The Instalment Supply Ltd. vs Khaitan Hotels Pvt. Ltd. & Anr.
2014 Latest Caselaw 3607 Del

*      IN THE HIGH COURT OF DELHI AT NEW DELHI

%                                    Order delivered on: August 08, 2014

+             I.A. Nos.940/2013, 4073/2013, 15033/2013, 2185/2014
              in CS(OS) No.989/2012

       THE INSTALMENT SUPPLY LTD                  .....Plaintiff
                    Through Mr.Sudhanshu Batra, Sr.Adv. with
                            Mr.Abhishek Sharma & Mr.Yash
                            Srivastava, Advs.
                    versus

       KHAITAN HOTELS PVT LTD. & ANR            .....Defendants
                    Through Mr.Vikas Dhawan, Adv. with
                             Mr.S.P.Das, Adv. for D-1.
                             Mr.Amit Verma, Adv. with
                             GP Capt. Karan Singh Bhati, Adv.
                             for D-2
       CORAM:
       HON'BLE MR. JUSTICE MANMOHAN SINGH

MANMOHAN SINGH, J. (ORAL)

I.A. No.940/2013 (u/o VIII R.10 CPC, by plaintiff), I.A. No.4073/2013 (u/o VIII R.1 CPC, by defendant No.1), I.A. No.15033/2013 (for condonation of delay in filing the written statement, by defendant No.2) and I.A. No.2185/2014 (u/s 151 CPC, by plaintiff)

1. By this order, I propose to decide the above said four applications filed by the parties.

2. The plaintiff has filed the suit for recovery of possession in respect of the tenanted portion of property bearing No.46, Janpath, New Delhi-110001 as well as for mesne profits and damages. The suit and the interim applications were listed before Court on 16th April, 2012 when summons in the suit and notice in the interim applications

were issued to both the defendants. An interim order was also passed restraining the defendants from handing over the possession of the suit property to any third party.

3. On 12th September, 2012, it was recorded by the Joint Registrar that the written statement filed by defendant No.1 was on record. Time was granted to the plaintiff to file replication thereto. As a matter of fact, the replication was filed on 5th December, 2012. Therefore, the pleadings qua defendant No.1 were completed on the said date.

4. Defendant No.2 was served with the summons on 11th May, 2012 and the written statement was filed on its behalf on 13th September, 2013. It appears from the record that the plaintiff filed an application under Order VIII Rule 10 read with Section 151 CPC being I.A. No.940/2013 in January, 2013, praying that the written statement filed by defendants No.1 & 2 be not taken on the record and the judgment be pronounced against them.

5. After filing of the said application, defendant No.1 filed an application under Order VIII Rule 1 CPC being I.A. No.4073/2013 with the prayer that the delay in filing the written statement be condoned. It is stated in the application that before filing of the application under Order VIII Rule 10 CPC by the plaintiff, pleadings in respect of defendant No.1 were already completed. The plaintiff at that time, when the time for replication was granted, raised no objection. The objection was raised by the plaintiff in the replication that the same is being filed without prejudice.

6. The defendant No.2 has also filed an application for condonation of delay in filing the written statement, being I.A.

No.15033/2013 in September, 2013 along with the written statement, praying that this Court may condone the delay of 120 days in filing the written statement.

7. The fourth application being I.A. No.2185/2014 is filed by the plaintiff seeking direction that the plaintiff's application under Order VIII Rule 10 CPC be placed before the Court for adjudication when the matter comes up for hearing on 19th August, 2014. The said application has become infructuous, as all the three remaining applications are being considered together. The said application is accordingly disposed of.

8. Learned Senior counsel appearing on behalf of the plaintiff states that the written statement on behalf of defendant No.1 was filed after the expiry of 90 days and there was no application whatsoever on behalf of defendant No.1 for extension of time. He referred the judgment of the Supreme Court in the case of M/s R.N.Jadi and Brothers & Ors. vs. Subhashchandra, AIR 2007 Supreme Court 2571, relevant para 25 reads as under:-

"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 vs. 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?"

9. With regard to the submissions against defendant No.2, learned Senior counsel has argued that defendant No.2 was served on 11th May, 2012. However, the written statement was filed on its behalf on 13th September, 2013. There is a huge delay with regard to defendant No.2 who has also failed to file any application for condonation of delay. Learned Senior counsel for the plaintiff states that thus, in view of the settled law, the decree is liable to be passed against both the defendants.

