Delhi District Court
M/S Focus Paper Pvt. Ltd vs M/S Biotropic Pharma Pvt. Ltd on 21 May, 2014
IN THE COURT OF SH. BALWANT RAI BANSAL,
ADDITIONAL DISTRICT JUDGE02 (SOUTHEAST),
SAKET COURTS, NEW DELHI
CS No. 636/13
M/s Focus paper Pvt. Ltd.
..... Plaintiff
Vs.
M/s Biotropic Pharma Pvt. Ltd.
..... Defendant
O R D E R
1. Vide this order, I shall dispose of an application U/s 151 CPC moved by the defendant for setting aside the order dated 03.08.2013.
2. It is stated in the application that on 06.05.2013 the Court had granted three weeks time to the defendant for filing the written statement on record. The counsel sent the draft of written statement to the defendant through email on 17.05.2013 but due to some unwarranted circumstances with the counsel, she was not able to finalize it and could not file the same on record. It is stated that first the counsel got fever during her trip of Himachal at her parental house in a family death ceremony and she was able to return only in the last week of May. In the meantime, in Delhi few children including niece CS No. 636/13 M/s Focus Paper Pvt. Ltd. VS. M/s Biotropic Pharma Pvt. Ltd. Page 1 of 15 of the counsel in an accident got critically injured and was admitted to Max Hospital due to which counsel could not concentrate over her court work and could not attend the court cases for around 2 months. It was only on 07.08.2013 the counsel resumed her court work again and proxy counsel had informed her about the striking of defence of the defendant due to delay in filing the WS. It is stated that delay in filing the written statement is neither intentional nor deliberate but due to the aforesaid reasons and problem of the counsel. It has been prayed that order dated 03.08.2013 may be set aside.
3. The plaintiff has contested the application by filing the reply contending that defendant is seeking review of the order dated 03.08.2013 without assigning any grounds. It is stated that all the pleas of personal problem of the counsel have already been dealt by the court and after considering the said pleas, the order dated 03.08.2013 was passed by the court. It is contended that application is misuse of law as the defendant failed to file the written statement within statutory period and even after granting 3 weeks time by the court. The other contents are stated to be wrong and denied and the plaintiff has prayed for dismissal of the application.
4. I have heard the Ld. Counsel for the parties and perused the record carefully.
5. Ld. Counsel for the defendant has argued that due to CS No. 636/13 M/s Focus Paper Pvt. Ltd. VS. M/s Biotropic Pharma Pvt. Ltd. Page 2 of 15 unavoidable circumstances she could not file the written statement within time for which defendant should not be penalized. She contended that she had sent the draft copy of written statement to the defendant through email, but she could not finalize it as she had to rush to her parents at Himachal Pradesh for attending a death ceremony and she returned in last week of May and in the meantime, in Delhi her niece in an accident got critically injured and was admitted to Max Hospital. Therefore, she could not concentrate on her work and could not attend the court cases for two months and when she joined the court she came to know that defence of the defendant was struck off. She further submitted that written statement could not be filed in time due to her aforesaid personal problem and in case the defendant is not allowed to file the written statement on record, an irreparable loss and injury shall be caused to the defendant. In support of her contentions, the Ld. Counsel for defendant has relied upon the judgments of the Hon'ble Apex Court in Sandeep Thapar Vs. SME Technologies Pvt. Ltd., Civil Appeal No. 65 of 2014, Zolba Vs. Keshao & Ors, Appeal (Civil) 2360 of 2008 and Kailash Vs. Nanhku & Ors, Appeal (Civil) 7000 of 2004.
6. On the other hand, Ld. Counsel for plaintiff vehemently argued that all the contentions raised in the application have been CS No. 636/13 M/s Focus Paper Pvt. Ltd. VS. M/s Biotropic Pharma Pvt. Ltd. Page 3 of 15 considered by the court while passing the order dated 03.08.2013 and despite that the defence of the defendant was struck off. He further argued that no new facts have been disclosed by the defendant which warrants the review of the order dated 03.08.2013. He further argued that defendant could have filed the written statement on record within three weeks time granted by the court and there is no good and sufficient explanation to condone the delay in filing the written statement in time as directed by this court. In this regard, the Ld. Counsel for the plaintiff has placed reliance on the judgment of the Hon'ble Delhi High Court in Nunhems India Pvt. Ltd. Vs. Prabhakar Hybrid Seeds.
