Delhi High Court
Sh. Vikrant Khanna & Ors. vs Smt. Amita Lamba & Anr. on 10 January, 2023
Author: Navin Chawla
Bench: Navin Chawla
Neutral Citation Number 2023/DHC/000152
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Reserved on: 21.12.2022
Date of decision:10.01.2023
+ CS(OS) 613/2021
SH. VIKRANT KHANNA & ORS. ..... Plaintiffs
Through: Mr.Ashutosh Lohia, Ms.Shraddha
Bhargava, Mr.Rohit Saraswat,
Advs.
versus
SMT. AMITA LAMBA & ANR. ..... Defendants
Through: Mr.Rajneesh Vats, Adv.
CORAM:
HON'BLE MR. JUSTICE NAVIN CHAWLA
I.A. 18120/2022 and O.A 50/2022
1. By the present Chamber Appeal under Rule 5 of Chapter II of the
Delhi High Court (Original) Side Rules, 2018 (in short, "the Rules"), the
plaintiffs/appellants challenge the orders dated 15.09.2022 and
06.10.2022 passed by the learned Joint Registrar (Judicial) granting
further time to the defendants/respondents to file their written statement.
2. The learned counsel for the plaintiffs/appellants, placing reliance
on the judgments of this Court in Ram Sarup Lugani & Ors. v. Nirmal
Lugani & Ors., 2020 SCC OnLine Del 1353; Shri Gautam Gambir v.
Jai Ambay Traders & Ors.,CS(OS) 149/2018; Harjyot Singh v.
Manpreet Kaur, 2021 SCC OnLine Del 26; Sameer Chaudhuri v. Dr.
Reyhan Chaudhuri, CS(OS) 283/2019 and Rohit Sharma v. A.M.
Market Place Pvt Ltd. and Others, 2021 SCC OnLine Del 3092, submits
that the time for filing the written statement by the
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defendants/respondents could not have been extended by the learned
Joint Registrar (Judicial) beyond the period of 120 days of the service of
the summons of the suit on the defendants/respondents.
3. He submits that this Court issued summons in the suit to the
defendants/respondents on 26.11.2021. Along with the suit, the
plaintiffs/appellants had filed an application, being I.A.No.15409/2021,
seeking exemption from filing the bills, vouchers, receipts, expense
sheets etc., and for grant of adequate time for filing of the detailed
documents. The said application was also allowed by this Court in its
order dated 26.11.2021.
4. The defendants/respondents in answer to the summons, appeared
before the learned Joint Registrar (Judicial) on 11.03.2022, when inter-
alia, the following order was passed:
"2. Learned counsel for the defendants submits
that he shall be filing vakalatnama on behalf of
the defendants during the course of the day. It is
further submitted by learned counsel for the
defendants that the plaintiffs, have moved an
application under Order VII Rule 1 CPC seeking
exemption from filing certain bills/vouchers etc.
which was allowed by the Hon'ble Court however
till date those documents have not been placed on
record neither copy has been supplied to the
defendants.
3. Learned counsel for the plaintiffs submits that
needful shall be done within two weeks.
4. Let the needful be done accordingly with
advance copy to the defendants after which the
defendants may file written statement, reply to the
interim application and affidavit of
admission/denial within four weeks."
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5. The learned counsel for the plaintiffs/appellants submits that the
plaintiffs/appellants duly filed the requisite documents after supplying the
copies thereof to the defendants/respondents on 25.03.2022.
6. As the defendants/respondents did not file their written statement
even thereafter, the plaintiffs/appellants filed an application under Order
VIII Rule 10 of the Code of Civil Procedure,1908 (hereinafter referred to
as the 'CPC') on 19.07.2022. Notice of this application was issued to the
defendants/respondents on 26.07.2022. In spite of application having
been served, the defendants/respondents did not file their written
statement.