10. Learned counsel for defendant No.1 states that after the expiry of 90 days, there is a delay of about 39 days and defendant No.1 has filed an application in this regard, although in the application, defendant No.1 has also added 90 days, therefore, the prayer is made in the application to condone the delay of 129 days. His submission is that the written statement could not be filed in time, as the parties in the suit were trying to settle their disputes. He has referred the arbitration proceedings as well as the orders passed by this Court in Arb. P. No.127/2012 between the parties. He submits that the arbitration proceedings were held on 23rd March, 2012 and 5th July, 2012 and thereafter, the proceedings were adjourned to 8th October, 2012. According to him, during this period, talks were

initiated by defendant No.2 with the plaintiff as well as defendant No.1. Therefore, defendant No.1 did not take the steps for filing the written statement in the present case, as it was of a bonafide belief that the matter would be settled between the parties outside the Court and it was only in the end of August, 2012 that it became apparent that the disputes could not be resolved. Therefore, the written statement was filed within 30 days on 10th September, 2012.

11. Mr.Vikas Dhawan, learned counsel for defendant No.1 has referred the subsequent decision rendered by the Supreme Court in the case of Zolba vs. Keshao and Others, reported in (2008) 11 Supreme Court Cases 769 wherein it was held that it would be open to the Court to permit the defendants to file their written statement if the exceptional circumstances have been made out and the parties should ordinary be not denied the opportunity of participating in the process of justice dispensation. Learned counsel for defendant No.1 states that the present case is covered in the said exception, therefore, the plaintiff's application under Order VIII Rule 10 CPC be dismissed.

12. As regards defendant No.1, it is an undisputed fact that by order dated 12th September, 2012, it was recorded that the written statement filed by defendant No.1 is on record and four weeks' time was granted to the plaintiff to file the replication. At that time, no objection was raised by the learned counsel for the plaintiff. However, after the expiry of about four months, the plaintiff has filed the application under Order VIII Rule 10 CPC against defendant No.1 also for passing the decree. As per the record, the written statement

was filed by defendant No.1 on 10th September, 2012 and he was served with summons on 11th May, 2012.

13. As far as the plaintiff's application under Order VIII Rule 10 CPC and the defendant No.1's application under Order VIII Rule 1 are concerned, this Court is inclined to condone the delay, mainly, on the reason that when the matter was listed on 12th September, 2012, it was recorded by the Court that the written statement was filed by defendant No.1 and the time was granted to the plaintiff to file the replication. The said order was passed in the presence of the learned counsel for the plaintiff. He did not raise any objection in that regard, although in the replication, the objection is taken subsequently. The application under Order VIII Rule10 CPC was filed after the expiry of more than four months. Secondly, it appears from the record that the parties were talking for settlement for certain period. It is not clear as to whether the said talks for settlement had started before filing of the written statement or after filing of the written statement by defendant No.1. Therefore, the benefit of such is granted to the defendant No.1 by coming to the conclusion that the case of defendant No.1 covers in the category of exceptional circumstances. Under these circumstances, the application filed by the plaintiff under Order VIII Rule10 CPC being I.A. No.940/2013 and the application filed by the defendant No.1 under Order VIII Rule1 CPC being I.A. No.4073/2013 are disposed of accordingly. Replication already filed is taken on the record.

14. Learned counsel for defendant No.2 has made the same arguments as the arguments addressed by the learned counsel for defendant No.1. However, it appears from the record that the written

statement was not filed more than one year. There is material on record to show that during this period, the parties were trying to resolve their disputes. But at the same time, I am of the view that defendant No.2 ought to have become vigilant to file the written statement. At least, defendant No.2 should have filed the application for extension of time in filing the written statement. Therefore, the application filed by defendant No.2 for condonation of delay in filing the written statement being I.A. No.15033/2013 is being allowed subject to cost as there is a long delay in filing of the written statement and there is no application for extension of time. Hence, the defendant No.2 is burdened with cost of Rs.50,000/- to be paid by defendant No.2 to the plaintiff. The written statement would be taken on record subject to the said cost which shall be paid by defendant No.2 to the plaintiff within four weeks from today. On receipt of the cost, the plaintiff will file the replication within four weeks thereafter.

15. The applications are accordingly disposed of. CS(OS) No.989/2012 The parties are granted four weeks time to file their original documents. List the matter before the Joint Registrar on 17th November, 2014 for admission/denial of the parties. Thereafter, the same be listed before Court on 21st January, 2015 for framing of issues.

(MANMOHAN SINGH) JUDGE AUGUST 08, 2014