Penal
enactment for punishment and penalties; not
a thing designed to trip people up. Too technical
construction of sections that leaves no room for
reasonable elasticity of interpretation should
therefore be guarded against (provided always that
justice is done to both sides) lest the very means
designed for the furtherance of justice be used to
frustrate it.
Next, there must be ever present to the mind the
fact that our laws of procedure are grounded on a
principle of natural justice which requires that men
should not be condemned unheard, that decisions
should not be reached behind their backs, that
proceedings that affect their lives and property
should not continue in their absence and that they
should not be precluded from participating in them.
Of course, there must be exceptions and where
they are clearly defined they must be given effect
to. But taken by and large, and subject to that
proviso, our laws of procedure should be construed,
wherever that is reasonably possible, in the light of
that principle. "
39. In the case of Kailash v. Nanhku reported in (2005) 4 SCC 480, the
Hon'ble Supreme Court held that :
"(iv) The purpose of providing the time schedule for
filing the written statement under Order 8 Rule 1
CPC is to expedite and not to scuttle the hearing.
The provision spells out a disability on the
defendant. It does not impose an embargo on the
power of the court to extend the time. Though the
language of the proviso to Rule 1 Order 8 CPC is
couched in negative form, it does not specify any
penal consequences flowing from the non-
compliance. The provision being in the domain of
the procedural law, it has to be held directory and
not mandatory. The power of the court to extend
time for filing the written statement beyond the
time schedule provided by Order 8 Rule 1 CPC is
not completely taken away.
(v) Though Order 8 Rule 1 CPC is a part of
procedural law and hence directory, keeping in
view the need for expeditious trial of civil causes
which persuaded Parliament to enact the provision
in its present form, it is held that ordinarily the time
schedule contained in the provision is to be
followed as a rule and departure therefrom would
be by way of exception. A prayer for extension of
time made by the defendant shall not be granted
just as a matter of routine and merely for the
asking, more so when the period of 90 days has
expired. Extension of time may be allowed by way
of an exception, for reasons to be assigned by the
defendant and also be placed on record in writing,
howsoever briefly, by the court on its being
satisfied. Extension of time may be allowed if it is
needed to be given for circumstances which are
exceptional, occasioned by reasons beyond the
control of the defendant and grave injustice would
be occasioned if the time was not extended. Costs
may be imposed and affidavit or documents in
support of the grounds pleaded by the defendant
for extension of time may be demanded, depending
on the facts and circumstances of a given case."
40. In the amendment of Order VIII, Rule 1 of the Code of Civil Procedure,
1908 of Calcutta High Court in first proviso it is provided that in
exceptional cases the Court can extend the time beyond 90 days from
the date of service of summons if defendant proves to the satisfaction of
the Court that due to unforeseen circumstances, the defendant was
prevented from filing written statement within said time and in the
second proviso it is provided that the Court should in no case extend
such time beyond one hundred twenty days from receipt of summons
unless it is proved to the satisfaction of the Court that the defendant
was prevented from filing the written statement due to circumstances
beyond his control.
41. In the present case, the defendants have specifically stated that after
receipt of writ of summons has started process for collecting documents
for responding to the allegations made by the plaintiffs in the plaint.
Admittedly, the plaint along with documents contains 8 volumes
consisting of about 1100 pages. During pendency of the suit, the
plaintiffs have also initiated writ proceedings against some of the
defendants and the defendants have contested the said writ
proceedings and immediately after disposal of writ applications, the
plaintiffs have filed interlocutory applications for grant of interim order
and the said proceeding was also duly contested by the defendants.
Though it is the case of the defendants that the defendants have
affirmed their respective affidavits of written statement on or before
120th days from receipt of writ of summons, this Court cannot take
cognizance of the same but it can be presumed that the defendants
were in process of filing the written statement.
42. The facts of the judgment relied by the plaintiff in the case of Jayshree
Tea & Industries Ltd. (Supra), is distinguishable from the present
case as in the said case the defendant has filed an application for
extension of time to file written statement at the time of examination of
the plaintiff's witness but in the present case immediately, the
defendants have filed an application for extension of time.
43. Considering the above facts, this Court finds that the defendants have
sufficiently shown cause for non-filing of the written statement within
30 days but have affirmed the affidavit of the written statement within
120th days and the defendant nos. 6, 9 & 12 have filed the present
application on or before 120 days. The defendant nos. 3, 4, 5, 7, 8, 10,
11, 13, 14, 15, 16, 17, 18, 19, 20, 22 & 23 have filed their respective
applications after the period of 120th days but this Court is of the view
that one opportunity should be given to the defendants to file written
statement subject to cost except the defendant nos. 6, 9 & 12.
44. In view of the above, the defendants are granted one week time to file
written statement after serving the copy of the written statement to the
plaintiffs subject to payment of cost of Rs.5000/- each by the defendant
nos. 3, 4, 5, 7, 8, 10, 11, 13, 14, 15, 16, 17, 18, 19, 20, 22 & 23 to the
State Legal Services Authority.
45. G.A. No 2 of 2024, G.A. No 3 of 2024, G.A. No 4 of 2024, G.A. No 5
of 2024, G.A. No 6 of 2024, G.A. No 7 of 2024, G.A. No 8 of 2024,
G.A. No 9 of 2024, G.A. No 10 of 2024, G.A. No 11 of 2024, G.A. No
12 of 2024, G.A. No 13 of 2024, G.A. No 14 of 2024, G.A. No 15 of
2024, G.A. No 16 of 2024, G.A. No 17 of 2024, G.A. No 18 of 2024,
G.A. No 19 of 2024, G.A. No 20 of 2024 and G.A. No 21 of 2024 are
accordingly disposed of.
(Krishna Rao, J.)
