Swami Ram Tirath Mission vs Sanjeev Saberwal
2012 Latest Caselaw 5754 Del

*                IN THE HIGH COURT OF DELHI AT NEW DELHI

+             IA No. 9153/2012 (by the defendant u/S 5 of Limitation Act
              for condonation of delay in filing the WS) and I.A.
              No.9154/2012 (by the defendant u/S 5 of Limitation Act for
              condonation of delay in re-filing the WS) in CS(OS)
              838/2011


                                           Date of Decision: 25.09.2012

IN THE MATTER OF

SWAMI RAM TIRATH MISSION                                         ..... Plaintiff

                            Through: Mr. Ravi Kant Chadha, Sr. Advocate with Mr.
                            R.K. Gautam, Advocate



                     versus



SANJEEV SABERWAL                                                 ..... Defendant

                            Through: Mr.Bharat B. Sawhney, Sr. Advocate with

                            Mr. Davinder Grover and Mr. Lakshay Sawhney,
                            Advocates


CORAM
HON'BLE MS.JUSTICE HIMA KOHLI

HIMA KOHLI, J. (Oral)

1. I.A. No.9153/2012 has been filed by the defendant praying inter

alia for condonation of delay of 88 days in filing the written statement and I.A.

No. 9154/2012 has been filed by him for seeking condonation of delay of 162

days in re-filing the written statement.

2. The applications, as they stand, are extremely ambiguous for the

reason that no relevant dates whatsoever have been furnished by the defendant

to state as to the period within which he was required to file the written

statement, the date on which the time for filing the written statement had

expired, the date on which the written statement actually came to be filed and

the dates on which the defendant was travelling to the United Kingdom. The

only date furnished in the applications is 04.11.2011, i.e., the date when the

defendant states he had returned to India from the United Kingdom and had

contacted his counsel for preparation of the written statement.

3. It is also relevant to note that though no permission was taken

from the Court, the defendant has on his own filed an additional affidavit dated

14.09.2012 to improve upon his case and to substantiate the averments made in

the present applications. The defendant has stated in the aforesaid affidavit that

the summons in the suit were received by him with a copy of the plaint for his

appearance on 27.07.2011. However, documents were not supplied with the

plaint. On 27.07.2011, the defendant was granted four weeks time by the Joint

Registrar to file the written statement. Pertinently, the aforesaid period of four

weeks had expired on 26.08.2011. However, the written statement came to be

filed by the defendant after almost three months therefrom, i.e., on 23.11.2011.

The aforesaid belated written statement was also not on record till as late as on

09.05.2012, when it was noticed by the Joint Registrar that as per the office

report, the written statement had not been filed.

4. Though there is no averment made in the applications to explain

the delay of three months in filing the written statement if reckoned from

26.08.2011, the defendant has stated in the additional affidavit that the written

statement could not be finalized within the prescribed period of one month from

27.07.2011 as the relevant documents relating to the material facts and

information could not be traced due to extensive renovation work that was being

undertaken in his office during the period from July to September, 2011. It is

further stated that the relevant documents could be traced only on 20.10.2011

but the same could not be handed over to the counsel as the defendant had to

rush to the United Kingdom for the post surgical medical check-ups of his son,

who is settled there and had undergone a surgery in May 2010 and subsequently

undergone another surgery in May 2011.

5. In support of the aforesaid submission, the defendant has enclosed

a copy of the e-mail dated 13.07.2011 addressed by the Consultant Orthopaedic

Surgeon, University Hospitals Bristol, United Kingdom stating inter alia that Mr.

Sanjay Sabherwal (son of the plaintiff) was admitted on 13.05.2011 and

underwent a surgery on 14.05.2011, whereafter he was discharged on

15.05.2011. The doctor had stated that the "patient would require follow-up in

the fracture clinic in due course".

