Karnataka High Court

K C Boregowda vs C Anand on 16 October, 2024

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                                                               NC: 2024:KHC:41907
                                                            WP No. 24796 of 2024




                        IN THE HIGH COURT OF KARNATAKA AT BENGALURU

                          DATED THIS THE 16TH DAY OF OCTOBER, 2024

                                             BEFORE
                              THE HON'BLE MR JUSTICE R. NATARAJ
                          WRIT PETITION NO. 24796 OF 2024 (GM-CPC)
                   BETWEEN:

                   1.    K.C. BOREGOWDA,
                         S/O. LATE. JAVAREGOWDA @ CHIKKANNA,
                         AGED ABOUT 66 YEARS,

                   2.    K.C. SREENATH,
                         S/0. LATE. JAVAREGOWDA @ CHIKKANNA,
                         AGED ABOUT 55 YEARS,

                   3.    K.C. JAYARAMU,
                         S/0. LATE. JAVAREGOWDA @ CHIKKANNA,
                         AGED ABOUT 51 YEARS,

                         PETITIONERS NO.1 TO 3
                         ARE RESIDING AT KONANAHALLI VILLAGE,
                         KOTHATHI HOBLI, MANDYA TALUK,
                         MANDYA DISTRICT-571 478.
                                                                    ...PETITIONERS
                   (BY SRI. VIJAY SHETTY .B, ADVOCATE)
Digitally signed
by                 AND:
MARKONAHALLI
RAMU PRIYA
Location: HIGH     1.    C. ANAND,
COURT OF
KARNATAKA                S/O. CHANNEGOWDA,
                         AGED ABOUT 46 YEARS,
                         R/O. KALENAHALLI VILLAGE,
                         KOTHATHI HOBLI,
                         MANDYA TALUK AND DISTRICT-571478.

                   2.    K.B. DILEEP,
                         S/O K.C. BOREGOWDA,
                         AGED ABOUT 33 YEARS,
                         RESIDING AT KONANAHALLI VILLAGE,
                         KOTHATI HOBLI, MANDYA TALUK,
                         MANDYA DISTRICT-571 478.
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                                            NC: 2024:KHC:41907
                                         WP No. 24796 of 2024




3.   K.B. JAVAREGOWDA @ CHIKKANNA,
     S/O. LATE. JAVAREGOWDA @ CHIKKANNA,
     AGED ABOUT 59 YEARS,
     RESIDING AT 2ND CROSS, V.V.NAGARA,
     KALLAHALLI, MANDYA CITY,
     PIN-571406.
                                                 ...RESPONDENTS
(BY SRI. M.K. KEMPEGOWDA, ADVOCATE FOR C/R1)

      THIS WRIT PETITION IS FILED UNDER ARTICLE 226 AND 227
OF THE CONSTITUTION OF INDIA, PRAYING TO QUASH THE ORDER
PASSED BY THE HONBLE PRINCIPAL DIST AND SESSION           JUDGE
AND DIST COMMERCIAL COURT AT MANDYA IN IA NO. 3/2024 IN
COM OS NO. 51/2023 DTD 09.08.2024 IN DISMISSING THE
APPLICATION FILED BY THE PETITIONS HEREIN UNDER ORDER VIII
RULE 1 READ WITH SECTION 151 OF CPC SEEKING PERMISSION TO
FILE THE WRITTEN STATEMENT BY CONDONING THE DELAY IN
FILING THE SAME VIDE ANNEXURE-A AND THEREBY TO ACCEPT THE
WRITTEN STATEMENT FILED BY THE PETITIONERS AND ETC.

      THIS PETITION, COMING ON FOR PRELIMINARY HEARING,
THIS DAY, ORDER WAS MADE THEREIN AS UNDER:

CORAM:    HON'BLE MR JUSTICE R. NATARAJ


                         ORAL ORDER

The defendant Nos.1, 3 and 4 in Com.O.S.No.51/2023

pending on the file of the Principal District and Sessions Judge,

Mandya (henceforth referred to as 'Trial Court') have filed this

writ petition challenging an order dated 09.08.2024 by which

their application (I.A.No.III) under Order VIII Rule 1 read with

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Section 151 of CPC to condone the delay in filing the belated

written statement was rejected.

2. The parties shall henceforth be referred to as they

were arrayed before the Trial Court. The petitioners were the

defendant Nos.1, 3 and 4 and the respondent No.1 was the

plaintiff and the respondent Nos.2 and 3 were the defendant

Nos.5 and 2.

