Delhi High Court
Annex Die Casting vs Samir Kumar Pal on 21 December, 2021
Digitally Signed
By:DHIRENDER KUMAR
Signing Date:24.12.2021 18:31:42
$~31
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of decision: 21st December, 2021
+ C.R.P. 100/2021
ANNEX DIE CASTING ..... Petitioner
Through: Mr. Subodh Kumar Jha, Advocate
(M: 9971817545)
versus
SAMIR KUMAR PAL ..... Respondent
Through: Ms. Kushika Chachra, Advocate
CORAM:
JUSTICE PRATHIBA M. SINGH
Prathiba M. Singh, J. (Oral)
1. This hearing has been done in physical Court. Hybrid mode is
permitted in cases where permission is being sought from the Court.
CM APPL. 46572/2021 (for exemption)
2. Allowed, subject to all just exceptions. Application is disposed of.
CRP 100/2021 & CM APPL. 46571/2021 (for stay)
3. This is a petition challenging the impugned order dated 4th March,
2021 passed by the Ld. Principal District & Sessions Judge, South West
District, Dwarka Courts, New Delhi (hereinafter "trial court") in CS No.
112/2019 titled Samir Kumar Pal v. Annex Die Casting vide which the
written statement of the Petitioner/Defendant (hereinafter "Defendant") has
been struck off the record by the trial court.
4. The background of the case is that the suit was filed by the
Respondent/Plaintiff (hereinafter "Plaintiff") seeking recovery of Rs.
1,21,355/- with pendent lite and future interest @24% per annum till the
date of realisation along with cost of the suit. Initially, summons were issued
to the defendant in the suit on 24th January 2019 but since the process fee
Digitally Signed
By:DHIRENDER KUMAR
Signing Date:24.12.2021 18:31:42
was not filed by the Plaintiff, one more opportunity was granted to the
Plaintiff by the trial court vide order dated 20th April, 2019, in the interest of
justice for taking steps and file process fee. The Defendant is stated to have
been served on 18th May, 2019. However, the defendant did not appear on
the next date of hearing, i.e., 29th May, 2019 and last opportunity was
granted by the court to the Defendant to appear before the court and file
reply. An application for appearance was filed on 4th June 2019 by the
Defendant presuming the suit to be under Order XXXVII CPC. On 3rd
August 2019 it was clarified by the court that the suit was an ordinary suit
for recovery and last opportunity was granted to the Defendant to appear and
file the written statement with advance copy to the opposite party for 26th
September 2019. Notably, on the said date i.e., 3rd August 2019, though the
counsel for the Defendant had entered appearance, his appearance was
inadvertently marked on behalf of the SDMC, which was not even a party to
the matter. This error was rectified on 26th September, 2019 and matter was
adjourned to 21st November, 2019 for taking on record the written statement.
On 21st November, 2019 written statement was filed by the Defendant and a
copy of the same was supplied to the Plaintiff. Time was also granted to the
Plaintiff to file replication to the same. Ld. Counsel for the Petitioner was
present at that hearing when the WS filed by the Defendant was taken on
record. The said order reads as under:
"21.11.2019 CS. No.112/19
Samir Kumar Pal Vs. Annex Die Casting
Present: Sh. Sanjeev Sharma, Ld. Counsel for
plaintiff.
Sh. B.K. Jha, Ld. Counsel for defendant.
Digitally Signed
By:DHIRENDER KUMAR
Signing Date:24.12.2021 18:31:42
WS filed on behalf of defendant. Copy of
same is supplied.
Replication, if any be filed within 15 days
from today.
Put up for framing of issues on 12.12.2019."
5. Thereafter, the matter was listed before the trial Court on 12th
December, 2019 and 13th February, 2020. However, no objection was taken
by the Plaintiff in respect to the belated filing of the written statement by the
Defendant. The objection was taken for the first time by the Plaintiff on 17th
September, 2020 that the written statement was filed belatedly when the
matter was fixed for the framing of issues. On the basis of this objection, an
application was filed by the Plaintiff to take the written statement off the
record as the same was not filed within the prescribed time envisaged in
Order VIII Rule 1. By that time, the pleadings were completed in the matter.
By the impugned order, the Court took the written statement off the record
after relying on the judgment of the Supreme Court in Kailash vs. Nankhu
(2005) 4 SCC 480 as also the judgment of this Court in Shyam Sunder vs.
Shikha Arora CRP No. 63/2020.
6. Counsel for the Defendant submits that the initial misunderstanding
was under the impression that the suit was under Order XXXVII and
summons for judgment had to be filed by the Plaintiff. As soon as the said
impression was corrected by the trial court on 3rd August 2019 and the
opportunity was given to file the written statement, the same was filed
promptly. He submits that no objection was taken initially by the Plaintiff. It
is only almost after a year the objection related to belated filing of the
written statement have been raised by the Plaintiff. He further submits that
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By:DHIRENDER KUMAR
Signing Date:24.12.2021 18:31:42
there was no intention on the part of the Defendant to delay the proceeding
before the trial court and the delay in filing written statement deserves to be
condoned.
