G.S. Sistani, J.
IA No. 3118/2013 (O.VIII Rule 1 CPC)
1. This is an application under Order VIII Rule 1 CPC read with Section 5 of the Limitation Act for condonation of delay in filing the written statement. The plaintiff has filed the present suit for the recovery of Rs.23,88,505/- along with interest. Admittedly, defendants were served with the summons in the suit in the month of June 2012. The order sheet reveals that on 03.07.2012 counsel for the defendant had entered appearance and undertaken to file his vakalatnama within one week. 30 days'' time was granted to file the written statement. The matter was thereafter adjourned to 14.9.2012. On the said date, the Joint Registrar noticed that neither the vakalatnama nor the written statement had been filed. Time was granted to the plaintiff to file affidavit by way of evidence and the matter was adjourned to 21.02.2013, on which date plaintiff''s witness was examined and discharged. No written statement was on record even on that day but a submission was made by learned counsel for the defendant that the written statement had already been filed on 20.12.2013. Opportunity was granted to cross-examine the witness of the plaintiff. However, no cross-examination was conducted by the defendant. This application has been filed on 20.02.2013 by the defendant seeking condonation of delay in filing the written statement. The only ground which has been raised in the present application seeking condonation of delay in filing the written statement is as under:-
"3. That the present application is being filed for condoning the delay in filing the instant written statement. The ground for not filing the same within the stipulated time is because the Central Bureau of Investigation had, on 12.5.2011 seized some record of the defendant company in connection with investigations relating to irregularities in the Commonwealth Games related projects. This record has not been returned by the CBI so far. During the course of raid by the CBI, many documents of the defendant company got misplaced and were not easily traceable. It is with great difficulty that some other record having a bearing on the present plaint could be culled out on the basis of which submissions are being made in the written statement. It is due to aforesaid reasons the present written statement got delayed."
2. Mr. Dholakia, learned counsel for the applicant has strongly urged before the Court that the delay in filing the written statement is neither deliberate nor intentional but solely on account of the fact that the documents having a bearing on the present matter were not available with the defendant by virtue of having been seized by the CBI. Mr. Dholakia has placed reliance on the decision of the Supreme Court
3. The present application is vehemently opposed by the learned counsel for the plaintiff who submits that one week''s time was sought by the defendant to file vakalatnama on 03.07.2012 whereas even up to 14.09.2012 i.e. after a lapse of 2 1/2 months since extension had been sought, neither the vakalatnama nor the written statement was filed. It is further submitted by counsel for the plaintiff that the conduct of the defendant is extremely callous and the defendant has been highly negligent in pursuing the matter, which is evident from the perusal of the order sheets. Counsel further submits that defendant has failed to state reasonable grounds for extension of time.
4. I have heard counsel for the parties and considered their rival submissions. It is no longer res integra that time can be extended in filing the written statement even after 90 days of service of summons. However, time is to be extended only in exceptional cases where sufficient cause is shown to the satisfaction of the Court. The Apex Court in the case of
"26. The text of Order VIII Rule 1, as it stands now, reads as under:-
"1. Written Statement - The defendant shall, within thirty days from the date of service of summons on him, present a written statement of his defence:
Provided that where the defendant fails to file the written statement within the said period of thirty days, he shall be allowed to file the same on such other day, as may be specified by the Court, for reasons to be recorded in writing, but which shall not be later than ninety days from the date of service of
27. Three things are clear. Firstly, a careful reading of the language in which Order VIII, Rule 1 has been drafted, shows that it casts an obligation on the defendant to file the written statement within 30 days from the date of service of summons on him and within the extended time falling within 90 days. The provision does not deal with the power of the court and also does not specifically take away the power of the court to take the written statement on record though filed beyond the time as provided for. Secondly, the nature of the provision contained in Order VIII, Rule 1 is procedural. It is not a part of the substantive law. Thirdly, the object behind substituting Order VIII, Rule 1 in the present shape is to curb the mischief of unscrupulous defendants adopting dilatory tactics, delaying the disposal of cases much to the chagrin of the plaintiffs and petitioners approaching the court for quick relief and also to the serious inconvenience of the court faced with frequent prayers for adjournments. The object is to expedite the hearing and not to scuttle the same. The process of justice may be speeded up and hurried but the fairness which is a basic element of justice cannot be permitted to be buried.
