M/S. Complete Dewatering Systems ... vs M/S. Dsc Limited
2014 Latest Caselaw 2164 Del

$~13

*      IN THE HIGH COURT OF DELHI AT NEW DELHI
%                                      Date of Decision: April 30, 2014
+                         CS(OS) 176/2012
       M/S COMPLETE DEWATERING SYSTEMS
       PVT LTD                                             ..... Plaintiff
            Through: Mr.M.Taiyab Khan, Adv.

                          versus

       M/S DSC LIMITED                              ..... Defendants
            Through: Mr.Ashish Dholakia and Mr.Kishore Kumar,
            Advs.

       CORAM:
       HON'BLE MR. JUSTICE G.S.SISTANI

G.S.SISTANI, J. (Oral)

IA No.3118/2013 (O.VIII Rule 1 CPC)

1. This is an application under Order VIII Rule 1 CPC read with

Section 5 of the Limitation Act for condonation of delay in filing the

written statement. The plaintiff has filed the present suit for the recovery

of Rs.23,88,505/- along with interest. Admittedly, defendants were

served with the summons in the suit in the month of June 2012. The

order sheet reveals that on 03.07.2012 counsel for the defendant had

entered appearance and undertaken to file his vakalatnama within one

week. 30 days' time was granted to file the written statement. The

matter was thereafter adjourned to 14.9.2012. On the said date, the Joint

Registrar noticed that neither the vakalatnama nor the written statement

had been filed. Time was granted to the plaintiff to file affidavit by way

of evidence and the matter was adjourned to 21.02.2013, on which date

plaintiff's witness was examined and discharged. No written statement

was on record even on that day but a submission was made by learned

counsel for the defendant that the written statement had already been

filed on 20.12.2013. Opportunity was granted to cross-examine the

witness of the plaintiff. However, no cross-examination was conducted

by the defendant. This application has been filed on 20.02.2013 by the

defendant seeking condonation of delay in filing the written statement.

The only ground which has been raised in the present application seeking

condonation of delay in filing the written statement is as under:-

"3. That the present application is being filed for condoning the delay in filing the instant written statement. The ground for not filing the same within the stipulated time is because the Central Bureau of Investigation had, on 12.5.2011 seized some record of the defendant company in connection with investigations relating to irregularities in the Commonwealth Games related projects. This record has not been returned by the CBI so far. During the course of raid by the CBI, many documents of the defendant company got misplaced and were not easily traceable. It is with great difficulty that some other record having a bearing on the present plaint could be culled out on the basis of which submissions are being made in the written statement. It is due to aforesaid reasons the present written statement got delayed."

2. Mr.Dholakia, learned counsel for the applicant has strongly urged

before the Court that the delay in filing the written statement is neither

deliberate nor intentional but solely on account of the fact that the

documents having a bearing on the present matter were not available

with the defendant by virtue of having been seized by the CBI.

Mr.Dholakia has placed reliance on the decision of the Supreme Court

Zolba v. Keshao & Ors. reported at (2008) 11 SCC 769 in support of his

submission that it is well within the power of the Court to grant

extension of time in filing the written statement.

3. The present application is vehemently opposed by the learned

counsel for the plaintiff who submits that one week's time was sought by

the defendant to file vakalatnama on 03.07.2012 whereas even up to

14.09.2012 i.e. after a lapse of 2½ months since extension had been

sought, neither the vakalatnama nor the written statement was filed. It is

further submitted by counsel for the plaintiff that the conduct of the

defendant is extremely callous and the defendant has been highly

negligent in pursuing the matter, which is evident from the perusal of the

order sheets. Counsel further submits that defendant has failed to state

reasonable grounds for extension of time.

4. I have heard counsel for the parties and considered their rival

submissions. It is no longer res integra that time can be extended in

filing the written statement even after 90 days of service of summons.