7. On the other hand, counsel for the Plaintiff submits that summons
were served on the defendant 18th May, 2019 and the statutory time for
filing the written statement expired by the time written statement was filed
by the Defendant. There was no application for condonation of delay
accompanying the written statement filed beyond the statutorily permissible
period under CPC. No explanation was given as to why the delay ought to
be condoned. Accordingly, the correct view has been taken by the trial Court
striking the written statement filed by the Defendant off the record of the
court.
8. This Court has perused the impugned order as also the various orders
passed by the trial Court. It appears that there was a genuine
misunderstanding on the part of the Defendant that the suit was in fact under
Order XXXVII. Thereafter, appearance of the ld. Counsel for the Defendant
was wrongly recorded which corrected and on 21st November, 2019 the
written statement was finally filed. If the time is computed from the date of
service of summons upon the Defendant i.e., 18th May, 2019 the written
statement has been filed within a period of six months. Though there is no
doubt that the said period is beyond the statutory period provided in the
CPC, the judgment of the Hon'ble Supreme Court in Kailash vs. Nankhu
(supra) permits that in exceptional situations, the delay in filing the written
statement beyond the statutorily permissible limit can be condoned. The
relevant portion of judgment is as under-
Digitally Signed
By:DHIRENDER KUMAR
Signing Date:24.12.2021 18:31:42
"We sum up and briefly state our conclusions as under-
xxx xxx xxx
(v) Though Order VIII, Rule 1 of the CPC is a part of
Procedural Law and hence directory, keeping in view
the need for expeditious trial of civil causes which
persuaded the Parliament to enact the provision in its
present form, it is held that ordinarily the time
schedule contained in the provision is to be followed as
a rule and departure therefrom would be by way of
exception. A prayer for extension of time made by the
defendant shall not be granted just as a matter of
routine and merely for asking, more so when the period
of 90 days has expired. Extension of time may be
allowed by way of an exception, for reasons to be
assigned by the defendant and also be placed on
record in writing, howsoever briefly, by the Court on
its being satisfied. Extension of time may be allowed
if it was needed to be given for the circumstances
which are exceptional, occasioned by reasons beyond
the control of the defendant and grave injustice
would be occasioned if the time was not extended."
9. The judgment of the Hon'ble Supreme Court in Kailash v. Nankhu
(supra) has been relied upon by this Court in Mothers Pride Education
Institution Pvt. Ltd. v. Shukla Sehgal, 283 (2021) DLT 101 wherein it was
observed:
"36. Therefore, both in Ordinary Suits and in
Commercial Suits, the defendant has to file the Written
Statement within 30 days from the date of service of
summons on him. In case of his failure to do so, the
Court is empowered to allow the defendant to file the
Written Statement on such other day as may be
specified by the Court, but which shall not be later
than ninety days (in case of Ordinary Suit) and one
hundred and twenty days (in case of Commercial Suit)
from the date of service of summons. The major
difference lies thereafter. While in an Ordinary Suit,
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By:DHIRENDER KUMAR
Signing Date:24.12.2021 18:31:42
even after expiry of ninety days from the date of
service of summons, the Court can allow the
defendant to file the Written Statement, in
Commercial Suits, the Court cannot allow the Written
Statement filed beyond one hundred and twenty days
to be taken on record.
37. In both Ordinary Suit and Commercial Suit, even
while allowing the defendant to file the Written
Statement beyond thirty days and within 90/120 days,
the Court has to record reasons in writing for the
same, and in case of Commercial Suit, impose such
costs on the defendant as the Court may deem fit. The
submission of the petitioner that the Court has no
discretion but to extend the time for filing of the
Written Statement, therefore, cannot be accepted. As
held by the Supreme Court in SCG Contracts (India)
Private Ltd.(supra), period beyond 30 days of service
of summons is the grace period which a court is
empowered to grant to the defendant, for reasons to be
recorded in writing, for filing of the written statement.
Such grace period cannot be claimed as a matter of
right by the defendant but is at the discretion of the
court. The defendant cannot claim extension of period
of time for filing of the Written Statement without
giving any justified reason for the delay in filing."
10. In the opinion of this Court, the misunderstanding as to the nature of
the suit and the chronology of events in the suit shows that the delay is
sufficiently explained. Also, there would be grave injustice caused to the
Defendant if the Written Statement is not taken on record. The Defendant
was honestly under a mistaken impression that the suit was under Order
XXXVII. Furthermore, even after the filing of the written statement, no
objection was taken for almost 10 months and the suit had actually
proceeded further. The Plaintiff decided to take the objection for the first
Digitally Signed
By:DHIRENDER KUMAR
Signing Date:24.12.2021 18:31:42
time on 17th September, 2020 pursuant to which an application was moved.
In the overall facts and circumstances and considering the fact that the
present suit is not a commercial suit but is governed by the CPC where the
period specified in Order VIII Rule 1 has been clearly held to be directory
and not mandatory, the written statement is directed to be taken on record,
subject to payment of Rs.7,500/- as costs to the Plaintiff. The costs shall be
tendered on the next date before the trial court.
11. The petition is allowed in the above terms. The pending application is
also disposed of.
PRATHIBA M. SINGH
JUDGE
DECEMBER 21, 2021
mw/SK