3. The suit in Com.O.S.No.51/2023 was filed for

recovery of Rs.60,00,000/- along with interest. The plaintiff

contended that the defendant Nos.1 to 4 being the owners of a

commercial complex had placed him in possession for the

purpose of running a hotel and a lodge. They had in all

received Rs.7,00,000/- as advance. The plaintiff claimed that

on the request of the defendant Nos.1 and 5, the plaintiff had

agreed to lease one of the shop premises in favour of

defendant No.5 on a monthly rent of Rs.3,000/- to run a

stationary business. The plaintiff claimed that the defendant

No.5 after taking the premises on lease had set up a hotel

business and a juice centre from the year 2014. He claimed

that in order to run business in the premises, he had sold his

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property in Kalenahalli village, Kothathi Hobli, Mandya and had

obtained a licence from the Commercial Tax Department. He

also invested heavily to alter the building to make it suitable for

the purpose of restaurant and a lodge. He claimed that

defendant Nos.1 to 4 were not paying the property tax

regularly to CMC, Mandya, which came in the way of the

plaintiff getting the licence renewed every year. He contended

that he spent a substantial sum of money for carrying out

repair works, which was estimated at Rs.27,17,500/-. He also

claimed that he had suffered loss due to non-renewal of licence

owing to non-payment of building tax to CMC. He also claimed

that he had suffered loss on account of COVID - 19 pandemic

as the hotel was closed down for nearly two years. He claimed

that the defendant No.5 was running a parallel hotel and juice

center, which also resulted in loss. Apart from that, he claimed

that he had spent substantial sum of money for pre-litigation

expenses before the District Legal Services Authority and

therefore, prayed that the defendants were liable to pay

Rs.60,00,000/- along with interest.

4. The defendants were served with the summons and

they entered appearance on 06.12.2023 before the Trial Court.

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The parties were directed to undergo mediation which

commenced on 18.01.2024 till 02.03.2024. Since the

mediation failed, the defendant Nos.1, 3 and 4 filed belated

written statement on 08.04.2024 along with an application

seeking condonation of delay. The Trial Court rejected the

application for condonation of delay in filing the written

statement.

5. Being aggrieved by the said order, the defendant

Nos.1, 3 and 4 are before this Court.

6. The learned counsel for the defendant Nos.1, 3 and

4 submitted that even though the defendants were served with

the summons in the suit, since the parties were referred for

mediation from 18.01.2024 to 02.03.2024, the defendants

genuinely believed that there could be a compromise between

them and therefore, they did not file written statement. He

contends that soon after the mediation failed, the defendant

Nos.1, 3 and 4 filed written statement along with an application

for condonation of delay. He submitted that the reason for not

filing written statement within the prescribed period was due to

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the aforesaid reason and the Trial Court must have considered

the same favourably.

7. Per contra, the learned counsel for the plaintiff

contends that the defendants were well aware that the

statement had to be filed within 120 days as prescribed under

Order VIII Rule 1 of CPC. He contends that the defendant

Nos.1, 3 and 4 did not choose to file the written statement but

filed a belated statement on 08.04.2024. He contends that the

reasons cited by the defendant Nos.1, 3 and 4 for filing the

belated written statement cannot be accepted since they were

fully aware of the consequences of not filing the written

statement and therefore, they must have taken steps to file

written statement within time.

8. I have considered the submissions made by the

learned counsel for the defendant Nos.1, 3 and 4 as well as the

learned counsel for the plaintiff.

9. The question whether the time limit prescribed for

filing written statement under Order VIII Rule 1 of CPC in a

Commercial suit came up for consideration before the Hon'ble

Supreme Court of India in M/s SCG Contracts India Pvt. Ltd.

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vs. K.S. Chamankar Infrastructure Pvt. Ltd. and others

[AIR 2019 SC 2691], where it was held,

"10. Several High Court judgments on the amended Order VIII Rule 1 have now held that given the consequence of non-filing of written statement, the amended provisions of the CPC will have to be held to be mandatory. [See Oku Tech Private Limited v. Sangeet Agarwal & Ors. by a learned Single Judge of the Delhi High Court dated 11.08.2016 in CS (OS) No. 3390/2015 as followed by several other judgments including a judgment of the Delhi High Court in Maja Cosmetics v. Oasis Commercial Pvt. Ltd. 2018 SCC Online Del 6698.

11. We are of the view that the view taken by the Delhi High Court in these judgments is correct in view of the fact that the consequence of forfeiting a right to file the written statement; non- extension of any further time; and the fact that the Court shall not allow the written statement to be taken on record all points to the fact that the earlier law on Order VIII Rule 1 on the filing of written statement under Order VIII Rule 1 has now been set at naught."

10. In the instant case, it is not in dispute that the

defendants were served with the suit summons on 06.12.2023

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and therefore, the defendants were bound to file written

statement within 90 days or 120 days from the date of service

of notice, which expired during April, 2024. Be that as it may,

at the instance of the Court, the parties were referred to

mediation on 18.01.2024 which went on till 02.03.2024.

Therefore, it was probable that the defendants had hoped that

an amicable settlement could be arrived at and waited till the

mediation was concluded. The time taken for the mediation

had to be excluded. The reason assigned by the defendant