7. Perusal of the record shows that plaintiff has filed the present suit for recovery of a sum of Rs. 3,28,148/ along with interest against the defendant. Vide order dated 06.02.2013, the defendant was directed to be served for 04.03.2013. On 06.05.2013, after service of the summons upon the defendant, Ms. Ritu Rastogi, Counsel for the defendant appeared and filed her Vakalatnama for the defendant. The defendant was directed to file the written statement within 3 weeks time and matter was adjourned for 03.08.2013. On 03.08.2013, reply which was treated as written statement was filed, but the same having not been filed within statutory period or within the time granted by the court vide order dated 06.05.2013 was not taken on record and CS No. 636/13 M/s Focus Paper Pvt. Ltd. VS. M/s Biotropic Pharma Pvt. Ltd. Page 4 of 15 defence of the defendant was struck off.
8. Now, by way of present application, the defendant is seeking setting aside the order dated 03.08.2013 by which defence of the defendant was struck off and to consider the written statement filed by the defendant on record.
9. In the application it has been contended that draft of the written statement was sent to the defendant through email on 17.05.2013, but the counsel could not finalize it as she had to visit her parents at Himachal to attend family death ceremony and she returned back in the last week of May. In between the niece of the counsel met with an accident in Delhi and was admitted in Max Hospital due to which counsel could not attend court cases for 2 months which resulted in delay in filing the written statement. The Ld. Counsel for defendant has also placed on record the photocopy of discharge summary of her niece Srishti Rustagi issued by Max Hospital to show that her niece was admitted in the hospital. The plaintiff in reply to the application has not disputed the aforesaid facts, but it has been vehemently contended that all these pleas raised by the defendant in the application were considered by the Ld. Predecessor Court while passing the order dated 03.08.2013 and therefore this application is not maintainable. He further contended that three weeks time was granted by the court to the defendant to file the written statement on CS No. 636/13 M/s Focus Paper Pvt. Ltd. VS. M/s Biotropic Pharma Pvt. Ltd. Page 5 of 15 record and the defendant could have filed the written statement on record within the said period, but the defendant has not filed the written statement within three weeks time granted by the court just to delay the proceedings of the case.
10. Perusal of the record shows that on 03.08.2013, when the defence of the defendant was struck of, proxy counsel for defendant namely Mr. Ashok Kotnala, Advocate appeared and submitted that a major accident happened in the family of main counsel in which five people and one girl died and one girl is still in hospital in critical condition due to which written statement could not be filed in time. In the last concluding para of the order it has been observed by the Ld. Predecessor Court that no application seeking extension of time in filing the written statement or for condonation of delay in filing written statement has been filed and with these observations, the defence of the defendant was struck off. It appears that since the defendant failed to file any application seeking extension of time in filing the written statement or condonation of delay in filing the written statement, the Ld. Predecessor did not consider the submissions made by the proxy counsel and struck off the defence of the defendant.
11. In Sandeep Thapar Vs. SME Technologies Pvt. Ltd., it has been held by the Hon'ble Apex Court that, "A prayer for CS No. 636/13 M/s Focus Paper Pvt. Ltd. VS. M/s Biotropic Pharma Pvt. Ltd. Page 6 of 15 extension of time made by the defendant shall not be granted just as a matter of routine and merely for 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 was needed to be given for the 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 of 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."
12. Similarly in case of Zolba Vs. Keshao & Ors. (supra), it has been observed by the Hon'ble Apex Court that, "After reading the provisions, in particular the proviso to Order 8 Rule 1 of the CPC, we are unable to hold that the provisions under Order 8 Rule 1 are mandatory in nature. In Salem Advocate Bar Association, Tamil Nadu Vs. Union of India (AIR 2005 SC 3353), it has been clearly held that the provisions including the proviso to Order 8 Rule 1 of the CPC are not mandatory but directory. It has been held in that decision that the delay can be condoned and the written statement can be accepted CS No. 636/13 M/s Focus Paper Pvt. Ltd. VS. M/s Biotropic Pharma Pvt. Ltd. Page 7 of 15 even after the expiry of 90 days from the date of service of summons in exceptionally hard cases."
