M/S Visionaire India vs M/S Ibm India Pvt Ltd
2015 Latest Caselaw 379 Del

*      IN THE      HIGH COURT OF DELHI AT NEW DELHI

+                       CS(OS) 2822/2012

                                           Reserved on:      09.01.2015
                                           Date of decision: 15.01.2015

IN THE MATTER OF:
M/S VISIONAIRE INDIA                               ..... Plaintiff
                        Through: Mr. Anil K. Aggarwal, Advocate with
                        Mr. A.B. Singh, Advocate

                   versus

M/S IBM INDIA PVT LTD                            ..... Defendant
                     Through: Mr. C.M. Oberoi, Advocate with
                     Ms. Surekha Raman, Mr. Anuj Sarma and
                     Mr. Debarshi Bhuyan, Advocates

CORAM
HON'BLE MS.JUSTICE HIMA KOHLI

HIMA KOHLI, J.

O.A. No.303/2014 (Chamber Appeal by the defendant against the order dated 29.11.2014)

1. The present Chamber Appeal has been filed by the

defendant/appellant against an order dated 29.11.2014 passed by the

Joint Registrar, dismissing its application for seeking condonation of

delay of 59 days in filing the written statement (I.A. 15019/2013) and

the application for seeking condonation of delay of 169 days in re-filing

I.A. 15019/2013 (I.A. 15020/2013).

2. Before referring to the arguments advanced by the counsels for

the parties, it is considered necessary to refer to the relevant dates for

the purposes of examining the extent of delay on the part of the

defendant/appellant in filing the written statement and the delay in re-

filing the application for condonation of delay and the adequacy of the

explanation offered by the defendant.

3. As per the memo of parties, the plaintiff has furnished two

addresses of the defendant; the first address is that of its office at New

Delhi and the second one is of Bangalore, Karnataka. Summons in the

suit were issued on 18.09.2012, returnable on 27.02.2013. The

admitted position is that the Delhi office of the defendant had received

the summons on 19.11.2012 and the prescribed timeline of 30 days

for filing the written statement, if reckoned from 19.11.2012, would

have expired on 18.12.2012. However, the written statement came to

be filed on 18.02.2013. This was followed by an application filed by the

defendant/appellant under Section 151 CPC, praying inter alia for

condonation of delay of 59 days in filing the written statement.

However, the said application, registered as I.A. 15019/2013, was filed

by the defendant after two days, on 20.02.2013. The records reveal

that the said application was returned by the Registry due to some

defects and it was re-filed by the defendant's counsel on 25.02.2013.

4. On 27.02.2013, when the case was posted before the learned

Joint Registrar, the counsel had entered appearance on behalf of the

defendant. On the said date, the Joint Registrar had noted in the

order that the written statement of the defendant had been filed

beyond the prescribed timeline and it could not be taken on record.

He had also recorded the submission of the counsel for the defendant

that he had filed an application for seeking condonation of delay, which

would be listed in due course. On the said date, learned counsel for

the plaintiff had expressed his inability to conduct the admission and

denial of documents due to lack of instructions. As a result, the suit

was adjourned to 05.09.2013, for completion of pleadings and for

admission and denial of documents. Incidentally, I.A. 15019/2013 was

not listed thereafter and later on, it transpired that it had remained

under objections due to some more defects pointed out by the

Registry.

5. A perusal of the aforesaid application reveals that on 27.2.2013,

the Registry had raised further objections in respect of I.A.

15019/2013, one of them being that the number of days' delay had

not been specified in the prayer clause. It is the stand of the counsel

for the defendant that as an urgent application did not accompany the

aforesaid application, it was assumed that it would be listed in due

course and the aforesaid objection raised by the Registry at a later

stage, came to his notice only on 05.09.2013, the next date fixed

before the Joint Registrar when it was noticed that the said application

for seeking condonation of delay in filing the written statement was

not listed.