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41. Considering the object and purpose behind enacting Rule 1 of Order VIII in the present form and the context in which the provision is placed, we are of the opinion that the provision has to be construed as directory and not mandatory. In exceptional situations, the court may extend the time for filing the written statement though the period of 30 days and 90 days, referred to in the provision, has expired. However, we may not be misunderstood as nullifying the entire force and impact - the entire life and vigour - of the provision. The delaying tactics adopted by the defendants in law courts are now proverbial as they do stand to gain by delay. This is more so in election disputes because by delaying the trial of election petition, the successful candidates may succeed in enjoying the substantial part, if not in its entirety, the term for which he was elected even though he may lose the battle at the end. Therefore, the judge trying the case must handle the prayer for adjournment with firmness. The defendant seeking extension of time beyond the limits laid down by the provision may not ordinarily be shown indulgence.
42. Ordinarily, the time schedule prescribed by Order VIII, Rule 1 has to be honoured. The defendant should be vigilant. No sooner the writ of summons is served on him he should take steps for drafting his defence and filing the written statement on the appointed date of hearing without waiting for the arrival of the date appointed in the summons for his appearance in the Court. The extension of time sought for by the defendant from the court whether within 30 days or 90 days, as the case may be, should not be granted just as a matter of routine and merely for asking more so, when the period of 90 days has expired. The extension can be only by way of an exception and for reasons assigned by the defendant and also recorded in writing by the Court to its satisfaction. It must be spelled out that a departure from the time schedule prescribed by Order VIII, Rule 1 of the Code was being allowed to be made because the circumstances were exceptional, occasioned by reasons beyond the control of the defendant and such extension was required in the interest of justice, and grave injustice would be occasioned if the time was not extended."
5. In another judgment delivered by a Single Judge of this Court
"5. After the amendment of Order 8 Rule 1 CPC, an obligation is casted on the defendant to file written statement within 30 days after service of summons on him. However, for the reasons to be recorded in writing the court may, in a given case, also extend the time up to 90 days for filing written statement. There is no doubt that the provisions contained in Order 8 Rule 1 CPC is directing and not substantive and that in an appropriate case, on the defendant showing good cause of not being able to file the WS within the period of 90 days, the court can extend the time. But it is trite that the time could only be extended in exceptional hard cases. It was apparent from the legislative intention which has fixed the upper time limit as 90 days. Thus, the discretion could be exercised by the Court to extend the time not in routine and on the mere asking of the defendant. It is more so when the period of 90 days stands expired. As per
6. The judgment relied upon by learned counsel for the applicant i.e. Zolba''s case (supra) is not applicable to the facts of the present case because of two distinguishing factors; firstly, in the judgment that the applicant seeks to rely upon, delay was merely of 35 days as opposed to inordinate delay of 231 days in the present case, and secondly, no foundation has been laid down by the applicant showing sufficient grounds for extension of time. Admittedly, as per the present application, the CBI raid took place even prior to the filing of the present suit. In case documents were seized by the CBI, a copy of the panchnama ought to have been placed on record by the defendant in support of his submission that the documents had been seized which has not been done in the present case. Even otherwise the present application is vague and lacks material particulars. As per the application the CBI "seized some record of the defendant company", however, the applicant has failed to state as to when the CBI raid was conducted, the nature of documents which were seized and the relevance of those documents to the present case. There are also no details with regard to efforts if any made to procure the documents from CBI. In my view the ground raised in the application is very casual.
It was with the aim of curbing such unscrupulous pleas and dilatory tactics adopted by defendants, that an amendment was carried out by the legislature in the year 2002 and an upper limit of 90 days was fixed with respect to the time within which written statement shall be filed by the defendants. Although court has wide powers in granting extension of time for filing of written statement, it has consistently been held that this power must be exercised by the court sparingly and in exceptional circumstances and that an extension should not be granted as a matter of routine or of a mere asking. The present application, in my view does not portray any exceptional situation and on the contrary discloses the casual manner in which the application has been drafted and an extension has been sought. Accordingly, IA No. 3118/2013 filed under Order VIII Rule 1 CPC is dismissed for want of sufficient grounds for condonation of delay.
CS(OS) 176/2012
7. Counsel for the plaintiff submits that the defendants were served in the suit in June 2002. As no written statement has been filed by the defendants in spite of having been granted time to file the same, the application [IA No. 3118/2013] for condonation of delay in filing the written statement stands dismissed and the plaintiff is entitled to a decree under Order VIII Rule 10 CPC.