13. In Kailash Vs. Nanhku & Ors case (supra) also, it has been observed by the Hon'ble Apex Court that, "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."
14. The ratio of the aforesaid judgments relied upon by the Ld. Counsel for the defendant is that though the written statement is to be filed by the defendant within 30 days from the date of service of summons on him or at the most within 90 days, but it can be extended even after 90 days in exceptional situations where the defendant has shown sufficient and good reasons for not filing the written statement within statutory period.
15. The Ld. Counsel for the plaintiff has vehemently argued that judgment passed in Kailash Vs. Nanhku & Ors case (supra) whereby it was held that provision of Order 8 Rule 1 are not mandatory but directory in nature is not a good law as held by the CS No. 636/13 M/s Focus Paper Pvt. Ltd. VS. M/s Biotropic Pharma Pvt. Ltd. Page 8 of 15 Hon'ble Apex Court in R.N. Jadi & Bros. Vs. Subhashchandra, Civil Appeal No. 2925 of 2007. In this regard, he has heavily relied upon the judgment reported in Nunhems India Pvt Ltd. Vs. Prabhakar Hybrid Seeds (cited supra), in which reference of the aforesaid two judgments of the Hon'ble Supreme Court in R.N. Jadi & Bros. Vs. Subhashchandra and Kailash Vs. Nanhku & Ors have been made. I have gone through the said judgment relied upon by the Ld. Counsel for the plaintiff. In the said judgement, the Hon'ble Delhi High Court has noticed that in R.N. Jadi, the Apex Court without disturbing the earlier view in Kailash Vs. Nanhku, put a note of caution that Kailash Vs. Nanhku is not the authority for receiving written statement, even after expiry of the period permitted by law in a routine manner.
16. Of course, in R.N. Jadi case (supra), the Hon'ble Apex Court has categorically held that, "It is true that procedure is the handmaid of justice. The court must always be anxious to do justice and to prevent victories by way of technical knockouts. But how far that concept can be stretched in the context of the amendments brought to the Code and in the light of the mischief that was sought to be averted is a question that has to be seriously considered. I am conscious that I was a party to the decision in Kailash Vs, Nankhu & CS No. 636/13 M/s Focus Paper Pvt. Ltd. VS. M/s Biotropic Pharma Pvt. Ltd. Page 9 of 15 Ors (2005 (4) SCC 480) which held that the provision was directory and not mandatory. But there could be situations where even a procedural provision could be construed as mandatory, no doubt retaining a power in the court, in an appropriate case, to exercise a jurisdiction to take out the rigor of that provision or to mitigate genuine hardship. It was in that context that in Kailash Vs. Nankhu & Ors (supra) it was stated that the extension of time beyond 90 days was not automatic and that the court, for reasons to be recorded, had to be satisfied that there was sufficient justification for departing from the time limit fixed by the Code and the power inhering in the court in terms of Section 148 of the Code. Kailash is not authority for receiving written statements, after the expiry of the period permitted by law, in a routine manner." It was further observed that "A dispensation that makes Order VIII Rule 1 directory, leaving it to the courts to extend the time indiscriminately would tend to defeat the object sought to be achieved by the amendments to the Code. It is, therefore, necessary to emphasize that the grant of extension of time beyond 30 days is not automatic, that it should be exercised with caution and for adequate reasons and that an extension of time beyond 90 days of the service of summons must be granted only based on a clear satisfaction of the justification for granting such extension, CS No. 636/13 M/s Focus Paper Pvt. Ltd. VS. M/s Biotropic Pharma Pvt. Ltd. Page 10 of 15 the court being conscious of the fact that even the power of the court for extension inhering in Section 148 of the Code, has also been restricted by the legislature."
17. From the aforesaid observations of the Hon'ble Apex Court in R.N. Jadi case, it is clear that written statement cannot be accepted after the expiry of period permitted by law in a routine manner, but in an appropriate case, the said limit can be departed. However, grant of extension of time beyond 30 days is not automatic and it should be exercised with caution and for adequate reasons.
18. In view of above, it has to be seen as to whether the justification put forth by the defendant in the application warrants the extension of time to file the written statement on record.
