Akansha Enterprises vs Additional Secretary & D.G Cghs
2014 Latest Caselaw 4489 Del

$~66.
*     IN THE HIGH COURT OF DELHI AT NEW DELHI
+        CS(OS) 520/2013
%                                         Date of decision : 16nd September, 2014
         AKANSHA ENTERPRISES                                            ..... Plaintiff
                     Through :              Mr.C.M. Verma, Adv.

                              versus

         ADDITIONAL SECRETARY & D.G CGHS                                ..... Defendant
                      Through : Mr.Rajat Gaur, Adv.


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

G.S.SISTANI, J. (Oral)

1. Plaintiff has filed the present suit for recovery of Rs.25,19,754/- with interest at the rate of 18%, per annum, from the date of receipt of unpaid bills till their realization. The plaintiff also prays for pendente lite interest.

2. Summons in the suit were issued on 18.3.2013. Defendant was duly served on 16.4.2013. On 12.8.2014, when the matter was listed, learned counsel for the defendant had informed the Joint Registrar that he intends to file his Vakalatnama along with written statement and an application seeking enlargement of time for filing written statement. The matter was adjourned to 15.11.2013, however, on account of holiday being declared on 15.11.2013, the matter was taken up on 21.11.2013, on which date the learned Presiding Officer was on leave and the matter was adjourned to 26.2.2014, when none appeared for the defendant nor written statement was filed. Thus, the right of the defendant to file written statement was closed on 26.9.2014. The matter was adjourned to 4.7.2014 when

admission/denial of documents was not conducted by the defendant. The matter was placed before Court on 8.9.2014, on which date the matter was adjourned to enable the plaintiff to place original documents on record. It may be noticed that on 8.9.2014, learned counsel for the defendant had orally submitted that he had filed "brief submissions" on behalf of the defendants along with an affidavit on 5.9.2014". Today the said "brief submissions" on behalf of the defendant is on record. Perusal of brief submission shows that it was filed in the registry on 5.9.2014, however, the same was returned back and the same was re-filled in the Registry on 11.9.2014. Even if this brief submission is to be treated as a written statement, the same has not been filed within the time allowed, not any application seeking enlargement of time has been filed. The plaintiff prays for a decree under Order VIII Rule 10 CPC as after being duly served as far back as on 16.4.2013 the defendant has chosen not to file written statement within the time allowed nor any application for enlargement of time has been filed.

3. The order sheets reveal that the defendant was served on 16.04.2013.

Time was sought to file vakalatnama and written statement. Till date no written statement has been filed. The defendant has placed brief submissions on record on 05.09.2014. No application has been filed under Order VIII Rule 1 CPC by the defendant.

4. As per the plaint, plaintiff is a partnership firm and is an authorised dealer of M/s Ranbaxy Laboratories Limited for Ranbaxy Urology Division and was duly authorised to supply products and goods manufactured by Ranbaxy Laboratories Limited. By a letter no.17/07 dated 29.3.2007 the plaintiff sought registration with defendant CGHS as a supplier of certain medicines, namely, Eligard 22.5 mg and Eligard 45 mg. In response to the said letter dated 29.3.2007, defendant granted approval to the plaintiff for

supply of aforesaid medicines, subject to the plaintiff furnishing an undertaking to the effect that his rates are the lowest. Original letter dated 7.5.2007 received by the plaintiff from the defendant has been filed on record.

5. Further as per the plaint, the plaintiff started supplying medicines to the defendant from time to time against which payments were made to the plaintiff. Subsequently, two medicines, namely, CALURAN CP and NEURONOX were also added in the supply portfolio of the plaintiff. During the period November, 2010, to February, 2011, the plaintiff continued to supply medicines to the defendants against various indents/orders placed by the defendants, for which the plaintiff raised invoices in the total sum of Rs.25,19,754/- but no payments were made by the defendant. A summary of invoices has been placed on record.

6. It is also the case of the plaintiff that various oral requests were made to the defendant to release the payments. The plaintiff also contacted responsible officers of the defendant such as Dr.Hari Kishan, Additional Director, MSD (CGHS); Dr.Chatterjee and Dr.Arneja for release of the amounts. On 25.2.2011 written request was also made by the plaintiff to the Director, CGHS, Nirman Bhawan, with a copy to Additional Director, MSD, Gole Market, however, the amounts due were not released in favour of the plaintiff. A copy of the letter dated 25.2.2011 addressed to the Director has been placed on record.