6. The aforesaid e-mail does not throw any light on the nature of

follow-up, which required the personal presence of the defendant in the United

Kingdom from October, 2011 onwards. Incidently, learned Senior Advocate

appearing for the defendant had clarified that the wife of the defendant is

residing on a permanent basis in the United Kingdom and she was looking after

their son, who had undergone a surgery in May, 2010 and subsequently another

one in May, 2011. In para 5 of the affidavit, the defendant states that he had

returned from the United Kingdom on 04.11.2011 and had immediately

contacted his counsel and handed over all the relevant documents for

preparation of the written statement. The defendant seeks to explain the delay

of 88 days beyond the prescribed period of 30 days in filing the written

statement, in the aforesaid manner.

7. The present application is vehemently opposed by the learned

Senior Advocate appearing for the non-applicant/plaintiff, who states that the

lease deed, on the basis of which the defendant is occupying the suit premises

that is owned by the plaintiff/Mission, had expired in the month of November,

2007 and thereafter, he has been occupying the suit premises as a tenant at

sufferance. He further states that the defendant had stopped paying the

occupation charges to the plaintiff w.e.f. January 2009 and it is for the aforesaid

reason that the defendant has adopted such dilatory tactics solely to delay the

present proceedings, while conveniently occupying the suit premises owned by

the plaintiff/Mission without paying a penny towards the occupation charges.

8. Learned Senior Advocate appearing for the defendant rebuts the

aforesaid submission by stating that till March 2009, the defendant had been

depositing the monthly rent @ `20,000/- directly in the bank account of the

plaintiff whereafter the plaintiff/Mission had instructed its banker not to accept

the said rent and thereafter, he had dispatched the rent by cheque directly to

the plaintiff for a couple of months in the year 2009. But thereafter, the

defendant had admittedly stopped tendering the occupation charges in respect

of the suit premises to the plaintiff.

9. The Court has heard the counsels for the parties and examined the

averments made in the applications.

10. IA No. 9153/2012, as originally filed on 10.05.2012, is virtually

silent as to the explanation offered for seeking condonation of delay of 88 days

in filing a belated written statement. Except for a passing reference made in

para 3 of the application, there is not a whisper therein with regard to the

explanation offered for the delay and the relevant dates for considering the

application, which fact has also been noticed hereinabove.

11. Even if the affidavit that was subsequently filed by the defendant

without seeking prior permission from the Court, is taken into consideration, the

same reveals a number of loop holes therein. Except for a sweeping submission

made to the effect that the office of the defendant was being renovated for a

period of three months, i.e., from the months of July to September 2011, there

are no relevant supporting details with regard to the purported renovation work

that was being undertaken in his office premises, i.e., the suit premises.

12. Further, a perusal of the e-mail dated 13.07.2011 addressed by the

Consultant Orthopaedic Surgeon, University Hospitals Bristol, United Kingdom,

who it is stated had treated the son of the defendant, shows that his surgery had

taken place in May 2011. It is relevant to note that even as per the defendant,

his wife, who is residing in the United Kingdom, was taking care of their son.

Therefore, the urgency sought to be expressed by the defendant for rushing to

the United Kingdom in the month of October 2011 without furnishing the dates

of his travel, when his son had only required follow-up in the fracture clinic,

cannot be considered as just and sufficient cause for explaining the delay for the

period w.e.f. October 2011 till 23.11.2011 in filing the written statement. The

defendant has also failed to place on record a very relevant document, i.e., a

copy of his passport to establish the period of his stay in the United Kingdom.

13. Courts have time and again observed that dilatory tactics adopted

by the defendants in law courts are now proverbial as they do stand to gain by

the said delay and the extension of time sought for by the defendant from the

court beyond thirty days or within ninety days, should not be granted as a

matter of routine. The extension can only be by the way of exception and the

reasons are to be recorded in writing by the court to its satisfaction. Such

extension should be provided only where grave injustice would be occasioned if

the time was not extended. (Refer: Kailash Vs.Nanku reported as AIR 2005 SC

2441).

14. In the aforesaid facts and circumstances of the present case, this

Court is not satisfied with the explanation offered by the defendant to explain

the inordinate delay in filing the written statement. Much less showing any

diligence, the entire approach of the defendant has been quite casual in the

matter. Therefore, the Court is not inclined to condone the delay of 88 days in

filing the written statement by the defendant. The present applications are

therefore dismissed being devoid of merits.

(HIMA KOHLI) JUDGE SEPTEMBER 25, 2012 rkb