Delhi High Court
M/S Zx Sources (P) Ltd vs Arvind Kumar Goyal & Anr on 18 November, 2015
Author: Pratibha Rani
$~47
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Date of Decision : 18th November, 2015
+ CM(M) 1133/2015
M/S ZX SOURCES (P) LTD ..... Petitioner
Through: Mr.H.C.Kharbanda, Mr.T.M.Saxena
and Mr.Vipin K.Saxena, Advocates.
versus
ARVIND KUMAR GOYAL & ANR ..... Respondents
Through: Mr.P.K.Rawal and Mr.Tarun
Aggarwal, Advocates.
PRATIBHA RANI, J. (Oral)
CM No.27259/2015
1. Exemption allowed, subject to all just exceptions.
2. Application stands disposed of.
CAV.No. 1204/2015
Since counsel for the respondents-caveators has appeared, caveat
stands discharged.
CM(M) 1133/2015
1. The petitioner, who is defendant in Civil Suit No.125/2015, is
aggrieved by the order dated 13th August, 2015 whereby the right of the
petitioner to file the written statement has been closed by the learned Trial
Court for the reason that the written statement has not been filed within the
stipulated period.
2. Mr.P.K.Rawal, Advocate for the respondents accepts notice.
3. I have heard learned counsel for the parties and carefully gone
through the record.
4. Learned counsel for the petitioner/defendant has submitted that the
reason for not being able to file the written statement was that the counsel
had gone to take 'kanvar' which has not been considered as sufficient and
plausible explanation by learned Trial Court. It has been further submitted
that in the facts and circumstances, one opportunity may be granted to the
petitioner to file the written statement subject to the conditions deemed fit
by this Court.
5. Mr.P.K.Rawal, learned counsel for the respondents has submitted that
the petitioner, who is defendant in Civil Suit No.125/2015, has been served
with summons on 26.04.2015. The written statement could have been filed
by the petitioner within 30 days from the date of service of summons though
the petitioner put in appearance before the learned Trial Court on 15.05.2015
but failed to file the written statement either on the date of hearing or within
the period prescribed. It has been further submitted that the petitioner failed
to file any application seeking extension of time to file the written statement
which could have been extended upto 90 days. The defence of the petitioner
has been struck off on 13.08.2015 which was much after the expiry of period
of 90 days, hence the petition may be dismissed.
6. I have considered the submissions made on behalf of the petitioners.
7. Order VIII Rule 1 CPC provides 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 summons.'
8. The principles governing the discretion of the Court while considering
an application under Order VIII Rule 1 CPC have been detailed in the
decision reported as Mohammaed Yusuf v. Faij Mohammd & ors. (2009) 3.
Paragraphs 10 and 11 of the report are extracted herein:
" 10. The question came up for consideration before this Court
in M. Srinivasa Prasad and Ors. v. The Comptroller & Auditor
General of India and Ors. MANU/SC/1638/2007 :
AIR2007SC1574 , wherein a Division Bench of this Court upon
noticing Kailash (supra) held as under:
"7. Since neither the trial Court nor the High Court
have indicated any reason to justify the acceptance
of the written statement after the expiry of time
fixed, we set aside the orders of the trial Court and
that of the High Court. The matter is remitted to the
trial Court to consider the matter afresh in the light
of what has been stated in Kailash's case(supra).
The appeal is allowed to the aforesaid extent with
no order as to costs."
11. The matter was yet again considered by a three-judge
Bench of this Court in R.N. Jadi & Brothers and Ors. v.
Subhashchandra. P.K. Balasubramanyan J., who was also a
member in Kailash in his concurring judgment stated the law
thus:
"14. It is true that procedure is the handmaid of
justice. The court must always be anxious to do
justice and to prevent victories by way of technical
knockouts. But how far that concept can be
stretched in the context of the amendments brought
to the Code and in the light of the mischief that
was sought to be averted is a question that has to
be seriously considered. I am conscious that I was
a party to the decision in Kailash v. Nanhku which
held that the provision was directory and not
mandatory. But there could be situations where
even a procedural provisional could be construed
as mandatory, no doubt retaining a power in the
Court, in an appropriate case, to exercise a
jurisdiction to take out the rigour of that
provision or to mitigate genuine hardship. It was
in that contest that in Kailash v. Nanhku it was
stated that the extension of time beyond 90 days
was not automatic and that the court, for reasons
to be recorded, had to be satisfied that there was
sufficient justification for departing from the
time-limit fixed by the Code and the power
inhering in the court in terms of Section 148 of
the Code. Kailash is no authority for receiving
written statement, after the expiry of the period
permitted by law, in a routine manner. (emphasis
placed).
15. A dispensation that makes Order 8 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 emphasise 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 8 Rule 1 must be adhered to and that only
in rare and exceptional case, will 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 v. Sir Alfred
McAlpine & Sons that law's delay 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. In the instant case, the petitioner/defendant failed to file the written
statement within 30 days or seek extension of time by explaining the
circumstances under which he could not file the written statement within the
prescribed time limit. The period of 90 days from the date of service had
expired in July 2015 itself whereas the oral request for extension of time to
file the written statement was made by brother of the owner of the
petitioner/defendant M/s ZX Sources (P) Ltd. on 13.08.2015 which was
declined. The application seeking condonation of delay in filing the written
statement has been filed only on 15.10.2015 which has been disallowed.
10. It is pertinent to note here that in this petition, only the order dated
13.08.2015 has been challenged whereby the oral request made by brother of
owner of the petitioner/defendant company for extension of time to file the
written statement has been declined by the learned Trial Court.
11. The impugned order does not suffer from any illegality or perversity.
The petition is dismissed.
12. No costs.
CM No.27258/2015
Dismissed as infructuous.
PRATIBHA RANI, J.
NOVEMBER 18, 2015
'st'