7. The plaintiff thereafter made an application under Right to Information Act seeking to ascertain as to the reasons for not making the payments by the defendant. In reply to the query raised, the defendant admitted the liability of outstanding payment by informing the plaintiff that the outstanding payments have not been stopped but the same have been kept in abeyance. Original application filed under Right to Information Act and

reply thereto has been placed on record. A reminder was also sent by the plaintiff to Additional Secretary & D.G. (CGHS) on 24.1.2012 and 15.4.2012, copies of which have been placed on record, to clear the dues, however, no payments were made to the plaintiff.

8. Learned counsel for plaintiff submits that on 7.5.2012 the plaintiff again sought certain information under Right to Information Act. Counsel contends that in reply to the said query, the plaintiff was informed by the defendant vide communication dated 23.5.2012 as under:

               S.No.        Information Sought                   Reply
              1.       Copy                        of   No complaint against
                       complaint/complaints, if any,    M/s.Aakansha Enterprises,
                       against      M/s.     Aakansha   Dwarka made during last
                       Enterprises, Dwarka, made        5 years.
                       during last 5 years for any
                       irregularities.
              2.       Copy of FIR, if any lodged       No FIR is lodged against
                       against      M/s      Aakansha   M/s Aakansha Enterprises,
                       Enterprises, Dwarka from the     Dwarka from the last 5
                       last 5 years for any             years.
                       pilferage/irregularities.
              3.       Copy of orders of any            No such order is available
                       recovery made for any lapses     in MSD, Delhi.
                       against      M/s      Aakansha
                       Enterprises, Dwarka.

9. The plaintiff thereafter issued a legal notice dated 24.7.2012 to the defendant, however, neither the legal notice was replied to nor the payments were made to the plaintiff.

10. I have heard learned counsel for the parties and also perused the

documents placed on record. In this case, the defendant was duly served on 16.4.2013. No written statement was filed within the time allowed i.e. thirty days or even ninety days. Brief submissions were filed on 5.9.2014. No application seeking extension of time has been filed.

11. A three-Judge Bench of the Hon'ble Supreme Court in Kailash vs. Nanhku and Ors. reported at AIR 2005 SC 2441 , the nature and effect of Order VIII Rule 1 and the proviso thereto was considered. It was observed by the Apex court, in paragraphs 42 to 45 of the case at page 499 as follows:

"42. Ordinarily, the time schedule prescribed by Order 8 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 defense 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 the 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 8 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 an 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, shall the defendant 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 the 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 8 Rule 1 shall be the rule and departure there from an exception, made for satisfactory reasons only. We hold that Order 8 rule 1, though couched in mandatory form, is directory being a provision in the domain of processual law."

12. The Supreme Court in the case of Kailash (supra) has underlined that Order VII Rule 1 CPC is to be strictly applied and extension of time of thirty days or ninety days should not be granted in a routine manner and merely on the asking. Extension is to be granted only in exceptional cases and when the period of nine days has expired extension can be granted by way of exception and for reasons to be recorded in writing. Moreover, a prayer seeking extension beyond ninety days ought to be made in writing. Till date no application seeking extension has been filed.

13. Even otherwise, the only ground taken by counsel for the defendant is that the defendant is unable to file written statement as the defendant does not

have the documents in its possession, as the same have been seized by the Crime Branch. Sufficient time has elapsed from the time the defendant was served with the summons. The defendant could well have apprised the crime branch and obtained certified copies. There is nothing on record to show the steps taken in this regard.

14. In para 8 of brief submissions the defendant has stated that in the absence of complete records defendants are not able to reply and assist this Court and crave liberty for filing detailed written statement after getting the complete records from crime branch. Para 8 of the brief submissions reads as under:

"8. That the matter was brought to the knowledge of higher authorities and the payment to the firm was withheld till further orders. In the absence of complete records defendants are not able to reply and assist this Hon'ble Court and crave the liberty for filing detail written statement after getting the complete records from crime branch."

15. In the absence of the written statement the averments made in the plaint are deemed are deemed to be admitted. Moreover the plaintiff has placed on record the original copy of the letter no. 17/07 dated 29.03.2007 to show that plaintiff sought registration with the defendant for supply of medicines. In response there to the defendant vide letter dated 07.05.2007 granted approval. Copies of bills have been placed on record. In response to the query raised under the RTI Act the defendant informed the plaintiff that the payment have not been stopped but kept in abeyance.

16. Having regard to the submissions made and taking into consideration the reply to RTI query, which shows that there is no complaint/FIR against the plaintiff during the last five years, and in the absence of any written statement, the averments made in the plaint are taken to be correct.

Accordingly, the suit stands decreed in favour of the plaintiff and against the defendant in the sum of Rs.25,19,754/- together with pendente lite and future interest at the rate of 8%, per annum with costs. Let a decree sheet be drawn up accordingly.

G.S.SISTANI, J SEPTEMBER 16, 2014 msr