Nunhems India Pvt. Ltd. vs Prabhakar Hybrid Seeds
2012 Latest Caselaw 1402 Del

$~10
*    IN THE HIGH COURT OF DELHI AT NEW DELHI

+       IA No. 18821/2011 & IA No.854/2012 in CS (OS) 272/2011

NUNHEMS INDIA PVTL LTD                ..... Plaintiff
                Through Mr. Ali Naqvi with Mr.
                         A. Singh, Advs.

                       versus


PRABHAKAR HYBRID SEEDS                ..... Defendant
                Through Mr. G.V.R. Choudhary with
                         Mr. A. Chandra Sekhar, Advs.


        CORAM:
        HON'BLE MR. JUSTICE KAILASH GAMBHIR


                       ORDER

% 29.02.2012

1. This common order shall dispose of the application filed by

defendant under order VIII Rules 1 & 10 read with Section 151

CPC seeking extension of time in filing written statement and

the application filed by the plaintiff under Order VIII Rule 10

read with Section 151 CPC seeking pronouncement of judgment

against the defendants.

2. Brief background of the facts relevant for deciding the

present applications are that the plaintiff has filed a suit for

permanent and mandatory injunction seeking to restrain the

defendant from producing, selling and offering to sell seeds

which have identical DNA fingerprints to LAKSHMI (NP-5005) of

the plaintiff. The plaintiff has also claimed damages to the tune

of Rs. 2,20,00,800/- along with further unascertained damages

towards the loss suffered by the plaintiff on account of illegal

acts of the defendant. Vide orders dated 7.2.2011, this Court

directed summons in the suit and notice on the said application,

returnable on 27th April, 2011. Nobody had appeared for the

defendants on 27th April, 2011 although as per the service

report, the defendant was served on 14th March, 2011. On 27th

April, 2011 the matter was adjourned for 18th October, 2011 and

since nobody had appeared for the defendant on the said date,

therefore, the Court directed fresh service of the defendants for

the next date. The defendants in the meanwhile, had filed an

application under Order VII Rule 11 CPC on 15 th October, 2011,

for rejection of plaint which was taken up by this Court on 18 th

October, 2011. The plaintiff was directed to file reply to the said

application within a period of four weeks and on filing of the

reply, the defendant was directed to file rejoinder thereto within

a period of two weeks thereafter. In the main suit, counsel for

the defendant made a submission that he would be filing an

appropriate application within a week to seek extension of time

for filing of written statement and will also file the written

statement along with the said application itself. While

adjourning the matter for 10th January, 2012 this Court observed

in the said order that despite being served on 14 th March, 2011

the written statement has not been filed by the defendant so far.

Since the defendant had failed to file any written statement or

move an application under Order VIII Rules 1 & 10 CPC within

the said one week period or later and because of such lapse on

the part of the defendant, the plaintiff had moved an application

under Order VIII Rule 10 CPC, which application of the plaintiff

is under consideration in the present order.

3. The plaintiff has moved the said application under Order

VIII Rule 10 read with Section 151 CPC to seek pronouncement

of judgment against the defendant on the ground that the

defendant has failed to file the written statement within the time

prescribed under Order VIII Rule 1 CPC. As per the plaintiff, the

time frame of 30 days came to an end on 13.4.2011 from the

date of service of the defendant on 14th March, 2011 and even

the additional time of 60 days came to an end on 12.6.2011 and

that despite the expiry of more than 160 days, the defendant did

not file the written statement. Based on these averments, the

plaintiff has claimed judgment and decree in its favour. In reply

to the said application of the plaintiff and in support of the

application filed by the defendant under Order VIII Rule 1 CPC,

the common plea raised by the defendant is that there is no

deliberate or willful negligence on the part of the defendant in

not filing the written statement as the defendant was under the

misconception of law that the issue of jurisdiction will be

decided by the Court at the first instance. It is also the case of

the defendant that although on 18th October, 2011 counsel for

the defendant undertook to file the written statement within a

week, but since the mother of the counsel for the defendant had

fallen seriously ill and eventually died on 13.11.2011, therefore,

counsel for the defendant got entangled and could not attend to

his professional work and as a result thereof, the written

statement could not be filed by the defendant as was undertaken

by him. It is also the case of the defendant that the present suit

involves highly intricate questions of law and, therefore,

extensive research was required to be undertaken on the

technical aspects of the matter and this also contributed to the

delay on the part of the defendant in filing of the written

statement. Counsel for the defendant has also taken a stand that

since the written statement has already been filed by the

defendant, therefore, taking into account the said bona fide

reasons, the delay in filing the written statement be condoned.

4. In support of his arguments, counsel for the plaintiff has

placed reliance on the judgment of the Hon'ble Supreme Court

in the case of R.N. Jadi & Brothers & Ors vs Subhashchandra

(2007) 6 SCC 420 while counsel for the defendant strongly

placed reliance on the judgment of the Apex Court in the case of

Saleem Bhai & Ors. Vs. State of Maharashtra (2003) 1 SCC 557.

