Delhi High Court
Amarendra Dhari Singh vs R.C. Nursery Private Limited on 9 January, 2023
Author: Navin Chawla
Bench: Navin Chawla
Neutral Citation Number 2023/DHC/000150
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Reserved on:07.12.2022
Date of decision: 09.01.2023
+ CS(OS) 128/2022 & I.A.3550/2022
AMARENDRA DHARI SINGH ..... Plaintiff
Through: Mr.Abhimanyu Mahajan,
Ms.Anubha Goel, Mr.Mayank
Joshi and Ms.Shamhavi Kala,
Advs.
versus
R.C. NURSERY PRIVATE LIMITED ..... Defendant
Through: Mr. Aditya Dewan with Mr. Sahil
Chandra, Advs.
CORAM:
HON'BLE MR. JUSTICE NAVIN CHAWLA
I.A. 13986/2022 & 15442/2022
1. Application, I.A. 13986/2022, has been filed by the plaintiff under
Order VIII Rule 10 of the Code of Civil Procedure, 1908 (hereinafter
referred to as the 'CPC') read with Rule 4 of Chapter VII of the Delhi
High Court (Original Side) Rules, 2018 (hereinafter referred to as the
'Rules') praying for the right of the defendant to file its written statement
to be closed.
2. On the other hand, I.A. 15442/2022 has been filed by the defendant
seeking condonation of delay of 149 days in filing of the written
statement.
3. As both the applications would involve the same issue, that is,
whether the delay in filing of the written statement can be condoned, and
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if so, should be condoned, they are being disposed of by this common
order.
4. The plaintiff has filed the above suit, inter alia, praying for a
decree of Specific Performance of an alleged Oral Agreement to Sell
arrived at between the parties in relation to the property No. 10, Maulsari
Avenue, Westend Greens, A F Rajokri, South West Delhi, New Delhi-
110038.
5. The suit was first listed before this Court on 04.03.2022, when
summons were issued in the suit and were accepted by the learned
counsel appearing for the defendant. It was directed that the written
statement be filed within a period of 30 days.
6. The suit was then listed on 05.05.2022, when the defendant sought
further time to file the written statement.
7. As the written statement was not filed, the plaintiff filed I.A.
13986/2022, praying that the right of the defendant to file the written
statement be closed. The said application was listed before this Court on
31.08.2022, when the learned counsel for the defendant submitted that
the written statement has been filed on that day itself.
8. The defendant then filed I.A. 15442/2022 praying for condonation
of delay in filing of the written statement.
9. Admittedly there is a delay of 149 days in filing of the written
statement by the defendant.
10. The learned counsel for the plaintiff, placing reliance on the
judgments of this Court in Ram Sarup Lugani and Another v. Nirmal
Lugani and Others, 2020 SCC OnLine Del 1353 and Harjyot Singh v.
Manpreet Kaur, 2021 SCC OnLine Del 2629, submitted that in view of
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Rule 4 of Chapter VII of the Rules, delay beyond 90 days of the
prescribed period of 30 days of filing of the written statement, that is, a
delay of more than 120 days from the receipt of the summons by the
defendant, cannot be condoned by this Court. He submits that such delay
cannot be condoned even under Rule 16 of Chapter I of the Rules.
11. On the other hand, the learned counsel for the defendant submits
that the present suit is not a Commercial Suit as defined in the
Commercial Courts Act, 2015. He submits that the filing of the Written
Statement is, therefore, governed by the provisions of Order VIII Rule 1
of the CPC. He submits that the maximum period by which delay in
filing the written statement can be condoned is, therefore, directory in
nature, and for a good cause being shown by the defendant, delay beyond
such period can also be condoned. In support he places reliance on the
judgments of the Supreme Court in Kailash v. Nanhku, (2005) 4 SCC
480; Desh Raj v. Balkishan, (2020) 2 SCC 708; and the order dated
09.05.2022 passed by the Supreme Court in Civil Appeal No. 3788/2022
titled Bharat Kalra v. Raj Kishan Chabra.