However, time is to be extended only in exceptional cases where

sufficient cause is shown to the satisfaction of the Court. The Apex

Court in the case of Kailash v. Nankhu & Ors. reported at AIR 2005 SC

2441 has laid down in detail the object and purpose behind enacting

Order VIII Rule 1 CPC and exceptional circumstances under which the

Court may extend the time for filing the written statement. Relevant

paragraphs of the judgment have been reproduced below:-

"26. The text of Order VIII Rule 1, as it stands now, reads as under:-

"1. Written Statement - The defendant shall, within thirty days from the date of service of summons on him, present a written statement of his defence:

Provided that where the defendant fails to file the written statement within the said period of thirty days, he shall be allowed to file the same on such other day, as may be specified by the Court, for reasons to be recorded in writing, but which shall not be later than ninety days from the date of service of

27. Three things are clear. Firstly, a careful reading of the language in which Order VIII, Rule 1 has been drafted, shows that it casts an obligation on the defendant to file the written statement within 30 days from the date of service of summons on him and within the extended time falling within 90 days. The provision does not deal with the power of the court and also does not specifically take away the power of the court to take the written statement on record though filed beyond the time as provided for. Secondly, the nature of the provision contained in Order VIII, Rule 1 is procedural. It is not a part of the substantive law. Thirdly, the object behind substituting Order VIII, Rule 1 in the present shape is to curb the mischief of unscrupulous defendants adopting dilatory tactics, delaying the disposal of cases much to the chagrin of the plaintiffs and petitioners approaching the court for quick relief and also to the serious inconvenience of the court faced with frequent prayers for adjournments. The object is to expedite the hearing and not to scuttle the same. The process of justice may be speeded up and hurried but the fairness which is a basic element of justice cannot be permitted to be buried.

xxxx xxxx xxxx

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 lose 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."

5. In another judgment delivered by a Single Judge of this Court

M/s.Omaxe Ltd. & Ors. v. M/s.Roma International Pvt. Ltd. reported at

(2012) ILR 6 Delhi 76, wherein defendant sought condonation of delay

on the ground that the documents pertaining to the case, were not

traceable for a very long time and could only be traced after much

efforts, following observations were made:-

"5. After the amendment of Order 8 Rule 1 CPC, an obligation is casted on the defendant to file written statement 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 v. 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."

6. The judgment relied upon by learned counsel for the applicant i.e.

Zolba's case (supra) is not applicable to the facts of the present case

because of two distinguishing factors; firstly, in the judgment that the

applicant seeks to rely upon, delay was merely of 35 days as opposed to

inordinate delay of 231 days in the present case, and secondly, no

foundation has been laid down by the applicant showing sufficient

grounds for extension of time. Admittedly, as per the present

application, the CBI raid took place even prior to the filing of the present

suit. In case documents were seized by the CBI, a copy of the

panchnama ought to have been placed on record by the defendant in

support of his submission that the documents had been seized which has

not been done in the present case. Even otherwise the present

application is vague and lacks material particulars. As per the

application the CBI "seized some record of the defendant company",

however, the applicant has failed to state as to when the CBI raid was

conducted, the nature of documents which were seized and the relevance

of those documents to the present case. There are also no details with

regard to efforts if any made to procure the documents from CBI. In my

view the ground raised in the application is very casual.

It was with the aim of curbing such unscrupulous pleas and

dilatory tactics adopted by defendants, that an amendment was carried

out by the legislature in the year 2002 and an upper limit of 90 days was

fixed with respect to the time within which written statement shall be

filed by the defendants. Although court has wide powers in granting

extension of time for filing of written statement, it has consistently been

held that this power must be exercised by the court sparingly and in

exceptional circumstances and that an extension should not be granted as

a matter of routine or of a mere asking. The present application, in my

view does not portray any exceptional situation and on the contrary

discloses the casual manner in which the application has been drafted

and an extension has been sought. Accordingly, IA No.3118/2013 filed

under Order VIII Rule 1 CPC is dismissed for want of sufficient grounds

for condonation of delay.

CS(OS) 176/2012

1. Counsel for the plaintiff submits that the defendants were served

in the suit in June 2002. As no written statement has been filed by the

defendants in spite of having been granted time to file the same, the

application [IA No.3118/2013] for condonation of delay in filing the

written statement stands dismissed and the plaintiff is entitled to a decree

under Order VIII Rule 10 CPC.

2. The plaintiff has also filed affidavit by way of evidence of Shri

Navneet Sharma, PW-1 constituted attorney of the plaintiff company,

exhibited as Ex.PW-1/A. Despite an opportunity having been granted,

PW-1 was not cross-examined by counsel for the defendant. Thus, the

evidence of the plaintiff has gone unrebutted. At this stage,

Mr.Dholakia submits that no opportunity for cross-examination was

granted to the defendant. Mr.Dholakia also submits that no invoices have

been placed on record by the plaintiff and therefore the plaintiff is unable

to prove its case.