6. On 05.09.2013, the Joint Registrar had observed that in ordinary

circumstances, the failure on the part of the defendant to pursue its

application for condonation of delay would have called for an order

closing its right to file the written statement but the plaintiff was found

to be equally lacking in diligence for the reason that it had not filed the

original documents till the said date and the counsel, who had

appeared for the plaintiff was not even aware as to which of the

documents were to be put to the other side for purposes of admission

and denial. In view of the aforesaid position, last and final opportunity

was granted to the plaintiff to file their original documents within four

weeks, failing which it was directed that the said documents would be

taken on record subject to payment of costs of `5,000/-. It was also

clarified that once the original documents were filed by the plaintiff,

the defendant would file the affidavit by way of admission and denial

within the next four weeks. With the aforesaid directions, the case was

adjourned to 13.02.2014 for concluding the admission and denial of

documents.

7. It appears that thereafter, counsel for the defendant had

approached the Registry to verify the status of the application for

condonation of delay and, on being informed that it was lying under

objections, he had taken back the said application for removing the

objections. After removing the defects, the application was re-filed on

09.09.2013. Yet again the application was returned by the Registry

with another objection, which was also removed and it was re-filed on

10.09.2013. Finally, the said application came to be listed before the

Joint Registrar on 18.09.2013, alongwith I.A. 15020/2013, an

application filed by the defendant under Section 151 CPC for seeking

condonation of delay of 169 days in re-filing I.A. 15019/2013.

8. Notice was issued on the aforesaid applications on 18.09.2013.

Though replies to the applications were not filed by the plaintiff, they

were opposed by the counsel for the plaintiff on the ground that the

defendant/appellant had adopted a very casual approach in defending

the suit and the explanation for the delay of each and every day had

not been offered in the application. It was contended that the

explanation offered by the defendant for the delay was without any

basis and further, that no explanation had been offered for the delay

of 169 days in re-filing the application for condonation of delay.

9. After hearing the counsels for the parties, the impugned order

dated 29.11.2014 was passed by the learned Joint Registrar whereby

both the applications filed by the defendant were dismissed and

resultantly, the written statement was directed to be taken off the

record. Aggrieved by the aforesaid decision, the defendant/appellant

has filed the present appeal.

10. Mr. C.M. Oberoi, learned counsel for the defendant submitted

that the delay of 59 days in filing the written statement beyond the

period of 30 days as prescribed under Order VIII Rule 1 CPC was

unintentional and the circumstances due to which the delay had taken

place, had been duly explained in the application but were not taken

into consideration by the learned Joint Registrar while passing the

impugned order. He further stated that the explanation offered by the

defendant for seeking condonation of delay in re-filing I.A.

15019/2013 was also overlooked by the Joint Registrar and a perusal

thereof would reveal that there exists just and sufficient cause for the

Court to exercise its discretion in favour of the defendant by condoning

the delay. Lastly, it was submitted that though the prescribed timeline

of 30 days for filing the written statement had expired on 18.12.2012,

the written statement had been filed within the extended timeline of

60 days, which was to have expired on 18.02.2013, the date on which

it was actually filed.

11. Learned counsel for the defendant/appellant further stated that

the proceeding sheets will bear out the fact that the defendant had not

delayed the suit proceedings in any manner and it is on account of the

plaintiff's default that the admission and denial of documents could not

take place before the Joint Registrar on 27.02.2013 or for that matter,

on the next date, i.e., on 05.09.2013. He submitted that the

admission and denial of documents was finally concluded on

28.07.2014 and on the said date, I.A. 15019/2013 was listed before

the Joint Registrar but due to the absence of the counsel for the

defendant for bonafide reasons, the said application was dismissed in

default. However, later in the day on the very same date, learned

counsel for the defendant had appeared before the Joint Registrar,

explained the reasons for her non-appearance and requested for an

opportunity to argue the said application, which was duly acceded to

and the said application was restored by the Joint Registrar for

arguments.

12. Though an opportunity was granted to the plaintiff/respondent to

file a reply to the present chamber appeal, no reply has been filed.