12. Placing reliance on the order dated 15.01.2021 of this Court in
FAO (OS) 55/2020 titled Tushar Bansal & Anr. v. Jai Ambey Traders
& Ors, he submits that such delay can also be condoned by exercising
powers under Rule 16 of Chapter I of the Rules.
13. He submits that a Division Bench of this Court in its order dated
28.01.2020 passed in FAO(OS) 2/2020 titled Esha Gupta v. Rohit Vig,
has also condoned the delay beyond the period of 120 days of the receipt
of the summons by the defendant therein.
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14. I have considered the submissions made by the learned counsels
for the parties.
15. At the outset, one should consider the provision of the CPC as
applicable to the non-commercial suit in relation to the timelines for
filing of the written statement. Order VIII Rule 1 and Order VIII Rule 10
of the CPC are reproduced hereinbelow:-
"ORDER VIII
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 summons.
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10. Procedure when party fails to present written
statement called for by Court.--Where any party
from whom a written statement is required under
rule 1 or rule 9 fails to present the same within the
time permitted or fixed by the Court, as the case
may be, the Court shall pronounce judgment
against him, or make such order in relation to the
suit as it thinks fit and on the pronouncement of
such judgment a decree shall be drawn up."
16. The above provisions were considered by the Supreme Court in
Kailash (supra), and the Supreme Court held that the provision contained
in Order VIII Rule 1 of the CPC is procedural; it is not a part of the
substantive law. Though the object of Order VIII Rule 1 of the CPC is to
curb the mischief of unscrupulous defendants adopting dilatory tactics
thereby delaying the disposal of cases, in an adversarial system, no party
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should ordinarily be denied the opportunity of participating in the process
of justice dispensation. The Supreme Court held that unless compelled by
express and specific language of the statute, the provisions of the CPC or
any other procedural enactment ought not to be construed in a manner
which would leave the court helpless to meet extraordinary situations in
the ends of justice. Merely because a provision of law is couched in a
negative language implying mandatory character, the same is not without
exceptions. The Courts, when called upon to interpret the nature of the
provision, may, keeping in view the entire context in which the provision
came to be enacted, hold the same to be directory, though worded in the
negative form. The Supreme Court further held that in spite of the time-
limit appointed by Order VIII Rule 1 of the CPC having expired, the
Court is not powerless to permit a written statement being filed if the
court may require such written statement. Under Order VIII Rule 10 of
the CPC, the court need not necessarily pronounce judgment against the
defendant who failed to file written statement as required by Order VIII
Rule 1 or Rule 9 of the CPC; the Court may still make such other order in
relation to the suit as it thinks fit. I may quote from the judgment as
under:-
27. Three things are clear. Firstly, a careful
reading of the language in which Order 8 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
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nature of the provision contained in Order 8 Rule
1 is procedural. It is not a part of the substantive
law. Thirdly, the object behind substituting Order
8 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.
28. All the rules of procedure are the handmaid of
justice. The language employed by the draftsman
of processual law may be liberal or stringent, but
the fact remains that the object of prescribing
procedure is to advance the cause of justice. In an
adversarial system, no party should ordinarily be
denied the opportunity of participating in the
process of justice dispensation. Unless compelled
by express and specific language of the statute,
the provisions of CPC or any other procedural
enactment ought not to be construed in a manner
which would leave the court helpless to meet
extraordinary situations in the ends of justice. The
observations made by Krishna Iyer, J. in Sushil
Kumar Sen v. State of Bihar [(1975) 1 SCC 774]
are pertinent: (SCC p. 777, paras 5-6)
"The mortality of justice at the hands of law
troubles a judge's conscience and points an angry
interrogation at the law reformer.