3. In his affidavit by way of evidence, PW-1 has proved the

resolution dated 30.12.2013 by which he was authorized to file the

present suit. He has also proved the Special Power of Attorney, Ex.PW-

1/2. As per the evidence, the defendant contacted the plaintiff for

carrying out dewatering work at "Bridge Work near Sarai Kale Khan,

New Delhi". An offer dated 31.01.2009 was made by the plaintiff to the

defendant containing terms and conditions. The offer letter has been

exhibited as Ex.PW-1/3. Copy of the work order dated 31.01.2009

placed by the defendant on the plaintiff has been exhibited as Ex.PW-

1/4. PW-1 further deposed that the contract between the parties stood

concluded once the plaintiff signed the copy of the letter dated

02.02.2009, exhibited as Ex.PW-1/5. It has further been deposed that the

agreement was confirmed by exchange of letters between the parties by

e-mail exhibited as Ex.PW-1/6. PW-1 has further deposed that pursuant

to the conclusion of the contract and confirmation of the agreement, the

dewatering equipments were sent to the defendant's site and dewatering

work started from 05.02.2009. By an additional work order dated

14.03.2009 placed by the plaintiff, additional equipment was sent at the

site of the defendant. The copy of the second work order dated

14.03.2009 has been exhibited as Ex.PW-1/7. PW-1 has further deposed

that another work order dated 13.05.2009 was also placed which has

been exhibited as Ex.PW-1/8. It has further been deposed by PW-1 that

the plaintiff company raised bills on the defendant with respect to the

work carried out by them. Various communications/demands were made

seeking payment of the outstanding amount due to the plaintiff including

letters dated 09.06.2010, 15.07.2010 and 29.07.2010 (Ex.PW-1/9,

Ex.PW-1/10 and Ex.PW-1/11 respectively). PW-1 has also deposed that

the plaintiff has maintained the account ledger of the defendant,

containing details of debit and credit for the period of 1.4.2008 to

10.8.2010 which has been filed on record and the same is exhibited as

Ex.PW-1/12. PW-1 has further deposed that as there was no positive

response from the defendant, plaintiff company was compelled to issue a

legal notice dated 21.09.2010 which was duly served upon the defendant.

Legal notice along with postal receipts have been exhibited as Ex.PW-

1/13 and Ex.PW-1/14 respectively. Acknowledgment card signed by the

defendants, showing service of the legal notice dated 21.09.2010 is

exhibited as Ex.PW-1/15. It has further been deposed that the plaintiff

company issued another legal notice dated 20.4.2011 through Regd.Post

and by courier, however, the defendant company neither replied to the

aforesaid legal notice nor paid the suit amount. Copy of the said legal

notice along with postal receipt and acknowledgment are exhibited as

Ex.PW-1/16 (colly.). Another legal notice dated 17.09.2011 issued by

the plaintiff company which was also served upon the defendant along

with acknowledgment has been exhibited as Ex.PW-1/17 (Colly.).

5. I have heard counsel for the parties, perused the plaint and

documents placed on record in support of the pleas raised by the plaintiff

in the suit as also the affidavit by way of evidence filed by PW-1.

6. PW-1 has proved the contract between the parties as also the

confirmed agreement which have been exhibited as Ex.PW-1/5 and

Ex.PW-1/6 respectively. PW-1 has also proved the additional work

orders placed by the defendant with the plaintiff which have been

exhibited as Ex.PW-1/7 and Ex.PW-1/8, various letters issued by the

plaintiff to the defendant demanding the outstanding amount due to

them, have been exhibited as Ex.PW-1/9 to Ex.PW-1/11, account ledger

maintained by the plaintiff with respect to the defendant containing

details of amounts due from the defendant which has been exhibited as

Ex.PW-1/12. Three legal notices sent by plaintiff to defendant along

with their postal receipts and acknowledgment cards to which no reply

was received from the defendant, have been exhibited as Ex.PW-1/13 to

Ex.PW-1/17.

7. Having regard to the submissions made and taking into

consideration the evidence of the plaintiff which has gone unrebutted as

also the documents placed on record, the present suit is decreed in favour

of the plaintiff and against the defendants in the sum of Rs.23,88,505/-

together with pendente lite and future interest @8% per annum.

8. Decree sheet be drawn up accordingly.

(G.S.SISTANI) JUDGE APRIL 30, 2014 dkb/pdf