Ashwani Nayyar vs Sunil Anand
2011 Latest Caselaw 4446 Del

*      IN THE HIGH COURT OF DELHI AT NEW DELHI

%                                      Date of Judgment: 12.09.2011


+               CM (M) No. 1415/2007 & CM No.14453/2007


ASHWANI NAYYAR                                         ...........Petitioner
                               Through:     Mr. P.K.Duggal, Advocate.

                       Versus


SUNIL ANAND                                 ..........Respondent
                         Through: None
                         AND
               C.R.P. No.190/2007 & CM No.14293/2007

SUNIL ANAND                                            ...........Petitioner
                               Through:     None

                       Versus


ASHWANI NAYYAR                                         ..........Respondent

                               Through:     Mr. P.K.Duggal, Advocate.


CORAM:
HON'BLE MS. JUSTICE INDERMEET KAUR

    1. Whether the Reporters of local papers may be allowed to
       see the judgment?

    2. To be referred to the Reporter or not?                      Yes

    3. Whether the judgment should be reported in the Digest?
                                                         Yes


CM (M) No. 1415/2007 & C.R.P. No.190/2007                      Page 1 of 5
 INDERMEET KAUR, J. (Oral)

1 The order impugned before this Court is the order dated

18.09.2007 vide which the application filed by the defendant

namely Sunil Anand i.e. his application under Order 12 Rule 6 of

the Code (hereinafter referred to as the 'Code') read with under

Order 7 Rule 11 of the Code as also read with Section 8 of the

Arbitration and Conciliation Act had been dismissed; this was qua

the defendant. The plaintiff had also filed an application under

Order 8 Rule 10 of the Code seeking a judgment forthwith on the

ground that the defendant inspite of opportunity having been

granted to him had not filed his written statement within the

stipulated period; judgment should be pronounced forthwith. The

impugned order had dismissed both the applications i.e.

application filed by the defendant as also the application of the

plaintiff.

2 The plaintiff is Ashwani Nayyar; he has filed the present suit

for a declaration seeking a decree of declaration to the effect that

the dissolution deed dissolving the partnership between the

plaintiff and the defendant i.e. dissolution deed dated 31.10.1992

be declared null and void as it was obtained by fraud and mis-

representation. This is the gist of the suit filed by the plaintiff. He

is represented today. None has appeared for the defendant.

3 The grievance of the plaintiff is that he was entitled to

judgment forthwith and the impugned order granting time to the

defendant to file his written statement suffers from an illegality.

Reliance has been placed upon a judgment of the Apex Court

reported in AIR 2007 SC 1574 M/s Aditya Hotels (P) Ltd. Vs.

Bombay Swadesh Stores Ltd. & Others to support his submission

that until and unless an exception is made out, extension of time

should not be granted in filing the written statement; no such case

is made out in the instant case.

4 The impugned order has in para 17 detailed the reasons for

granting permission to the defendant to file his written statement.

The Court has rightly noted that since the application filed by the

defendant under the aforenoted provisions of law i.e. under Order

12 Rule 6 of the Code read with under Order 7 Rule 11 of the

Code as also read with Section 8 of the Arbitration and

Conciliation Act was yet pending and which has been disposed of

only by the impugned order i.e. on 18.09.2007, in view of the

aforenoted facts sufficient cause is made out to grant opportunity

to file written statement as his aforenoted application was yet

pending; it was in these circumstances, opportunity had been

granted to the defendant to file his written statement. Extension

of time was rightly granted keeping in view the aforenoted factual

scenario; it is not a case where the defendant had deliberately,

negligently or in disobedience of the Court not filed his written

statement; as noted supra, it was for the reason that the

aforenoted application filed by him which application under

Section 8 of the Arbitration and Conciliation Act was yet pending

which application has to be filed in the first instance i.e. even

before filing the written statement. The impugned order suffers

from no infirmity on this count.

5 The defendant is also aggrieved by the fact that his

application under Order 12 Rule 6 of the Code read with under

Order 7 Rule 11 of the Code as also Section 8 of the Arbitration

and Conciliation Act has been dismissed. However, none has

appeared for him. The Court has noted the relevant dates.

6 On 17.04.1996, the defendant had sought four weeks time to

file his written statement; he had in fact submitted himself to the

jurisdiction of the Court; his application under Section 8 of the

Arbitration and Conciliation Act was not filed in the first instance;

he had also been granted opportunity to file written statement

which was on his specific request. Record also shows that the

plaintiff has filed the suit on the ground that the dissolution deed

had been obtained by fraud; the documents filed by the plaintiff

however did not make out a case of any unambiguous admission

on his part which would entitle the defendant to seek a rejection

of the plaint; it was not a case where no cause of action was made

out in favour of the plaintiff; provisions of Order 12 Rule 6 of the

Code seeking a judgment on admission were also satisfied as the

documents appended by the plaintiff along with the plaint did not

make out a case of a clear and an unambiguous admission; this

application was thus rightly rejected; this part of the order also

calls for no interference.

7 Both the petitions are disposed of accordingly.

INDERMEET KAUR, J.

SEPTEMBER 12, 2011 a