The processual law so dominates in certain
systems as to overpower substantive rights and
substantial justice. The humanist rule that
procedure should be the handmaid, not the
mistress, of legal justice compels consideration of
vesting a residuary power in judges to act ex
debito justitiae where the tragic sequel otherwise
would be wholly inequitable. ... Justice is the goal
of jurisprudence -- processual, as much as
substantive."
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30. It is also to be noted that though the power of
the court under the proviso appended to Rule 1
Order 8 is circumscribed by the words "shall not
be later than ninety days" but the consequences
flowing from non-extension of time are not
specifically provided for though they may be read
in by necessary implication. Merely because a
provision of law is couched in a negative
language implying mandatory character, the same
is not without exceptions. The courts, when called
upon to interpret the nature of the provision, may,
keeping in view the entire context in which the
provision came to be enacted, hold the same to be
directory though worded in the negative form.
32. Our attention has also been invited to a few
other provisions such as Rules 9 and 10 of Order
8. In spite of the time-limit appointed by Rule 1
having expired, the court is not powerless to
permit a written statement being filed if the court
may require such written statement. Under Rule
10, the court need not necessarily pronounce
judgment against the defendant who failed to file
written statement as required by Rule 1 or Rule 9.
The court may still make such other order in
relation to the suit as it thinks fit.
33. As stated earlier, Order 8 Rule 1 is a provision
contained in CPC and hence belongs to the
domain of procedural law. Another feature
noticeable in the language of Order 8 Rule 1 is
that although it appoints a time within which the
written statement has to be presented and also
restricts the power of the court by employing
language couched in a negative way that the
extension of time appointed for filing the written
statement was not to be later than 90 days from
the date of service of summons yet it does not in
itself provide for penal consequences to follow if
the time schedule, as laid down, is not observed.
From these two features certain consequences
follow.
41. Considering the object and purpose behind
enacting Rule 1 of Order 8 in the present form and
the context in which the provision is placed, we
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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 candidate 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 8 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 the 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 8 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
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justice, and grave injustice would be occasioned if
the time was not extended.
43. A prayer seeking time beyond 90 days for
filing the written statement ought to be made in
writing. In its judicial discretion exercised on
well-settled parameters, the court may indeed put
the defendants on terms including imposition of
compensatory costs and may also insist on an
affidavit, medical certificate or other documentary
evidence (depending on the facts and
circumstances of a given case) being annexed with
the application seeking extension of time so as to
convince the court that the prayer was founded on
grounds which do exist.
44. The extension of time shall be only by way of
exception and for reasons to be recorded in
writing, howsoever brief they may be, by the
court. In no case, shall the defendant be permitted
to seek extension of time when the court is
satisfied that it is a case of laxity or gross
negligence on the part of the defendant or his
counsel. The court may impose costs for dual
purpose: (i) to deter the defendant from seeking
any extension of time just for the asking, and (ii)
to compensate the plaintiff for the delay and
inconvenience caused to him.\
45. However, no straitjacket formula can be laid
down except that the observance of time schedule
contemplated by Order 8 Rule 1 shall be the rule
and departure therefrom an exception, made for
satisfactory reasons only. We hold that Order 8
Rule 1, though couched in mandatory form, is
directory being a provision in the domain of
processual law.
46. We sum up and briefly state our conclusions
as under:
(iv) The purpose of providing the time schedule
for filing the written statement under Order 8 Rule
1 CPC is to expedite and not to scuttle the
hearing. The provision spells out a disability on
the defendant. It does not impose an embargo on
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the power of the court to extend the time. Though
the language of the proviso to Rule 1 Order 8
CPC is couched in negative form, it does not
specify any penal consequences flowing from the
non-compliance. The provision being in the
domain of the procedural law, it has to be held
directory and not mandatory. The power of the
court to extend time for filing the written
statement beyond the time schedule provided by
Order 8 Rule 1 CPC is not completely taken away.