However, Mr. Aggarwal, learned counsel for the plaintiff/respondent

strongly opposed the present appeal and submitted that the defendant

has not offered any justification for interfering in the order dated

29.11.2014. He reiterated the submission made by him before the

Joint Registrar to the effect that the defendant/appellant has adopted

a very casual approach in defending the present suit and urged that

even when the written statement came to be filed by it on the 90th

day, the same was not accompanied by an application for condonation

of delay, which came to be filed two days thereafter.

13. Learned counsel for the plaintiff highlighted the fact that the

defendant/appellant is a very big organization duly equipped with a

competent legal department and it ought to have contested the

present suit effectively and taken immediate measures to contact the

head office at Bangalore for drafting the written statement and filing

the same within the prescribed timeline. Instead, the defendant and its

officers chose to adopt a lackadaisical approach, for which the plaintiff

cannot be made to suffer.

14. Learned counsel for the plaintiff/respondent further urged that

the condonation of delay application does not furnish any satisfactory

reason, much less an explanation for each and every day's delay for

the Court to exercise its discretion in favour of the

defendant/appellant. Moreover, the said application had also remained

under objections for a period of 169 days, which by itself was stated to

be a sufficient reason to dismiss the same. It was next submitted that

I.A. 15020/2013 is also bereft of any reason for seeking condonation

of delay of 169 days in re-filing I.A. 15019/2013. In conclusion, it

was submitted that both the applications were rightly rejected by the

learned Joint Registrar. In support of his submission that the

defendant/appellant has not offered adequate reasons for the Court to

exercise its discretion in its favour and in those circumstances, the

application for condonation of delay of 59 days in filing the written

statement and of 169 days in re-filing the condonation of delay

application had been rightly rejected, learned counsel had relied on the

decision of the Supreme Court in the case of Mohammed Yusuf vs. Faij

Mohammad and Ors. reported as (2009) 3 SCC 513.

15. The Court has perused the averments made in the appeal and

examined the court record in the light of arguments advanced by

learned counsels for the parties.

16. The law on the scope of the Court exercising its discretion in

condoning the delay on the part of the defendant in filing the written

statement is no longer res integra. As was held by the Supreme Court

in the case of Kailash Vs. Nanku & Ors. reported as AIR 2005 SC

2441, ordinarily, the time schedule prescribed under Order VIII Rule 1

CPC ought to be adhered to and a prayer for extension of time made

by a defendant for filing of a written statement 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 and that extension of time may be

allowed by way of an exception, for reasons to be assigned by the

defendant and placed on record in writing. Thus extension of time can

be allowed under exceptional circumstances, caused by reasons

beyond the control of the defendant and where grave injustice would

be occasioned if time was not extended.

17. In the present case, a perusal of I.A. 15019/2013, the

application filed by the defendant/appellant for seeking condonation of

delay of 59 days in filing the written statement reveals that the

explanation offered for the delay is that the summons were served at

the Delhi office of the defendant, where only their Research Centre is

situated and the same were forwarded to the head office of the

defendant situated at Bangalore. On receipt of the said summons, the

plaint and the documents, the defendant had contacted their local

lawyer. It is averred that as the agreement between the parties was

executed at Bangalore and the supplies were made at Delhi and the

records of the case were partly maintained in the Delhi office and

partly at the head office at Bangalore and further, as the documents in

question related to a period of over five years and some of the officers

dealing with the matter were no longer in service, it had taken some

time for the defendant to gather the documents, identify the

concerned officers, who were dealing with the matter and collate the

information for furnishing the same to the advocate in Delhi, for

preparing the written statement, which was so done in the end of

December, 2012. The draft written statement was dispatched by the

advocate to the Bangalore office of the defendant in the second week

of January, 2013 and after the same was perused and approved by the

officers at Bangalore, who were dealing with the matter as also their

local lawyer, the same was finalized, signed and dispatched to the

counsel for the defendant at Delhi, in the second week of February,

2013.

18. A perusal of the copy of the written statement filed with the

present appeal reveals that the same was verified at Bangalore on

08.02.2013. Learned counsel for the defendant/appellant has stated

that he had received the same from Bangalore in the second week of

February, 2013 and filed it on 18.02.2013. By that date, the counsel

had not received the application for condonation of delay.

