M/S Shivalik Silica Through Its Partner ... vs Anjali Singhal
2024 Latest Caselaw 7119 P&H

Punjab-Haryana High Court

M/S Shivalik Silica Through Its Partner ... vs Anjali Singhal on 4 April, 2024

Author: Vikas Suri

Bench: Vikas Suri

                                Neutral Citation No:=2024:PHHC:047023




                                                          2024:PHHC: 047023

      IN THE HIGH COURT OF PUNJAB AND HARYANA
                   AT CHANDIGARH


127                                      CR-1673-2024 (O&M)
                                         Date of decision: 04.04.2024

M/s Shivalik Silica through its partner and others
                                                               ...Petitioners

                     Versus

Anjali Singhal

                                                              ...Respondent
CORAM: HON'BLE MR. JUSTICE VIKAS SURI

Present:    Mr. Manoj Kumar Sood, Advocate for the petitioners.

                                 *****

VIKAS SURI, J.

1. This is a civil revision petition under Article 227 of the

Constitution of India filed by the petitioner-defendants for setting aside

order dated 14.11.2023 (Annexure P-6), passed by learned Civil Judge

(Jr. Divn.) Faridabad, whereby their defence has been struck off by

Court order, since they had not filed their written statement within a

period of 90 days.

2. The respondent-plaintiff has filed the suit for recovery of

Rs.15,96,501/- along with interest @ 12% p.a. It is pleaded in the plaint

that the defendants were having very good family relations with the

plaintiff since many years and husband of the plaintiff is also having

business relations with petitioner Nos.2 and 3 for the last 10-12 years.

The aforesaid defendants had requested for financial help as they were in

need of money for expansion of their business. The respondent-plaintiff,

thus, issued a cheque in the sum of Rs.1,25,000/- in favour of the

1 of 7

Neutral Citation No:=2024:PHHC:047023

CR-1673-2024 -2- 2024:PHHC: 047023

petitioner No.1 firm, which was credited in its account on 31.07.2012.

The said loan bears an interest @ 12% p.a. The petitioner-defendants

during the financial year 2014-15 returned an amount of Rs.40,000/- on

07.07.2014 and thus, as on 31.03.2018, an amount of Rs.14,32,354/- was

due and payable by the petitioner-defendants. As on 31.03.2019, an

amount of Rs.16,04,248/- was due and payable by the petitioner-

defendants after adjusting the amount credited towards tax deducted at

source (TDS) on the interest accrued during the respective financial year

commencing from 01.04.2013 upto 31.03.2019, as tabulated in para 4 of

the plaint.

3. Upon notice having been issued to the petitioner-defendants

and taking note of the postal receipt along with tracking report as per

which notice was shown to be delivered to the petitioner-defendants,

they were proceeded against ex parte vide order dated 10.08.2022

(Annexure P-3). On an application having been made for setting aside

the ex parte order by the petitioners, which was allowed vide order dated

20.07.2023 (Annexure P-4), the proceedings were adjourned to

17.10.2023 for filing written statement. On the adjourned date, further

time was sought for filing the written statement and accordingly, the

matter was adjourned to 03.11.2023, on which date, considering the

resolution passed by the District Bar Association, Faridabad resolving to

abstain from work for the said day, the proceedings were further

adjourned to 14.11.2023. The trial Court vide order dated 14.11.2023

recorded that since the defendants have not filed the written statement

within the mandatory period of 90 days, hence, their defence was

2 of 7

Neutral Citation No:=2024:PHHC:047023

CR-1673-2024 -3- 2024:PHHC: 047023

ordered to be struck off. The issues were framed on the same date and

the proceedings were deferred to 26.02.2024 for evidence of the

plaintiff.

4. Learned counsel for the petitioners submits that on

26.02.2024, no plaintiff witness was examined and the case was posted

for 29.05.2024 for evidence of the plaintiff at own responsibility.

5. The petitioners have filed the present revision petition

aggrieved by the order dated 14.11.2023 (Annexure P-6).

6. I have heard learned counsel for the petitioners and perused

the material available on record with his able assistance.

7. In view of the nature of the order being passed, notice is not

being issued to the respondent-plaintiff as it would only delay the

trial/proceedings and entail additional expense to the said respondent.

8. Learned counsel for the petitioners has made a categoric

statement that in case one opportunity is granted subject to being put to

terms to compensate the respondent-plaintiff, the written statement

would be filed on the very first opportunity, as may be granted by this

Court.

9. No doubt, the provisions of Order 8 Rule 1 CPC ordinarily

ought to be adhered to, but the trial Court could have permitted one more

opportunity to file written statement subject to payment of costs.

10. Even otherwise, provisions contained in Order 8 Rule 1

CPC have been held to be directory in nature by the Apex Court in

Salem Bar Association vs. Union of India, (2005) 6 SCC 344. It is well

settled that the Court should not be too harsh to strike off the defence of

3 of 7

Neutral Citation No:=2024:PHHC:047023

CR-1673-2024 -4- 2024:PHHC: 047023

the defendants at very early stage. The rules of procedure are the

handmaids of justice and cannot be allowed to defeat substantial justice

between the parties.