(v) Though Order 8 Rule 1 CPC is a part of
procedural law and hence directory, keeping in
view the need for expeditious trial of civil causes
which persuaded Parliament to enact the
provision in its present form, it is held that
ordinarily the time schedule contained in the
provision is to be followed as a rule and departure
therefrom would be by way of exception. A prayer
for extension of time made by the defendant shall
not be granted just as a matter of routine and
merely for the asking, more so when the period of
90 days has expired. Extension of time may be
allowed by way of an exception, for reasons to be
assigned by the defendant and also be placed on
record in writing, howsoever briefly, by the court
on its being satisfied. Extension of time may be
allowed if it is needed to be given for
circumstances which are exceptional, occasioned
by reasons beyond the control of the defendant
and grave injustice would be occasioned if the
time was not extended. Costs may be imposed and
affidavit or documents in support of the grounds
pleaded by the defendant for extension of time
may be demanded, depending on the facts and
circumstances of a given case."
17. In Salem Advocate Bar Association, T.N. v. Union of India,
(2005) 6 SCC 344, the Supreme Court reiterated that the use of the word
'shall' in Order VIII Rule 1 of the CPC by itself is not conclusive to
determine whether the provision is mandatory or directory. In
construing this provision, support can also be had from Order VIII Rule
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10 of the CPC, which gives the power to the Court on failure of the
defendant to file written statement within the prescribed time, to
pronounce judgment against the defendant or make such other order in
relation to the suit as it thinks fit. Vesting of such power in the Court
would, therefore, make the provision of Order VIII Rule 1 of the CPC
providing for the upper limit of 90 days to file the written statement as
directory. I may quote from the judgment as under:-
"20. The use of the word "shall" in Order 8 Rule
1 by itself is not conclusive to determine whether
the provision is mandatory or directory. We have
to ascertain the object which is required to be
served by this provision and its design and context
in which it is enacted. The use of the word "shall"
is ordinarily indicative of mandatory nature of the
provision but having regard to the context in
which it is used or having regard to the intention
of the legislation, the same can be construed as
directory. The rule in question has to advance the
cause of justice and not to defeat it. The rules of
procedure are made to advance the cause of
justice and not to defeat it. Construction of the
rule or procedure which promotes justice and
prevents miscarriage has to be preferred. The
rules of procedure are the handmaid of justice and
not its mistress. In the present context, the strict
interpretation would defeat justice.
21. In construing this provision, support can also
be had from Order 8 Rule 10 which provides that
where any party from whom a written statement is
required under Rule 1 or Rule 9, fails to present
the same within the time permitted or fixed by the
court, the court shall pronounce judgment against
him, or make such other order in relation to the
suit as it thinks fit. On failure to file written
statement under this provision, the court has been
given the discretion either to pronounce judgment
against the defendant or make such other order in
relation to the suit as it thinks fit. In the context of
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the provision, despite use of the word "shall", the
court has been given the discretion to pronounce
or not to pronounce the judgment against the
defendant even if the written statement is not filed
and instead pass such order as it may think fit in
relation to the suit. In construing the provision of
Order 8 Rule 1 and Rule 10, the doctrine of
harmonious construction is required to be
applied. The effect would be that under Rule 10
Order 8, the court in its discretion would have the
power to allow the defendant to file written
statement even after expiry of the period of 90
days provided in Order 8 Rule 1. There is no
restriction in Order 8 Rule 10 that after expiry of
ninety days, further time cannot be granted. The
court has wide power to "make such order in
relation to the suit as it thinks fit". Clearly,
therefore, the provision of Order 8 Rule 1
providing for the upper limit of 90 days to file
written statement is directory. Having said so, we
wish to make it clear that the order extending time
to file written statement cannot be made in
routine. The time can be extended only in
exceptionally hard cases. While extending time, it
has to be borne in mind that the legislature has
fixed the upper time-limit of 90 days. The
discretion of the court to extend the time shall not
be so frequently and routinely exercised so as to
nullify the period fixed by Order 8 Rule 1."