Subsequently, the said application, supported by the affidavit of the

authorized signatory and sworn before the Oath Commission on

16.02.2013, was received by the counsel in Delhi and filed on

20.02.2013. In the above circumstances, the defendant/appellant had

sought to explain the delay of 59 days in filing the written statement.

19. When the aforesaid application was filed in the Registry, some

deficiencies were pointed out by the Registry, which were removed by

the counsel for the defendant and the said application came to be

re-filed on 25.02.2013. It appears that the counsel for the defendant

had remained under the impression that as all the objections raised by

the Registry in the first round had been removed, the application

would be listed before the Court/Joint Registrar in due course. But that

did not happen and only when the suit was listed before the Joint

Registrar on 27.02.2013, did the counsel for the defendant discover

that the condonation of delay application was not in the court file. He

had then informed the learned Joint Registrar that he had already filed

the condonation of delay application, which would be listed in due

course.

20. It is the stand of the counsel for the defendant/appellant that

the initial deficiencies pointed out by the Registry did not include an

objection as to non-mentioning of the number of days' delay in the

prayer clause and later on, when the said application was re-filed on

25.02.2013, an objection to the said effect was raised by the Registry

for the first time and resultantly, he had remained unaware of the said

position till 05.09.2013, the date that was fixed on 27.02.2013.

However, only on 05.09.2013, when the Joint Registrar had observed

that the condonation of delay application had not been listed, did the

counsel for the defendant take steps to contact the Registry, only to

discover that the deficiency had been pointed out later on. The said

application was taken back for removing the objections and it was re-

filed on 09/10.09.2013. Simultaneously, the defendant took steps to

file an application for seeking condonation of delay of 169 days in re-

filing I.A. 15019/2013, explaining inter alia the manner in which the

matter had proceeded and the fact that the counsel had remained

under the bonafide impression that all the objections raised by the

Registry had been removed and the application having been re-filed,

would be listed in due course on 05.09.2013.

21. The Court has examined the averments made in both the

applications and perused the court records in the light of the

submissions made by the counsel for the defendant/appellant and it is

of the opinion that the defendant did offer adequate reasons for filing a

belated written statement and no malafides can be attributed to it for

not filing the same on the appointed date. The submission of the

counsel for the plaintiff that the defendant/appellant ought to have

supported the condonation of delay application with sufficient evidence

to demonstrate as to which of the documents relevant for the

preparation of the written statement were in Delhi and which of them

were in Bangalore and who were the officers, who were dealing with

the matter and had retired from service and who were the ones, who

were available for gathering and analyzing the documents for drafting

the written statement, would be stretching things too far.

22. The reasons offered by the defendant/appellant for seeking

condonation of delay of 59 days beyond the prescribed period of 30

days are found to be just and sufficient and given such reasons, this

Court is of the opinion that in the interest of justice, the delay in filing

the written statement ought to have been condoned by the learned

Joint Registrar.

23. Another reason that has weighed with the Court while allowing

the application for condonation of delay in filing the written statement

is that the conduct of the plaintiff is also not taintless which is borne

out from the order dated 27.02.2013, wherein it was recorded by the

Joint Registrar that admission and denial of documents could not be

conducted due to lack of instructions on the part of the counsel for the

plaintiff. Yet again, telling remarks were made against the plaintiff in

the order dated 05.09.2013 when the Joint Registrar had observed

that in ordinary circumstances, he would have been inclined to pass an

order, closing the right of the defendant to file the written statement,

but the plaintiff was found to be equally lacking in diligence as it had

not taken any steps to file the original documents till the said date and

the counsel, who had appeared on its behalf, was not even aware as to

which of the documents were to be put to the other side for the

purposes of conducting admission and denial.

24. Despite the lack of diligence demonstrated on the part of the

plaintiff/respondent, permission was granted to it to file the original

documents within four weeks with a caveat that if the said documents

would be filed beyond the prescribed timeline, then the same would be

taken on record subject to payment of costs. It was only thereafter

that the plaintiff had taken steps to file the original documents.

