Delhi High Court
Legend Travels Pvt. Ltd. vs Galileo India Pvt. Ltd. on 9 March, 2011
Author: Valmiki J. Mehta
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ RFA No.27/2011
% 9th March, 2011
LEGEND TRAVELS PVT. LTD. ...... Appellant
Through: Mr. Saurabh Tiwari, Adv.
VERSUS
GALILEO INDIA PVT. LTD. ...... Respondent
Through: None.
CORAM:
HON'BLE MR. JUSTICE VALMIKI J.MEHTA
1. Whether the Reporters of local papers may be
allowed to see the judgment?
2. To be referred to the Reporter or not?
3. Whether the judgment should be reported in the Digest?
VALMIKI J. MEHTA, J (ORAL)
1. The respondent has been served but no one has appeared on its behalf
in spite of the mater having been passed over twice. I have, therefore, heard
learned counsel for the appellant and am proceeding to dispose of the
appeal. The challenge by means of the present regular first appeal under
section 96 of the Code of Civil Procedure, 1908 is to the orders dated
17.3.2010, 18.5.2010 and 19.11.2010 whereby the right of the
appellant/defendant to file the written statement was closed and review
against the said orders was dismissed and a money decree passed in favour
of the respondent/plaintiff, that too without calling upon the
respondent/plaintiff to lead evidence to prove its case.
RFA No.27/2011 Page 1 of 5
2. The facts of the case are that the respondent/plaintiff filed a suit for
recovery against the appellant/defendant on 3.12.2009. The
appellant/defendant was served in the case on 8.1.2010, on which date, a
period of four weeks was given to file the written statement. On the very
next date of hearing, i.e. 17.3.2010, (one of the impugned orders) the trial
court closed the right of the appellant/defendant to file the written statement
as the period of 90 days had expired from the date of service. The
appellant/defendant immediately moved an application on the very next
date seeking permission to file the written statement, however, the said
application was dismissed by order dated 18.5.2010. By this very order, the
suit was also decreed forthwith without calling upon the respondent/plaintiff
to file evidence and prove its case. I may note that the suit was filed for
recovery of money arising from the contractual relationship of appointment
of the appellant/defendant as an agent of the plaintiff company in terms of
an agreement dated 9.12.2005. A reference to the plaint shows that various
disputed facts are stated in the plaint, and which required proof before the
suit could have been decreed. The breach as alleged by the
respondent/plaintiff of the appellant/defendant was with respect to the
appellant/defendant failing to meet the targets as envisaged for marketing
and promotion of the respondent/plaintiff as envisaged under their
agreement. As already stated, the review petition of the
appellant/defendant was also dismissed by the trial court vide order dated
19.11.2010.
RFA No.27/2011 Page 2 of 5
3. A reference to the aforesaid facts shows that the present was not such
a case of a gross and abnormal delay on the part of the appellant/defendant
in filing the written statement. The appellant/defendant was served for
8.1.2010 and on the next date i.e., 17.3.2010, the right to file the written
statement was closed i.e. on the very first day fixed for filing of the written
statement. The provision of Order 8 Rule 1 of the Code of Civil Procedure,
1908 as amended by the amending Acts of 1999 and 2002 has now been
sufficiently expounded by the Supreme Court by holding that the said
provision of Order 8 Rule 1 is directory and not mandatory. The Civil
Procedure Code is a procedural code for the conduct of the suit and the
same has been held to be a handmaid of justice. One of the first judgments
on this aspect holding the provision of Order 8 Rule 1 to be directory was the
case of Kailash Vs. Nankhu 2005 (4) SCC 480. The ratio of the decision
in the case of Kailash (supra) has also thereafter been repeatedly followed
by the Supreme Court in various other judgments including Rani Kusum
(Smt.) Vs. Kanchan Devi (Smt.) and others (2005) 6 SCC 705, Mr.
Shaikh Salim Haji Abdul Khayumsab Vs. Mr. Kumar & Ors. 2006 (1)
SCC 46 and R.N.Jadi & Brothers & Ors. Vs. Subhashchandra 2007 (6)
SCC 420. Of course, the provision of Order 8 Rule 1 is not to be so liberally
interpreted so as to allow gross delays and negligence on the part of the
defendant in filing the written statement. The facts of each case therefore
have to be seen as to whether there is gross delay or negligence so as to
disentitle the defendant for extension of time for filing of the written
RFA No.27/2011 Page 3 of 5
statement. I have already noted that in the present case on the very first
adjourned day fixed for filing of the written statement, the right of the
appellant/defendant to file the written statement was closed. This approach
of the trial court if accepted, would indeed be very harsh upon the appellant
and who would caused grave prejudice/injustice. I am further surprised that
the trial court dismissed the application seeking review of the order dated
17.3.2010 and which was filed as early as the very next date i.e., 18.3.2010.
I am also further constrained to note that even assuming the right of the
appellant/defendant to file the written statement was closed, the present
case was not such a case that the same should have been decreed
straightway without any evidence at all being led on behalf of the appellant.
In fact, by the order dated 17.3.2010, the case was fixed for ex parte
evidence on 5.4.2010 but inexplicably thereafter, the suit was straightway
decreed on 18.5.2010 when the application of the appellant/defendant for
extension of time for filing the written statement was also dismissed. This
order does not even discuss the basic facts of the case of the plaintiff so as
to entitle a grant of a decree. The only discussion, if at all the same can be
said to be a discussion, for grant of the decree is as under:-
"Law provides for filing of written statement within a period of
thirty days from the service of summons. The said period can e
extended for reasons to be recorded in writing but in no case
after the expiry of 90 days from the date of service of summons.
Extension of the period of 90 das can be allowed by way of
exception for reasons to be assigned by the defendant. Reasons
have to be exceptional and must satisfy the Court. Defendant
has to satisfy that the delay in filing the written statement took
place due to the reasons beyond his control. I place reliance on
RFA No.27/2011 Page 4 of 5
the case of Anil Kushabrao Phutane Vs. Madhukar
Kushabrao Phutane AIR 2006 Bom 1 and the case of Atul
Goel Vs. Raghubir decided by the Hon'ble High Court of Delhi
on 14.3.2008 in IA No.8015/2006 in CS(OS) No.138/2006.
Application of the defendant for extension f time for filing of
written statement beyond 90 days from the date of service of
summons is hence devoid of merits. The same is hence
dismissed.
Plaintiff has claimed interest @ 18% per annum from the date of
agreement i.e. 9.12.2005. Admittedly, no rate of interest was
agreed upon between the parties. The said rate is on the higher
side. Keeping in view the bank rates of interest prevailing in the
year 2005 when the agreement was entered into, I am of the
view that the plaintiff is entitled to the recovery of an amount of
Rs.15 lakhs along with interest @ 8% per annum w.e.f.9.12.2005
till the date of its realization. Decree sheet be drawn
accordingly. File be sent to records."
4. In view of the above, I set aside the impugned orders dated 17.3.2010,
18.5.2010 and 19.11.2010. The decree passed in favour of the
respondent/plaintiff and against the appellant/defendant vide order dated
18.5.2010 is also set aside. The appellant/defendant is allowed to file the
written statement, and the written statement already filed by the
appellant/defendant along with the application for review is taken on record.
Parties to appear before the trial court on 6th April, 2011 for further
proceedings in the case. Parties are left to bear their own costs. Trial court
record be sent back.
MARCH 09, 2011 VALMIKI J. MEHTA, J.
ib