18. The provisions again came up for interpretation before the
Supreme Court in Atcom Technologies Limited v. Y.A. Chunawala and
Company and Others, (2018) 6 SCC 639, wherein, the Supreme Court
reiterated as under:-
"20. This provision has come up for interpretation
before this Court in number of cases. No doubt,
the words "shall not be later than ninety days" do
not take away the power of the court to accept
written statement beyond that time and it is also
held that the nature of the provision is procedural
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and it is not a part of substantive law. At the same
time, this Court has also mandated that time can
be extended only in exceptionally hard cases."
19. At this stage, one should also take note of the amendments carried
out in the CPC for the purposes of the Commercial Suits of Specified
Value in the Commercial Courts Act, 2015. The amended provisions of
Order VIII Rule 1 and 10 read as under:-
"ORDER VIII
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 written
statement on such other day, as may be specified
by the Court, for reasons to be recorded in writing
and on payment of such costs as the Court deems
fit, but which shall not be later than one hundred
twenty days from the date of service of summons
and on expiry of one hundred twenty days from
the date of service of summons, the defendant
shall forfeit the right to file the written statement
and the Court shall not allow the written
statement to be taken on record.
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10. Procedure when party fails to present written
statement called for by Court.-Where any party
from whom a written statement is required under
rule 1 or rule 9 fails to present the same within the
time permitted or fixed by the Court, as the case
may be, the Court shall pronounce judgment
against him, or make such order in relation to the
suit as it thinks fit and on the pronouncement of
such judgment a decree be drawn up.
Provided further that no Court shall make an
order to extend the time provided under Rule 1 of
this Order for filing of the written statement.
(Emphasis Supplied)
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20. These special provisions in the Commercial Courts Act came up
for consideration before the Supreme Court in SCG Contracts (India)
Private Limited v. K.S. Chamankar Infrastructure Private Limited and
Others, (2019) 12 SCC 210, wherein, the Supreme Court laying
emphasis on the amendments carried out in the provisions of the CPC,
held as under:-
"8....... A perusal of these provisions would show
that ordinarily a written statement is to be filed
within a period of 30 days. However, grace period
of a further 90 days is granted which the Court
may employ for reasons to be recorded in writing
and payment of such costs as it deems fit to allow
such written statement to come on record. What is
of great importance is the fact that beyond 120
days from the date of service of summons, the
defendant shall forfeit the right to file the written
statement and the Court shall not allow the
written statement to be taken on record. This is
further buttressed by the proviso in Order 8 Rule
10 also adding that the court has no further power
to extend the time beyond this period of 120
days."
21. The Supreme Court in Desh Raj (supra) has held that the judgment
in SCG Contracts (India) Private Limited (supra) having been rendered
in the context of commercial disputes, would not apply to non-
commercial disputes, which shall continue to be governed by the
unamended Order VIII Rule 1 of the CPC, which has been interpreted to
be directory and as not taking away the inherent discretion of the Courts
to condone certain delays.
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22. In light of the above, I would now proceed to determine the intent
of and the interpretation to be placed to Rule 2(i) and Rule 4 of Chapter
VII of the Rules. The same are quoted hereinunder:-
"CHAPTER VII
2. Procedure when defendant appears.--If the
defendant appears personally or through an
Advocate before or on the day fixed for his
appearance in the writ of summons:--
(i) where the summons is for appearance
and for filing written statement, the written
statement shall not be taken on record,
unless filed within 30 days of the date of
such service or within the time provided by
these Rules, the Code or the Commercial
Courts Act, as applicable. An advance copy
of the written statement, together with
legible copies of all documents in
possession and power of defendant, shall be
served on plaintiff, and the written
statement together with said documents
shall not be accepted by the Registry, unless
it contains an endorsement of service signed
by such party or his Advocate.
