Delhi High Court
M/S Jain Technologies vs M/S Salora International Ltd on 12 September, 2017
$~61
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ CM(M) 1000/2017
M/S JAIN TECHNOLOGIES ..... Petitioner
Through: Ms. Akanksha & Mr. Narendra
Prasad Yadav, Advs.
Versus
M/S SALORA INTERNATIONAL LTD ..... Respondent
Through: None.
CORAM:
HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW
ORDER
% 12.09.2017
CM No.33248/2017 (for exemption)
1. Allowed, subject to just exceptions.
2. The application is disposed of.
CM No.33249/2017 (for condonation of 25 days delay in re-filing the
petition)
3. For the reasons stated, the delay is condoned.
4. The application is disposed of.
CM(M) 1000/2017 & CM No.33247/2017 (for stay)
5. This petition under Article 227 of the Constitution of India impugns
the order [dated 16th May, 2017 in Civil Suit No.11724/2016 of the Court of
Additional District Judge-01 (ADJ) (South-East), Saket Courts, New Delhi]
striking off the defence of the petitioner for non-filing of the written
statement.
6. The counsel for the petitioner has argued that though the suit from
which this petition arises was instituted in the year 2012 but the petitioner
was proceeded against ex parte in the suit and applied for setting aside of the
ex parte and which application was allowed on 17th February, 2017 when the
following order was passed:
"Ld. Counsel for plaintiff submitted that he has already filed the
reply to the defendant‟s application under Order IX rule 7 CPC, however to
cut short the further delay, as matter was initially filed in the year 2012, he
has no objection if the application is allowed subject to heavy cost.
Considering the submissions and averment of application and in the
interest of justice, application of defendant filed under Order IX rule 7 CPC
is allowed subject to cost of Rs.10,000/- to be paid to the plaintiff. WS be
filed within stipulated period as per the provisions of CPC with advance
copy to other side and after receiving the advance copy of WS, advance
copy of replication be also supplied.
At this stage, Ld. Counsel for both the parties request for referring
the matter to mediation to explore the possibility of settlement.
In view of submissions, matter is referred to Mediation Centre, Saket
Courts, New Delhi for 04.03.2017 at 10:30 am. Parties to appear there.
Put up on 16.05.2017 to apprise mediation status / filing of WS,
replication, admission / denial of documents and for framing of issues."
7. Admittedly, the written statement was not filed within the stipulated
period as per CPC and not even on 16th May, 2017 when the following order
was passed:
"Ld. Counsel for defendant submits that matter could not be settled
in mediation.
A cheque of Rs.10,000/- of earlier imposed cost paid by the
defendant to AR of plaintiff company.
Ld. Counsel for defendant submits that written statement could not
be got signed from the defendant which he has prepared and advance copy
had not yet been supplied.
On 17.02.2017 defendant was directed to file written statement
within stipulated period. Same has not been done. No application has been
moved for extension of time for filing written statement. Defence of
defendant is struck off.
Put up for plaintiff‟s evidence on 14.08.2017. Advance copy of
affidavit in evidence be supplied within 15 days to defendant / counsel."
8. The counsel for the petitioner has argued that written statement was
not filed owing to the pendency of mediation.
9. Mediation is not intended to be a dilatory tactic in a suit and if
pendency of mediation proceedings without any explicit order suspending
the time for filing the written statement were to be construed as
automatically suspending the time for filing of written statement, the parties
/ counsels would hesitate to agree to mediation, affecting the efficacy
thereof. In the present case, there was no order suspending the time for
filing the written statement during the pendency of the mediation.
10. Worse still is the conduct of the petitioner / defendant in impugning
the order dated 16th May, 2017 after nearly four months therefrom,
notwithstanding the suit having been ordered to be listed on 14th August,
2017 for the evidence of the respondent / plaintiff.
11. The counsel for the petitioner / defendant on enquiry states that the
respondent / plaintiff led his evidence on 14th August, 2017 and now the suit
is listed next on 24th November, 2017 for cross-examination of the witness
of the respondent / plaintiff by the petitioner / defendant.
12. It is not understandable that once the defence of the petitioner
/defendant has been struck off, why the long date for cross-examination by
the petitioner / defendant was given.
13. The counsel for the petitioner / defendant has also argued that in fact
the written statement had been prepared before 16 th May, 2017 but had not
been signed by the proprietor of the petitioner / defendant.
14. If the written statement was ready, the petitioner / defendant in
accordance with the judgment in Sada Ram Vs. Delhi Development
Authority AIR 1979 Del 35 and Kiddy Palace Vs. State Bank of India 1997
SCC OnLine P&H 147 even after the order striking off its defence could
have applied to the learned ADJ immediately on the next or the following
day for taking the written statement on record and for recalling the order of
striking off. However nothing of the sort was done and the petitioner /
defendant has waited for four months and has allowed the date fixed for
evidence of the respondent / plaintiff to also go by and has preferred this
petition also after much delay. The said conduct of the petitioner/defendant
clearly shows the dilatory tactics having been practised and which conduct
cannot be perpetuated by granting any further indulgence.
13. There is no merit in the petition.
Dismissed.
No costs.
RAJIV SAHAI ENDLAW, J
SEPTEMBER 12, 2017
„gsr‟..