7. The suit was then listed before the learned Joint Registrar
(Judicial) on 15.09.2022, when the following impugned order was
passed:
"I.A 11572/2022 (O-VIII rule 10 CPC)
1. Learned counsel for defendants seeks time of
one week for filing reply. Let the same be filed
accordingly with advance copy to opposite party
who may file rejoinder within one week thereafter.
2. Learned counsel for plaintiff has submitted that
bills/vouchers as reflected in order dated
11.03.2022 have been e-filed vide diary no
433600/2022 on 25.03.2022 and he had supplied
a copy of the same to learned counsel for
defendant through email. He further submits that
no objection was received from their end.
3. On the other hand, learned counsel for
defendant has submitted that no copy of above
said documents was received by him but defendant
had received one copy through email and same is
soft copy of ledger account. He further submits
that no copy of bills/vouchers as referred in order
dated 11.03.2022, has been supplied to the
defendants.
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4. He further submitted that no written statement
has been filed as copies of the said bills/vouchers
have not been received.
5. Learned counsel for plaintiff has been asked
whether some more documents are required to be
filed in terms of application u/O VII Rule 1 CPC
as referred in order dated 11.03.2022 to which he
has stated that he will have to take instructions
from his client.
6. It is submitted by learned counsel for plaintiff
that he will take appropriate steps within two
weeks.
7. Let the advance copy of the said documents if
any, be supplied to the defendants after which the
defendants may file written statement, reply to
interim application and affidavit of admission/
denial within 4 weeks.
8. Re-notify the matter for completion of pleadings
and further proceedings on 06.10.2022."
8. The learned counsel for the plaintiffs/appellants submits that on
11.03.2022 there was no occasion for the learned Joint Registrar
(Judicial) to inquire from the plaintiffs/appellants if any further
documents were required to be filed in terms of the application under
Order VII Rule 1 of the CPC. He submits that in any case, further time
could not have been granted to the defendants/respondents to file their
written statement.
9. The learned counsel for the plaintiffs/appellants submits that on
06.10.2022, the following order impugned in the present Chamber
Appeal was passed:
"I.A 11572/2022 (O-VIII rule 10 CPC moved by
plaintiff)
1. Time has been sought on behalf of the
defendants for filing reply to the captioned IA. Ld.
Counsel for defendants has submitted that Ld.
Counsel for plaintiff has clarified today that no
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further documents is to be filed on behalf of
plaintiff in terms of order dated 11.03.2022.
2. Let reply to the captioned IA be filed by the
defendants within three days from today with
advance copy to the plaintiff, who may file
rejoinder within two weeks thereafter with
advance copy to opposite party.
3. Re-notify the captioned IA for completion of
pleadings and further proceedings on 03rd
November, 2022.
CS (OS) 613/2021
1. Ld. Counsel for plaintiff has submitted that the
documents consisting of 569 pages have already
been filed on behalf of the plaintiff in terms of
order dated 11.03.2022 and the copy of the same
has already been supplied to Ld. Counsel for
defendant through email on 25.03.2022.
2. On the other hand, Ld. Counsel for defendant
has submitted that the said set of documents does
not have any bill, invoice or voucher in respect of
which exemption was sought by the plaintiff vide
order dated 11.03.2022.
3. Upon this, Ld. Counsel for plaintiff has
submitted that the order dated 11.03.2022 has
been complied with by submitting the aforesaid,
documents and the plaintiff does not want to file
any further document in terms of order dated
11.03.2022.
4. Ld. Counsel for defendant seeks time for filing
written statement. The same has been opposed on
behalf of Ld. Counsel for plaintiff.
5. Heard. Perusal of previous order dated
15.09.2022 would reflect that a query was put to
Ld. Counsel appearing on behalf of plaintiff as to
whether some more documents are required to be
filed in terms of application under Order VII Rule
1 of CPC as referred in order dated 11.03 .2022,
to which, he had stated that he will have to take
instructions from his client. Ld. Counsel for
plaintiff appearing today has submitted that no
further document is required to be filed in terms of
application under Order VII Rule 1 of CPC as
referred in order dated 11.03.2022.