The written statement shall also contain a
statement certifying authenticity of
document(s) filed. Where copy(ies) of
document (s) are filed, it shall be specified
in the index as to in whose custody, power
and control are the original(s) thereof.
Service of summons for the purpose of this
Rule shall only be deemed to be complete
after inspection is provided by the Plaintiff,
if such inspection is sought by an
application moved within a period of 7 days
from the receipt of first set of summons.
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4. Extension of time for filing written
statement.--If the Court is satisfied that the
defendant was prevented by sufficient cause for
exceptional and unavoidable reasons in filing the
written statement within 30 days, it may extend the
time for filing the same by a further period not
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exceeding 90 days, but not thereafter. For such
extension of time, the party in delay shall be
burdened with costs as deemed appropriate. The
written statement shall not be taken on record
unless such costs have been paid/ deposited. In
case the defendant fails to file the affidavit of
admission/ denial of documents filed by the
plaintiff, the documents filed by the plaintiff shall
be deemed to be admitted. In case, no written
statement is filed within the extended time also,
the Registrar may pass orders for closing the right
to file the written statement."
(Emphasis supplied)
23. A reading of the above provision would show that the written
statement shall not be taken on record, unless filed within 30 days of the
date of service of summons or within the time provided by the Rules,
the CPC or the Commercial Courts Act, as applicable. Therefore, the
time prescribed by the CPC, wherever applicable, is made expressly
applicable to the filing of the written statement.
24. Rule 4 of the Rules, though in the opening part thereof states that
the Court may extend the time for filing the written statement by a
further period not exceeding 90 days, 'but not thereafter,' further goes
on to state that in case, no written statement is filed within the extended
time also, the Registrar 'may' pass orders for closing the right to file the
written statement. It is settled principle of law that the word 'may' is not
a word of compulsion; it is an enabling word and implies discretion
unless it is coupled with a duty or the circumstances of its use otherwise
warrants. The use of word 'may' in Rule 4 is to confer a discretion in
the Registrar in a given case not to close the right of the defendant to
file the written statement even though the same has not been filed within
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the extended time. The discretion that was left in the Court under Order
VIII Rule 1 read with Order VIII Rule 10 of the CPC as applicable to
non-commercial suits, has been continued by the Rules.
25. It is to be kept in mind that the High Court of Delhi, at the time of
notifying the Rules in 2018, had the benefit of the CPC as applicable to
non-commercial suits as also the special provisions applicable to
Commercial Suits under the Commercial Courts Act, 2015. The High
Court would have been well aware of the interpretation placed by the
Courts on these provisions, laying special emphasis on the words used
therein. The High Court did not choose the language of the Commercial
Courts Act. This shows the intent of the High Court, in its Rule making
power, not to foreclose the discretion vested in the Court/Registrar to
condone the delay even beyond 120 days of the service of summons if
sufficient cause is shown for such non-filing. It is settled law that use of
same language in a later statute as was used in an earlier one in pari
materia is suggestive of the intention of the legislature that the language
so used in the later statute is used in the same sense as in the earlier one,
and change of language in a later statute in pari materia is suggestive
that change of interpretation is intended.
26. Applying the above principle, it must be held that the High Court,
not having adopted the language of the Commercial Courts Act, but of
the CPC as applicable to non-commercial suits, did not intend the Court
to be completely denuded of its power to condone the delay in filing of
the written statement beyond 120 days of the service of the summons.
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27. Of course, in considering the delay beyond 120 days, the court will
adopt an even more harsh and strict yardstick in determining the
sufficiency of cause shown, as has been held in Kailash (supra).