Therefore, the plaintiff cannot blame the other side for delaying the

suit proceedings. Rather, the records reveal that the defendant had

taken timely steps to file the affidavit of admission/denial of

documents, without seeking any adjournment and the said process

stood concluded on 28.07.2014.

25. Coming to the decision in the case of Mohammed Yusuf (supra)

cited by learned counsel for the plaintiff, this court is of the opinion

that the same cannot be of any assistance to the plaintiff in the given

facts. The said judgment refers to the earlier decision of the Supreme

Court in the case of Kailash (supra) and two other decisions, namely,

Aditya Hotels (P) Limited Vs. Bombay Swadeshi Stores Limited & Ors. .

reported as AIR 2007 SC 1574 and R.N. Jadi and Brothers and Ors.

vs. Subhashchandra reported as (2007) 6 SCC 420 and reiterates the

well settled position that grant of extension of time beyond 30 days to

file the written statement is not automatic and the discretion should be

exercised by the courts with caution and for adequate reasons.

26. As per the facts of the aforecited case, the concerned High Court

had allowed a petition filed by the respondent/defendant questioning

the order passed by the learned ADJ in the civil revision affirming the

order of the Civil Judge, whereunder while rejecting the application

filed by the appellant/plaintiff under Order VIII Rule 1 CPC, a date was

fixed for recording the evidence and simultaneously, the respondent's

application for condonation of delay in filing the written statement was

rejected. The High Court had allowed the petition of the

respondent/defendant therein and directed that his written statement

be taken on the record, subject to costs. However, the Supreme Court

had set aside the order of the High Court on the ground that no

reasons were assigned while setting aside the orders of the trial court

and the revisional court.

27. The decision in the case of Mohammed Yusuf (supra) is based on

its own facts. What is relevant to note in the said case is that after

being served with the summons in the suit on 06.07.2002, the

respondent/defendant therein had taken a period of three years to file

the written statement and that too, without an accompanying

application for seeking condonation of delay. That is not the situation

here. The defendant/appellant herein has filed the written statement

within the extended period of 90 days and the application for

condonation of delay was filed by it within two days thereafter.

28. In the given facts, when sufficient indulgence was granted to the

plaintiff/respondent on two occasions, by extending the time for it to

file the original documents, there is no good reason as to why this

court ought not to exercise its discretion in favour of the

defendant/appellant by condoning the delay in filing the written

statement in view of the explanation offered for the delay, which has

been found to be just and sufficient.

29. Coming next to the explanation offered by the defendant/

appellant for seeking condonation of delay of 169 days in re-filing I.A.

15019/2013, this Court is of the opinion that the defendant's counsel

ought to have been more vigilant in pursuing the said application,

knowing very well that adverse orders were likely to be passed if the

said application was not on record. To state that it was expected that

the said application would have been listed in due course, is not

enough. When the application was filed on 25.02.2013, and it did not

get listed for months together, alarm bells should have rung and

learned counsel ought to have taken timely steps to verify its status

from the Registry, instead of continuing to wait for the next date of

hearing to arrive after six months. In such circumstances, the

plaintiff/respondent ought to be compensated by mulcting the

defendant/appellant with costs for the avoidable delay in getting IA

No.15019/2013 listed for appropriate orders.

30. Accordingly, the present chamber appeal is allowed and the

order dated 29.11.2014 passed by the Joint Registrar is set aside. The

delay of 59 days beyond the prescribed period of 30 days in filing the

written statement, as per IA No.15019/2013 and the delay of 169 days

in re-filing I.A. 15019/2013, as per IA No.15020/2013 is condoned,

subject to the condition that the defendant/appellant shall pay costs of

`30,000/- to the plaintiff/respondent through counsel within two weeks

from today. It is clarified that non-payment of the costs imposed

above within the period fixed shall result in the revival of the

impugned order.

                                                        (HIMA KOHLI)
JANUARY 15, 2015/rkb                                       JUDGE