5. I have heard learned counsel for the parties on both the

said applications.

6. It is no more res integra that order VIII Rule 1 so far it

prescribes the time period of 30 days and maximum period of 90

days for filing the written statement from the date of the service

of the summons has been held to be directory and not

mandatory. The Apex Court in case of Kailash vs Nanhku &

Ors. (2005) 4 SCC 480 also took a view that by holding the

said provision as directory, the same may not be understood as

nullifying the entire force and impact of the said provision. The

Apex Court also held that the extension beyond the period of 90

days can be only by way of an exception and for reasons

assigned by the defendant and also recorded in writing by the

Court to its satisfaction. The relevant paras of the said judgment

are extracted as below:-

"41. Considering the object and purpose behind enacting Rule 1 of Order VIII in the present form and the context in which the provision is placed, we are of the opinion that the provision has to be construed as directory and not mandatory. In exceptional situations, the court may extend the time for filing the written statement though the period of 30 days and 90 days, referred to in the provision, has expired. However, we may not be misunderstood as nullifying the entire force and impact - the entire life and vigour

- of the provision. The delaying tactics adopted by the defendants in law courts are now proverbial as they do stand to gain by delay. This is more so in election disputes because by delaying the trial of election petition, the successful candidates may succeed in enjoying the substantial part, if not in its entirety, the term for which he was elected even though he may loose the battle at the end. Therefore, the judge trying the case must handle the prayer for adjournment with firmness. The defendant seeking extension of time beyond the limits laid down by the provision may not ordinarily be shown indulgence.

42. Ordinarily, the time schedule prescribed by Order VIII, Rule 1 has to be honoured. The defendant should be vigilant. No sooner the writ of summons is served on him he should take steps for drafting his defence and filing the written statement on the appointed date of hearing without waiting for the arrival of the date appointed in the summons for his appearance in the Court. The extension of time sought for by the defendant from the court whether within 30 days or 90 days, as the case may be, should not be granted just as a matter of routine and merely for asking more so, when the period of 90 days has expired. The extension can be only by way of an exception and for reasons assigned by the defendant and also recorded in writing by the Court to its satisfaction. It must be spelled out that a departure from the time schedule prescribed by Order VIII, Rule 1 of the Code was being allowed to be made because the circumstances were exceptional, occasioned by reasons beyond the control of the defendant and such extension was required in the interest of justice, and grave injustice would be occasioned if the time was not extended.

43. A prayer seeking time beyond 90 days for filing the written statement ought to be made in writing. In its judicial discretion exercised on well-settled parameters, the Court may indeed put the defendants on terms including imposition of compensatory costs and may also insist on affidavit, medical certificate or other documentary evidence (depending on the facts and circumstances

of a given case) being annexed with the application seeking extension of time so as to convince the Court that the prayer was founded on grounds which do exist.

44. The extension of time shall be only by way of exception and for reasons to be recorded in writing, howsoever brief they may be, by the court. In no case, the defendant shall be permitted to seek extension of time when the court is satisfied that it is a case of laxity or gross negligence on the part of the defendant or his counsel. The court may impose costs for dual purpose: (i) to deter the defendant from seeking any extension of time just for asking and (ii) to compensate the plaintiff for the delay and inconvenience caused to him.

45. However, no straitjacket formula can be laid down except that the observance of time schedule contemplated by Order VIII Rule 1 shall be the rule and departure therefrom an exception, made for satisfactory reasons only. We hold that Order VIII Rule 1, though couched in mandatory form, is directory being a provision in the domain of Proconsul law."

7. In the case of R.N. Jadi (supra) without disturbing the

earlier view, in Kailash Vs. Nanhku (supra), the Apex Court

put a note of caution that Kailash Vs. Nanhku is not the authority

for receiving written statement, even after expiry of the period

permitted by law in a routine manner. The relevant paras of the

said judgment are reproduced as under:-

"5. It is true that procedure is the handmaid of justice. The court must always be anxious to do justice and to prevent victories by way of technical knock-outs. But how far that concept can be stretched in the context of the amendments brought to the Code and in the light of the mischief that was sought to be averted is a question that has to be seriously considered. I am conscious that I was a party to the decision in Kailash v. Nankhu and Ors. : AIR2005SC2441 which held that the provision was directory and not mandatory But there could be situations

where even a procedural provision could be construed as mandatory, no doubt retaining a power in the court, in an appropriate case, to exercise a jurisdiction to take out the rigor of that provision or to mitigate genuine hardship. It was in that context that in Kailash v. Nankhu and Ors. (supra) it was stated that the extension of time beyond 90 days was not automatic and that the court, for reasons to be recorded, had to be satisfied that there was sufficient justification for departing from the time limit fixed by the Code and the power inhering in the court in terms of Section 148 of the Code. Kailash is no authority for receiving written statements, after the expiry of the period permitted by law, in a routine manner.