11. A three judge Bench of the Hon'ble Supreme Court of India

in Desh Raj vs. Balkishan (Dead) through Proposed Legal

Representative Ms. Rohini, (2020) 2 SCC 708, had also examined the

timeline for filing of written statement and held that in a non-commercial

dispute matter, the unamended provisions of Order 8 Rule 1 CPC

continues to be directory and does not do away with the inherent

discretion of the Courts to condone delay. The relevant portion of the

said judgment reads as thus:-

Analysis and conclusion

10. At the outset, it must be noted that the Commercial Courts Act, 2015 through Section 16 has amended the CPC in its application to commercial disputes to provide as follows:

"16. Amendments to the Code of Civil Procedure, 1908 in its application to commercial disputes.--(1) The provisions of the Code of Civil Procedure, 1908 (5 of 1908) shall, in their application to any suit in respect of a commercial dispute of a specified value, stand amended in the manner as specified in the Schedule.

(2) The Commercial Division and Commercial Court shall follow the provisions of the Code of Civil Procedure, 1908 (5 of 1908), as amended by this Act, in the trial of a suit in respect of a commercial dispute of a specified value.

(3) Where any provision of any rule of the jurisdictional High Court or any amendment to the Code

4 of 7

Neutral Citation No:=2024:PHHC:047023

CR-1673-2024 -5- 2024:PHHC: 047023

of Civil Procedure, 1908, by the State Government is in conflict with the provisions of the Code of Civil Procedure, 1908 (5 of 1908), as amended by this Act, the provisions of the Code of Civil Procedure as amended by this Act shall prevail."

11. Hence, it is clear that post coming into force of the aforesaid Act, there are two regimes of civil procedure. Whereas commercial disputes [as defined under Section 2(c) of the Commercial Courts Act, 2015] are governed by CPC as amended by Section 16 of the said Act; all other non-commercial disputes fall within the ambit of the unamended (or original) provisions of CPC.

12. The judgment of Oku Tech [Oku Tech (P) Ltd. v. Sangeet Agarwal, 2016 SCC OnLine Del 6601] relied upon by the learned Single Judge is no doubt good law, as recently upheld by this Court in SCG Contracts (India) (P) Ltd. v. K.S. Chamankar Infrastructure (P) Ltd. [SCG Contracts (India) (P) Ltd. v. K.S. Chamankar Infrastructure (P) Ltd., (2019) 12 SCC 210 : (2020) 1 SCC (Civ) 237] but its ratio concerning the mandatory nature of the timeline prescribed for filing of written statement and the lack of discretion with courts to condone any delay is applicable only to commercial disputes, as the judgment was undoubtedly rendered in the context of a commercial dispute qua the amended Order 8 Rule 1 CPC.

13. As regards the timeline for filing of written statement in a non-commercial dispute, the observations of this Court in a catena of decisions, most recently in Atcom Technologies Ltd. v. Y.A. Chunawala & Co. [Atcom Technologies Ltd. v. Y.A. Chunawala & Co., (2018) 6 SCC 639 : (2018) 3 SCC (Civ) 777] holds the field. The unamended Order 8 Rule 1 CPC continues to be directory and does not do away with the inherent discretion of courts to condone certain delays.

                              5 of 7

                                 Neutral Citation No:=2024:PHHC:047023




CR-1673-2024                            -6-               2024:PHHC: 047023

12. It has also been held in the case of Bharat Kalra vs. Raj

Krishan Chhabra, 2022 SCC Online 613, while relying upon the earlier

judgment in Kailash vs. Nanko and others, (2005) 4 SCC 480, that the

provision of Order 8 Rule 1 CPC is not mandatory and the delay in filing

of the written statement could very well be compensated with costs but

denying the benefit of filing the written statement is unreasonable.

13. In the present case, the trial Court after noticing that the

mandatory period of 90 days for filing the written statement had already

expired, struck off the defence of the petitioner-defendants vide

impugned order dated 14.11.2023.

14. Perusal of the plaint (Annexure P-1) prima facie shows that

the suit is not based on a 'commercial dispute' as defined under Section

2 (c) of the Commercial Courts Act, 2015. Hence, the ratio of Desh

Raj's case (supra) would apply on all fours in the present case.

15. In view of the above discussion and law settled by the Apex

Court, I am of the considered opinion that the ends of justice would be

adequately met if the delay in filing written statement is condoned

subject to payment of costs, as the period of 90 days provided under

Order 8 Rule 1 CPC is directory and not mandatory, in a non-

commercial dispute. It is also well settled that procedural law is always

subservient to and is in aid of justice. The rules of procedure are the

handmaids of justice. Moreover, no prejudice would be caused to the

respondent in case the suit is decided on merits, after affording a proper

opportunity to contest the same.

16. Accordingly, the present revision petition is allowed. The

6 of 7

Neutral Citation No:=2024:PHHC:047023

CR-1673-2024 -7- 2024:PHHC: 047023

impugned order dated 14.11.2023 is set aside, subject to payment of

Rs.15,000/- as costs, to be paid to the plaintiff-respondent and one

opportunity is granted to the petitioner-defendants to file the written

statement on or before the next date fixed before the trial Court. It is

made clear that failing to file the written statement or to pay costs in

terms of this order, the petitioner would not be entitled to any further

opportunity for the said purpose and the trial Court would proceed with

the matter without this order having any bearing on the trial.

17. As the present revision petition is being disposed in the

absence of the respondent-plaintiff, liberty is granted to her to seek

recalling of the present order, if valid grounds for the same are made out.

18. The revision petition is allowed in the aforesaid terms.

19. Pending applications, if any, also stand disposed of.

                                                     (VIKAS SURI)
 April 04, 2024                                         JUDGE
 sumit.k



             Whether speaking/reasoned :      Yes / No
             Whether Reportable :             Yes / No




                               7 of 7