Delhi High Court
Sh. Shiv Bathla vs Punjab National Bank on 18 July, 2023
$~62
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ CM(M) 1108/2023 & CM APPL. 35940/2023 CM APPL. 35941/2023
SH. SHIV BATHLA ..... Petitioner
Through: Mr. Shiv Kumar Gandhi, Advocate
(Through VC)
versus
PUNJAB NATIONAL BANK ..... Respondents
Through: Mr. Anmol Panwar, Advocate
(Through VC)
% Date of Decision: 18th July, 2023
CORAM:
HON'BLE MS. JUSTICE MANMEET PRITAM SINGH ARORA
JUDGMENT
MANMEET PRITAM SINGH ARORA, J (ORAL):
1. This petition filed under Article 227 of Constitution of India impugns
the orders dated 31.10.2022 and 20.05.2022 passed by the District Judge
(Comm.) Digital-07, South East District, Saket Courts, Delhi ('Trial Court')
in CS (Comm.) No. 388/2022, titled as 'Punjab National Bank v. Shiv
Bathla', whereby the Trial Court vide order dated 31.10.2022 closed the
right of the Petitioner i.e., defendant to file the Written Statement and
subsequently, vide order dated 20.05.2022, dismissed the Petitioner's
application under Order VIII Rule 1 of CPC seeking condonation of delay in
filing the written statement.
2. Brief facts leading to the filing of present petition are as under:
Signature Not Verified
Digitally Signed
By:MAHIMA SHARMA
Signing Date:24.07.2023
11:09:34
2.1. The Respondent i.e., plaintiff had filed the aforesaid commercial suit
for recovery of Rs. 13,77,099.24/- along with future and pendente lite
interest @ 8.55% per annum on the said sum till realization and other
ancillary reliefs.
2.2. The summons was issued by the Trial Court to the Petitioner, which
was admittedly received by the Petitioner on 06.08.2022 through Speed
Post.
2.3. The Petitioner after receiving the summons, entered appearance
through and advocate, who filed his vakalatnama on 26.09.2022. On this
date the Presiding Officer was on leave and the matter was adjourned to
31.10.2022. Thereafter, on 31.10.2022 the counsel for the Petitioner entered
appearance through Video Conferencing mode at 2:00 p.m. and submitted
before the Trial Court that he was not able to file the written statement since,
the complete copy of the documents has not been provided, inasmuch as
page no. 57 of the document is missing and some portions of page numbers
29, 30 and 31 of the said documents were not legible.
2.4. The Trial Court vide order dated 31.10.2022, closed the Petitioner's
right to file written statement by holding that if the deficiency in the
documents were material and prevented the Petitioner to from filing the
written statement within thirty (30) days of service, appropriate application
for supply of legible copies and extension of time for filing the written
statement should have been moved.
2.5. The Petitioner thereafter filed his written statement on 17.11.2022
along with application under Order VIII Rule 1 of CPC seeking condonation
Signature Not Verified
Digitally Signed
By:MAHIMA SHARMA
Signing Date:24.07.2023
11:09:34
of delay 69 days in filing the written statement. However, the same as well
was dismissed by the Trial Court vide order dated 20.05.2022.
3. Learned counsel for the Petitioner states that in the application filed
under Order VIII Rule 1 of CPC, the Petitioner herein i.e., the defendant had
averred that his mother, aged about 61 years, is suffering from low white
cell problems, whereas the defendant himself is also suffering from eye
problem due to which he could not file his written statement within the time
prescribed. He states that Petitioner had also annexed the medical documents
along with the said application.
3.1. He states that though the written statement was not filed within 30
days period, as stipulated, however, the same has been filed on 17.11.2022.
He states that the 120 days from service of summons would have expired on
04.12.2022. He states that thus, the delay of 69 days over and above the 30
days period could have been condoned by the Trial Court.
4. In reply, learned counsel for the Respondent, who appears on advance
service states that the Respondent has no objection, if the written statement
of the Petitioner is taken on record subject to payment of legal costs.
5. This Court has considered the submissions of the parties and perused
the record.
6. The law with respect to the limitation for filing the written statement
in commercial suits has been settled by the Supreme Court in SCG
Contracts (India) Pvt. Ltd. v. K.S. Chamankar Infrastructure Pvt. Ltd.,
(2019) 12 SCC 210 and has been reiterated by the predecessor bench of this
Court in MN Automobile Private Limited v. Guriqbal Singh and Anr.,
2023 SCC OnLine Del 3020, relevant paragraph whereof reads as under:
Signature Not Verified
Digitally Signed
By:MAHIMA SHARMA
Signing Date:24.07.2023
11:09:34
"10. The rigors of the Commercial Courts Act have been already settled by
the Supreme Court in SCG Contracts (India) Private Limited v. K.S.
Chamankar Infrastructure Private Ltd. reported in (2019) 12 SCC 210.
However, this Court has considered the delay which has occurred of about
67 days reckoned from 29.06.2022 and is of the considered opinion that the
said delay will not come in the way of the petitioner from entitling it to file
its written statement. In any case, the settled law of the land is that the
cases ought to be considered and disposed of on merits rather than
technicalities."
(Emphasis Supplied)
7. This Court takes note of the fact that though the written statement was
filed beyond thirty (30) days period, as stipulated, however, has been filed
within the ninety (90) days extended period, as stipulated in Order VIII Rule
1 of CPC. Further, the Petitioner has also filed an application under Order
VIII Rule 1 of CPC seeking condonation of delay.
8. In view of the aforesaid fact of the written statement being filed
within 120 days coupled with the no objection given by the Respondent, this
Court deems it fit to direct the Trial Court to take the written statement filed
by the Petitioner on record, subject to the Petitioner making payment of
costs of Rs. 15,000/- to the Respondent and separately costs of Rs. 10,000/-
to the counsel for the Respondent respectively within a period of two (2)
weeks and proceed with suit in accordance with law. The total legal costs
are Rs. 25,000/-.
9. The Petitioner is directed to file his affidavit by way of
admission/denial of documents filed with the plaint, within a period of one
(1) week, if not already filed.
10. The Respondent is directed its replication within a period of four (4)
weeks.
Signature Not Verified
Digitally Signed
By:MAHIMA SHARMA
Signing Date:24.07.2023
11:09:34
11. It is directed that if the Petitioner fails to comply with the aforesaid
direction a time bound manner, his defense shall be struck off from the
record.
12. Accordingly, the petition is allowed, the order dated 31.10.2022 and
20.05.2023 are set aside. The Petition is allowed in terms of the aforesaid
direction, pending applications, if any, stand disposed of.
MANMEET PRITAM SINGH ARORA, J
JULY 18, 2023/aa
Signature Not Verified
Digitally Signed
By:MAHIMA SHARMA
Signing Date:24.07.2023
11:09:34