6. Today, time has been sought on behalf of the
defendant for filing written statement stating that
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he was not aware as to whether any further
document is to be filed on behalf of the plaintiff in
terms of application under Order VII Rule 1 of
CPC.
7. Heard. In the present scenario, the defendant
may file written statement and affidavit of
admission/denial of documents within two weeks
with advance copy to the opposite party, who may
file replication and affidavit of admission/denial
of documents within two weeks thereafter.
8. Let the pleadings be completed as per law.
9. Re-notify the matter for completion of pleadings
and further proceedings on 03rd November,
2022."
10. He submits that the learned Joint Registrar (Judicial) acted without
jurisdiction in granting further time to the defendants/respondents to file
their written statement.
11. He submits that the written statement was eventually filed by the
defendants/respondents only on 29.10.2022, albeit without any affidavit
of admission/denial of the documents of the plaintiffs/appellants, thereby
making it liable not to be taken on record; and eventually in a proper
manner, on 24.11.2022, that is, much beyond the statutory period of 120
days as permitted under the Rules.
12. On the other hand, the learned counsel for the
defendants/respondents submits that the written statement could be filed
by the defendants/respondents only upon receipt of the complete set of
documents, including the documents for which the time was sought by
the plaintiffs/appellants to file at a later stage. He submits that though
certain documents were served on the defendants/respondents on
25.03.2022 by the plaintiffs/appellants, these were not in terms of the
permission obtained by the plaintiffs/appellants from this Court inasmuch
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as they did not contain the bills, vouchers, receipt etc. He submits that
even on 15.09.2022, the plaintiffs/appellants sought further time to seek
instructions and sought a period of two weeks to take appropriate steps
and, therefore, no fault can be found with the learned Joint Registrar
(Judicial) granting extension of time to the defendants/respondents to file
their written statement.
13. It is only on 06.10.2022, that the learned counsel for the
plaintiffs/appellants finally stated that no further documents were to be
filed. Therefore, the learned Joint Registrar (Judicial) granted reasonable
time to the defendants/respondents to file their written statement. He
submits that now the written statement stands filed.
14. I have considered the submissions made by the learned counsels
for the parties.
15. As far as the Rules 2 and 4 of Chapter VII of the Rules are
concerned, by the judgment dated 09.01.2023 passed in CS(OS)
128/2022 titled Amarendra Dhrari Singh v. R.C. Nursery Private
Limited, I have held that the period of 120 days provided under the said
provisions for filing of the written statement is directory in nature. I have
held that for exceptionally sufficient reason, the Court may extend the
time for the defendants/respondents to file the written statement.
16. In the present case, the plaintiffs/appellants had filed an
application, being I.A. No.15409/2021, praying for the following reliefs:
"It is therefore most respectfully prayed that in
the interests of justice, this Hon'ble Court may
kindly be pleased to exempt the
applicants/plaintiffs from filing the detailed bills,
vouchers, receipts, expense sheets etc. in relation
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to the Schedule-1 filed with the plaint and grant
adequate time for filing the detailed documents."
17. The said application was allowed by this Court on 26.11.2021. On
11.03.2022, the plaintiffs/appellants sought further time to file these
documents. It is for this reason that the learned Joint Registrar (Judicial)
granted further time to the defendants/respondents to file their written
statement on receipt of such documents. This order is not in challenge
before this Court.
