Delhi High Court
M/S. Omaxe Ltd. & Ors. vs M/S. Roma International Pvt. Ltd. on 2 July, 2012
Author: M. L. Mehta
* THE HIGH COURT OF DELHI AT NEW DELHI
+ CM(M) 729/2012 with CM 10873/2012 &
10874/2012
Date of Decision: 02.07.2012
M/S. OMAXE LTD. & ORS. ...... Petitioners
Through: Mr. Mukti Bodh, Advocate.
Versus
M/S. ROMA INTERNATIONAL PVT. LTD. ...... Respondent
Through: None.
CORAM:
HON'BLE MR. JUSTICE M.L. MEHTA
M.L. MEHTA, J. (Oral)
1. This petition under Article 227 of the Constitution assails order
dated 06.07.2011 of the learned Additional District Judge whereby an
application for condonation of delay in filing Written Statement by the
petitioners was dismissed. It also assails order dated 30.03.2012
whereby review application of order dated 06.07.2011 was dismissed by
the learned ADJ.
2. The respondent filed a suit for recovery against all the three
petitioners. As per record, notices were sent to the petitioners by Speed
Post on 13th August, 2010. The AD card bore the stamp of 17th August,
2010 of the Post Office. This testified that the petitioners were served
on 17th August, 2010. On 1st November 2010 the petitioners appeared,
but the WS was not filed. Thereafter the matter was adjourned on few
dates and it was only on 4th February, 2011 that the petitioners filed an
application under section 5 of Limitation Act r/w section 148 and 151 of
CPC seeking condonation of delay in filing the written statement. The
delay was sought to be condoned mainly on the ground that the
petitioners were involved in construction of various sites and the
documents pertaining to this case were not traceable and could only be
traced after much efforts. It was also averred that it took some time to
requisition the relevant documents and on receipt thereof the same were
sent to their counsel for preparing WS and in the process, the filing of
WS got delayed. It was averred that the same was not intentional or
deliberate. The said application was dismissed vide the impugned order
dated 6th July 2012 by the learned ADJ. The review against the said
order was also dismissed by the learned ADJ vide his order dated
30.03.2012. The petitioners assail both these orders in the present
petition.
3. I have heard learned counsel for the petitioners and perused the
record.
4. The submissions which have been made in the present petition are
similar to what were made before the learned ADJ in support of
application seeking condonation of delay as also review petition. The
sum and substance of the submission was that the documents relating to
the case in question could not be located for considerable time and after
these were traced, they were given to their counsel who took some time
to prepare the WS.
5. The learned Counsel submitted that the delay in filing the WS was
not intentional and that the same may be condoned in the interest of
justice as no prejudice was to be caused to the respondent.
6. After the amendment of Order 8 Rule 1 CPC, an obligation is
casted on the defendant to file WS within 30 days after service of
summons on him. However, for the reasons to be recorded in writing
the court may, in a given case, also extend the time up to 90 days for
filing written statement. There is no doubt that the provisions contained
in Order 8 Rule 1 CPC is directing and not substantive and that in an
appropriate case, on the defendant showing good cause of not being able
to file the WS within the period of 90 days, the court can extend the
time. But it is trite that the time could only be extended in exceptional
hard cases. It was apparent from the legislative intention which has
fixed the upper time limit as 90 days. Thus, the discretion could be
exercised by the Court to extend the time not in routine and on the mere
asking of the defendant. It is more so when the period of 90 days stands
expired. As per Salem Advocate Bar Association, Tamil Nadu Vs.
UOI AIR 2005 SC 3353, the discretion of the court to extend the time
could not be exercised frequently and routinely so as to nullify the
period fixed by Order 8 Rule 1 CPC.
7. Now having seen the intent of the law as above, it may be noted
that in the instant case the petitioners were served on 17th August, 2010.
Their counsel appeared before the Court of ADJ on 6 th October 2010.
On 6th October 2010 the matter was adjourned for 01.12.2010 with the
directions to the petitioners to supply advance copy of the WS to the
opposite party. On 01.12.2010, the proxy counsel appeared for the
petitioners, but, no WS was filed till then. It was only on the next
adjourned date i.e. 04.02.2011 that the application for condonation of
delay in filing the WS was filed by the petitioners. The plea that was
taken that the documents were misplaced at some site and could be
traced only after many efforts, is apparently vague and irresponsible.
Similar is the plea that the documents were given to the counsel who
took some time to prepare the WS. In the backdrop of mandatory
provision of law regarding filing of WS, the pleas taken for seeking
condonation are extremely vague and devoid of any merit. Not only
that, it is no where stated as to which were the documents misplaced and
from where these were traced and when, but the details of those
documents has also not been stated. No information/ material/
documents/ ledger which were stated as not traceable, could be shown to
be referred in the WS. When questioned as to which were those
documents and when these were misplaced and from where these were
traced and what was relevancy of those documents for the purpose of
WS, the learned counsel appearing for the petitioners could not respond.
The irresponsibility and carelessness of the petitioners is reflected from
the fact that they were served on 17.08.2010, whereas the meetings of
their Board of Directors to contest the case were held on 30.09.2010,
06.10.2010 and 22.10.2010. This would demonstrate that even the
decisions regarding contesting the case were taken by the petitioners
much after expiry of the stipulated period of 30 days for filing of WS. It
is experienced that these are routine type of pleas which are taken for
delayed filing of the WS. Such unscrupulous pleas are nothing, but due
to irresponsible, careless and casual approach of the defendants in filing
the Written Statements. It was because of this tactical approach of the
defendants that the provisions were amended by the Parliament. The
courts shall not exercise discretion in extending the time on such kind of
pleas to scuttle the legislative intent and object of the provisions
contained in Order 8 Rule 1 CPC. Such could not be in the category of
cases where the court may exercise discretion to extend time in the ends
of justice.
8. I do not see any illegality or perversity in the discretion exercised
by the learned ADJ. There is no ground made out to interfere with the
impugned order. The petition has no merit and is hereby dismissed in
limini.
M.L. MEHTA, J.
JULY 02 , 2012
awanish