28. In Ram Sarup Lugani (supra), a Division Bench of this Court was
considering Rule 5 of Chapter VII of the Rules, which read as under:-
"CHAPTER VII
5. Replication.-The replication, if any, shall be
filed within 30 days of receipt of the written
statement. If the Court is satisfied that the plaintiff
was prevented by sufficient cause for exceptional
and unavoidable reasons in filing the replication
within 30 days, it may extend the time for filing
the same by a further period not exceeding 15
days but not thereafter. For such extension, the
plaintiff shall be burdened with costs, as deemed
appropriate. The replication shall not be taken on
record, unless such costs have been paid/
deposited. In case no replication is filed within the
extended time also, the Registrar shall forthwith
place the matter for appropriate orders before the
Court. An advance copy of the replication
together with legible copies of all documents in
possession and power of plaintiff, that it seeks to
file along with the replication, shall be served on
the defendant and the replication together with the
said documents shall not be accepted unless it
contains an endorsement of service signed by the
defendant/ his Advocate."
(Emphasis supplied)
29. The Division Bench laying emphasis on the words 'but not
thereafter', held that the Court cannot extend the period for filing the
replication beyond the outer limit of 45 days as mandated in the Rules,
and upon expiry of the said period, the plaintiff's right to file the
replication would stand extinguished. However, it must be noticed that
unlike Rule 4 of the Rules which states that 'in case, no written
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statement is filed within the extended time also, the Registrar may pass
orders for closing the right to file the written statement,' no such
discretion was vested in the Registrar or the Court by Rule 5 of the
Rules. Rule 5, in fact, mandates the Registrar to forthwith place the
matter for appropriate order before the Court. This difference in
language used cannot also be said to be without any purpose. The
judgment in Ram Sarup Lugani (supra), therefore, cannot govern the
interpretation to be placed on Rule 4 of the Rules.
30. In Harjyot Singh (supra), the learned Single Judge of this Court,
placing reliance on the Ram Sarup Lugani (supra), held that the Court
does not have the power to condone a delay of beyond 90 days in filing
of the written statement. However, in holding so, the learned Single
Judge did not take notice of the difference between Rule 4 and Rule 5 of
the Rules, as has been highlighted hereinabove. It also did not take note
of the earlier judgment of the Division Bench of this Court in Esha
Gupta (supra), which taking note of Rule 4 of the Rules and placing
reliance on Desh Raj (supra), condoned the delay in filing of the written
statement beyond the period of 120 days of service of summons.
31. In view of the above, it is held that though normally the learned
Registrar/Court, in a non-commercial Suit, shall not condone the delay
in filing of the Written Statement beyond a period 120 days of the
service of summons on the defendant, the learned Registrar/Court may,
for exceptionally sufficient cause being shown by the defendant for not
filing the written statement even within the extended time, grant further
extension of time to the defendant to file the Written Statement. On
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such exceptionally sufficient cause been shown by the defendant, the
Court is not powerless. It must exercise the discretion vested in it to
ensure that procedural law does not trump over the endeavour to ensure
that justice is done and the defendant is not condemned unheard. Again,
even while exercising such discretion in favour of the defendant, the
Court may adequately compensate the plaintiff and burden the
defendant with exemplary costs so that injustice is not done to the
plaintiff as well. The above cited test propounded by the Supreme Court
in Kailash (supra) shall have to be kept in view by the Court while
considering an application filed by the defendant seeking condonation
of delay in filing of the written statement beyond 120 days of the receipt
of the summons.