6. A dispensation that makes Order VIII Rule 1 directory, leaving it to the courts to extend the time indiscriminately would tend to defeat the object sought to be achieved by the amendments to the Code. It is, therefore, necessary to emphasize that the grant of extension of time beyond 30 days is not automatic, that it should be exercised with caution and for adequate reasons and that an extension of time beyond 90 days of the service of summons must be granted only based on a clear satisfaction of the justification for granting such extension, the court being conscious of the fact that even the power of the court for extension inhering in Section 148 of the Code, has also been restricted by the legislature. It would be proper to encourage the belief in litigants that the imperative of Order VIII Rule 1 must be adhered to and that only in rare and exceptional cases, the breach thereof will be condoned. Such an approach by courts alone can carry forward the legislative intent of avoiding delays or at least in curtailing the delays in the disposal of suits filed in courts. The lament of Lord Denning in Allen v. Sir Alfred Mcalpine & Sons (1968) 1 All E.R. 543 that law's delays have been intolerable and last so long as to turn justice sour, is true of our legal system as well. Should that state of affairs continue for all times?"

8. Indisputably, the defendant in the present case was served

on 14th March, 2011 and vide order dated 18th October, 2011,

this Court categorically observed that the written statement has

not been filed so far, although the defendant was served way

back on 14th March, 2011. Counsel for the defendant sought time

to move an appropriate application within a period of one week

to seek extension of time in filing the written statement but the

defendant failed to file the written statement till 9 th January,

2012. Counsel for the defendant has given some personal

reasons due to which he could not file the written statement and

these reasons given by the defendant explain the delay on its

part w.e.f. 18th October, 2011 till 9th January 2012. However, the

main concern of the Court is the delay which has taken place

from the date of service i.e. 14th March, 2011 till 18th October,

2011 which the defendant has nowhere explained as to what

prevented him to file the written statement within the said

period. Even the application under Order VII Rule 11 CPC was

filed by the defendant much beyond the period of 90 days i.e. on

15th October, 2011. Reliance on the judgment in the case of

Saleem Bhai & Ors. (Supra) by the counsel for the defendant

will be of no help in the facts of the present case although there

cannot be any dispute to the legal position enunciated therein. In

any case of the matter, Saleem Bhai (Supra) deals with the

facts which are prior to the amendment in order VIII Rule 1 CPC

and, therefore, the judgment in the case of R.N. Jadi (Supra)

will squarely apply to the facts of the present case. Undoubtedly

without filing the written statement, the defendant can file an

application under Order VII Rule 11 CPC but nevertheless the

filing of such an application will not extend the period of

limitation for filing the written statement as prescribed under

Order VIII Rule 1 CPC unless the court on the filing of such an

application prefers to decide such application at the first

instance without calling for the written statement from the

defendant. Invariably it has been found that this provision of

Order VII Rule 11 is often misused to delay the proceedings and,

therefore, the Courts are to be conscious enough if they decide

the application under Order VII Rule 11 before calling for

written statement. In the absence of such decision by the Court

the defendant cannot take shelter merely by filing such an

application to circumvent the mandate of order VIII Rule 1 CPC

by not filing the written statement within the time prescribed

and keep dragging the matter on the application itself. Filing of

an application under Order VII Rule 11 CPC cannot be allowed

to become a tool in the hands of unscrupulous litigants to defeat

its main objective. There is no gain saying that the provision

under Order VII Rule 11 CPC can be invoked by the defendant at

any stage of the suit and there is no time period prescribed

under law for the presentation of such an application by the

defendant. The Courts are fully competent to exercise the power

under Order VII Rule 11 CPC at any stage of the case where the

court finds that on a meaningful and not a formal reading of the

plaint the same satisfies the conditions laid down under Order

VII Rule 11 CPC.

9. Coming back to the facts of the present case, it is quite

evident that not only the defendant had failed to file the written

statement within the extended period of 90 days but gave no

reasons or explanation for not filing the written statement from

the date of the service i.e. 14th March, 2011 till at least 18th

October, 2011, whereafter counsel for the defendant has given

his personal reasons for not filing the written statement till

January, 2012. In the absence of any explanation offered by the

defendant for the said period of 6 months, this Court does not

find that the defendant deserves grant of any concession to

condone the said delay of nine months.

10. In the light of the above discussion, this Court does not find

any merit in the application filed by the defendant under Order

VIII Rule 1 CPC and accordingly the right of the defendant to file

the written statement stands closed. The application filed by the

plaintiff under Order VIII Rule 10 CPC is also disposed of in

terms of the above directions. The defence of the defendant is

accordingly striked off in terms of Order VIII Rule 10 CPC.

I.A. No. 16996/2011

List the matter for consideration of the application filed by

the defendant under Order VII Rule 11 CPC on 9th May, 2012.

KAILASH GAMBHIR, J FEBRUARY 29, 2012 rkr