18. The plaintiffs/appellants thereafter served certain documents on the
defendants/respondents and filed the same before this Court on
25.03.2022. Though the learned counsel for the defendants/respondents
submits that these documents were not in terms of the liberty that had
been granted by this Court and later by the learned Joint Registrar
(Judicial), in my opinion, it is not for the defendants/respondents to
dictate what documents the plaintiffs/appellants must file along with the
plaint or for which they have been granted an extension of time to file the
same. In case the plaintiffs had failed to file the relevant documents,
consequences in law would follow. However, the time to file written
statement would not stop merely because the defendants are of the
opinion that the documents filed are not relevant or not in terms of liberty
obtained from the Court. On receipt of the set of the documents, the
defendants/respondents should have proceeded to file their written
statement within the time granted by the learned Joint Registrar
(Judicial).
19. In any case and even if there was any doubt in the mind of the
defendants/respondents in this regard, the same should have be dispelled
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on the advance service of the application filed by the plaintiffs/appellants
under Order VIII Rule 10 of the CPC on the defendants/respondents on
19.07.2022. The defendants/respondents chose not to file their written
statement even then. Notice of this application was also issued on the
defendants/respondents vide order dated 26.07.2022 passed by the
learned Joint Registrar (Judicial), and in spite of the same, the
defendants/respondents did not file their written statement.
20. On 15.09.2022, on a plea of the defendants/respondents that the
plaintiffs/appellants had not filed the documents in terms of the liberty
granted earlier, the learned Joint Registrar (Judicial) queried the learned
counsel for the plaintiffs/appellants whether the plaintiffs/appellants wish
to file those documents. The learned counsel for the plaintiffs/appellants,
instead of emphatically stating that no further documents were to filed,
prayed for time to seek instructions. In absence of the categorical
assertion of the plaintiffs/appellants that no further documents were to be
filed, the learned Joint Registrar (Judicial) granted further time to the
defendants/respondents to file their written statement.
21. It is only on 06.10.2022 that the plaintiffs/appellants finally made
their stand clear that they do not wish to file any further documents. The
defendants/respondents thereafter filed their written statement on
29.10.2022, albeit without the affidavit of admission/denial of the
documents of the plaintiffs/appellants and, in a proper manner on
24.11.2022.
22. From the above sequences of events, it would be evident that at
least from 25.03.2022 till 15.09.2022 there is no justifiable reason with
the defendants/respondents for having not filed their written statement.
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On 15.09.2022, however, the learned counsel for the plaintiffs/appellants
sought further time to seek instructions if the plaintiffs/appellants wish to
file further documents in terms of the liberty granted. Had the learned
counsel for the plaintiffs/appellants been assertive that no further
documents were to be filed by the plaintiffs/appellants, things would have
been different. By this indecisiveness, the plaintiffs/appellants themselves
gave a reason to the defendants/respondents for grant of further time to
them to file their written statement.
23. Even thereafter, the plaintiffs/appellants did not challenge the
order of the learned Joint Registrar (Judicial) dated 15.09.2022 nor, till
06.10.2022, informed the defendants/respondents that they did not wish
to file further documents. It is only on 06.10.2022 that the learned
counsel for the plaintiffs/appellants finally informed the learned Joint
Registrar (Judicial) that the plaintiffs/appellants did not wish to file any
further documents in terms of the liberty granted to them. The learned
Joint Registrar (Judicial), therefore granted further time to the
defendants/respondents to file their written statement. In my opinion,
therefore, the plaintiffs/appellants have also contributed to the
defendants/respondents not filing their written statement within time.
24. In any case, as the written statement now stands filed, the interest
of justice would demand that the same be considered by this Court and
the defendants/respondents should not be condemned without giving
them the opportunity of putting their defence. However, the
defendants/respondents deserve to be levied with exemplary costs for the
delay in filing the written statement. Accordingly, the
defendants/respondents shall pay costs of Rs.1 Lakh (Rupees One Lakh
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Only) to the plaintiffs/appellants within a period of two weeks of this
order, failing which their written statement shall not be taken on record.
25. Accordingly, while condoning the delay in filing the present
Chamber Appeal, the same is disposed of on merits in the above terms.
NAVIN CHAWLA, J.
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