32. In the present case, the defendant has explained the reason for
delay in filing of the written statement, stating as under:-
"8. That pursuant to the hearing dated
04.03.2022, the counsel for the Defendant
received instructions to draft the Written
Statement for which extensive consultation with
different persons was required since the Plaintiff
has instituted multiple proceedings based on the
same transaction involving the same parties which
are detailed in the following paragraphs. Further,
the facts and circumstances of the present Suit are
intricately linked with ongoing investigations
being carried out by Economic Offences Wing,
Delhi Police ('EOW') and the Enforcement
Directorate ('ED') on the basis of a complaint
filed by Mrs. Aditi Singh, the mother of the
shareholders of the Defendant against a notorious
conman who had been committing extortion with
her misusing the name and image of the highest
officers of the country and extorting money from
her in the name of party funds. Mrs. Aditi Singh
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therefore has complete knowledge not only of the
circumstances surrounding the transaction which
led to the filing of the instant suit by the Plaintiff
but also of the investigation. Ascertaining the true
and updated facts and circumstances required
time and hence resulted in delay in filing of the
Written Statement. Further, it is stated that every
now and then, new information surfaces, and till
date recoveries of money from the said conman
have been meager and, in any case, no money has
been returned back to Mrs. Aditi Singh for whom
the money was given by the Plaintiff. Copy of the
media reports relating to ongoing investigation
and copy of the Press Release dated 30.04.2022
issued by the Enforcement Directorate is annexed
herewith and marked as Document - 1 (Colly).
Further, as recently as in the last week of August
2022, ED has filed a supplementary complaint in
the matter. At present, both ED and EOW
continue to investigate the matter.
9. That due to the victimization that happened
with Mrs. Aditi Singh in the aforesaid unfortunate
case of extortion, she has been actively engaged in
assisting the investigation and with related
activities like collating of information etc. for the
investigation, and has therefore been unable to
frequently meet with the counsels of the Defendant
and discuss with them along with the Directors of
the Defending, the filing of the Written Statement.
As such there was a delay in ascertaining the true
facts and circumstances of the present matter.
10. Further, it is a humble submission that due to
the mental and emotional trauma of the extortion
of Mrs. Aditi Singh, Mrs. Aditi Singh and her
family members including the directors of the
Defendant were also under extreme pressure and
duress. The mental and emotional trauma of the
extortion of Mrs. Aditi Singh has taken a toll on
the entire family and they are struggling to cope
up with the litigations and issues arising out of the
continuing investigations in the extortion.
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11. That Mrs. Aditi Singh and her family members
including the directors of the Defendant have been
victimized as a result of the extortion and its
consequent legal proceedings. In the event the
present Written Statement is not taken on record,
it would lead to further victimization of the family
members of the shareholders and directors of the
Defendant."
33. Though Mrs. Aditi Singh is neither a shareholder nor a Director in
the defendant company, however, keeping in view that:-
(a) the plaintiff has himself asserted in the plaint that short term
loan amounts were advanced, inter-alia, to Mrs. Aditi Singh;
(b) the plaintiff asserts in the plaint that the alleged oral
Agreement to Sell was on assurance of inter-alia Mrs. Aditi
Singh;
(c) the plaintiff asserts in the plaint that Mrs Aditi Singh is the
mother of the four shareholders of the company, each having
25% share each in the defendant company.
(d) it is not denied that on complaints of Mrs. Aditi Singh,
criminal investigations have been initiated and are pending;
(e) what has been set up is an oral Agreement to Sell for which
a huge consideration is claimed to have been paid;
(f) the written statement was filed on the day when the
application under Order VIII Rule 10 of the CPC filed by the
plaintiff was first listed before this Court; and
(g) the Written Statement already stands filed, albeit with a
delay of 149 days
in my opinion, the defendant has been able to make out an
exceptionally sufficient cause for condoning the delay in filing of the
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written statement. The exercise of such discretion in favour of the
defendant is, however, subject to payment of costs of Rs. 1 Lakh by the
defendant to the plaintiff. Such costs shall be paid by the defendant to the
plaintiff within two weeks of this order, failing which the Written
Statement shall stand expunged from the record of the Suit.
34. In view of the above, I.A. 15442/2022 filed by the defendant is
allowed subject to the above condition; and I.A. 13986/2022 filed by the
plaintiff is disposed of in the above terms.
CS(OS) 128/2022 & I.A.3550/2022
35. List on 10th February, 2023.
NAVIN CHAWLA, J.
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