8. The plaintiff has also filed affidavit by way of evidence of Shri Navneet Sharma, PW-1 constituted attorney of the plaintiff company, exhibited as Ex.PW-1/A. Despite an opportunity having been granted, PW-1 was not cross-examined by counsel for the defendant. Thus, the evidence of the plaintiff has gone unrebutted. At this stage, Mr. Dholakia submits that no opportunity for cross-examination was granted to the defendant. Mr. Dholakia also submits that no invoices have been placed on record by the plaintiff and therefore the plaintiff is unable to prove its case.
9. In his affidavit by way of evidence, PW-1 has proved the resolution dated 30.12.2013 by which he was authorized to file the present suit. He has also proved the Special Power of Attorney, Ex.PW-1/2. As per the evidence, the defendant contacted the plaintiff for carrying out dewatering work at "Bridge Work near Sarai Kale Khan, New Delhi". An offer dated 31.01.2009 was made by the plaintiff to the defendant containing terms and conditions. The offer letter has been exhibited as Ex.PW-1/3. Copy of the work order dated 31.01.2009 placed by the defendant on the plaintiff has been exhibited as Ex.PW-1/4. PW-1 further deposed that the contract between the parties stood concluded once the plaintiff signed the copy of the letter dated 02.02.2009, exhibited as Ex.PW-1/5. It has further been deposed that the agreement was confirmed by exchange of letters between the parties by e-mail exhibited as Ex.PW-1/6. PW-1 has further deposed that pursuant to the conclusion of the contract and confirmation of the agreement, the dewatering equipments were sent to the defendant''s site and dewatering work started from 05.02.2009. By an additional work order dated 14.03.2009 placed by the plaintiff, additional equipment was sent at the site of the defendant. The copy of the second work order dated 14.03.2009 has been exhibited as Ex.PW-1/7. PW-1 has further deposed that another work order dated 13.05.2009 was also placed which has been exhibited as Ex.PW-1/8. It has further been deposed by PW-1 that the plaintiff company raised bills on the defendant with respect to the work carried out by them. Various communications/demands were made seeking payment of the outstanding amount due to the plaintiff including letters dated 09.06.2010, 15.07.2010 and 29.07.2010 (Ex.PW-1/9, Ex.PW-1/10 and Ex.PW-1/11 respectively). PW-1 has also deposed that the plaintiff has maintained the account ledger of the defendant, containing details of debit and credit for the period of 1.4.2008 to 10.8.2010 which has been filed on record and the same is exhibited as Ex.PW-1/12. PW-1 has further deposed that as there was no positive response from the defendant, plaintiff company was compelled to issue a legal notice dated 21.09.2010 which was duly served upon the defendant. Legal notice along with postal receipts have been exhibited as Ex.PW-1/13 and Ex.PW-1/14 respectively. Acknowledgment card signed by the defendants, showing service of the legal notice dated 21.09.2010 is exhibited as Ex.PW-1/15. It has further been deposed that the plaintiff company issued another legal notice dated 20.4.2011 through Regd. Post and by courier, however, the defendant company neither replied to the aforesaid legal notice nor paid the suit amount. Copy of the said legal notice along with postal receipt and acknowledgment are exhibited as Ex.PW-1/16 (colly.). Another legal notice dated 17.09.2011 issued by the plaintiff company which was also served upon the defendant along with acknowledgment has been exhibited as Ex.PW-1/17 (Colly.).
10. I have heard counsel for the parties, perused the plaint and documents placed on record in support of the pleas raised by the plaintiff in the suit as also the affidavit by way of evidence filed by PW-1.
11. PW-1 has proved the contract between the parties as also the confirmed agreement which have been exhibited as Ex.PW-1/5 and Ex.PW-1/6 respectively. PW-1 has also proved the additional work orders placed by the defendant with the plaintiff which have been exhibited as Ex.PW-1/7 and Ex.PW-1/8, various letters issued by the plaintiff to the defendant demanding the outstanding amount due to them, have been exhibited as Ex.PW-1/9 to Ex.PW-1/11, account ledger maintained by the plaintiff with respect to the defendant containing details of amounts due from the defendant which has been exhibited as Ex.PW-1/12. Three legal notices sent by plaintiff to defendant along with their postal receipts and acknowledgment cards to which no reply was received from the defendant, have been exhibited as Ex.PW-1/13 to Ex.PW-1/17.
12. Having regard to the submissions made and taking into consideration the evidence of the plaintiff which has gone unrebutted as also the documents placed on record, the present suit is decreed in favour of the plaintiff and against the defendants in the sum of Rs.23,88,505/- together with pendente lite and future interest @ 8% per annum.
13. Decree sheet be drawn up accordingly.