19. Vide order dated 06.05.2013, the defendant was directed to file the written statement on record within 3 week time, but the defendant failed to file the written statement within the said period and the written statement was filed on 03.08.2013. The defendant has explained the reasons in the present application for not filing the written statement within statutory period. It is stated that though the draft of written statement was sent to the defendant on 17.05.2013, but same could not be finalized as due to bereavement in the family of the counsel, she had to rush to Himachal Pradesh to attend the death ceremony and she returned in the last week of May. In the meantime CS No. 636/13 M/s Focus Paper Pvt. Ltd. VS. M/s Biotropic Pharma Pvt. Ltd. Page 11 of 15 her niece met with an accident and she was hospitalized in the Max Hospital due to which counsel could not attend the court cases for almost 2 months, which resulted in delay in filing the written statement.
20. The plaintiff has not disputed the aforesaid facts. Perusal of written statement filed by the defendant also shows that it was sworn by the Director of defendant company before the Oath Commissioner on 22.06.2013 and it was also verified on 22.06.2013. It shows that written statement was ready on 22.06.2013. The Ld. Counsel for defendant was asked as to why written statement, if ready on 22.06.2013, was not filed within time to which she replied that in the month of June due to summer vacations, the court was closed and thereafter due to mis happening in her family as her niece who met with an accident got hospitalized in Max Hospital, due to which she could not attend the court cases for almost 2 months and could not file the written statement in time. She further submitted that she has no junior or clerk who could have filed the written statement on record. It was also pointed out by the Ld. Counsel for defendant that defendant company being situated at Solan, Himachal Pradesh, was solely relying upon her and for the aforesaid reasons, the counsel could not file the written statement on record.
21. In my considered opinion, the Ld. Counsel for defendant CS No. 636/13 M/s Focus Paper Pvt. Ltd. VS. M/s Biotropic Pharma Pvt. Ltd. Page 12 of 15 has shown sufficient reasons for not filing the written statement on behalf of the defendant within time. It is a settled law that procedural law is handmaid of administration of justice and technicality of law should not hamper the cause of justice. The Court should make every endeavour to decide the case on merits by granting opportunity to the parties to put forth their case in order to decide the substantive rights of the parties. The ratio of the judgments relied upon by the Ld. Counsel for defendant also shows that in exceptional circumstances, the written statement beyond the period of 90 days can also be accepted.
22. So far the judgement relied upon by the Ld. Counsel for plaintiff in Nunhems India Pvt. Ltd. Vs. Prabhakar Hybrid Seeds is concerned, the facts in the said judgement are distinguishable from the facts of present case. In the said case, the defendant was served on 14.03.2011, however written statement was filed by him on 09.01.2012. The counsel for the defendant gave some personal reason for which written statement could not be filed, which explained the delay in filing the written statement from 18.10.2011 to 09.01.2012, but delay in filing the written statement from 14.03.2011 till 18.10.2011 was not explained that what prevented the defendant to file the written statement within the said period and on that account, the Hon'ble High Court held that the defendant has failed to explain the CS No. 636/13 M/s Focus Paper Pvt. Ltd. VS. M/s Biotropic Pharma Pvt. Ltd. Page 13 of 15 delay of 6 months and therefore the defendant was not granted any concession to condone the delay of 9 months.
23. But, in the present case, it is apparent that written statement was ready on 22.06.2013 along with affidavit of Director of defendant company, but due to the circumstances as explained in the application, the written statement could not be filed within time. The delay in filing the written statement was not on the part of the defendant, but due to the personal difficulty of the counsel. In my considered opinion, a party should not be penalized for the lapse on the part of the counsel, more so when the delay has been explained by the counsel. The present is a recovery suit for money filed by the plaintiff against the defendant and the defendant has also filed the written statement on record by which claim of the plaintiff is being contested. Therefore, defendant deserves an opportunity to contest the case on merits and if the written statement filed by the defendant is not taken on record, a great prejudice shall be caused to the defendant as the defendant shall be deprived from putting forth its case and defence. However, it also cannot be ignored that due to delay on the part of the defendant, case of the plaintiff has been delayed, but the plaintiff can be compensated by way of cost for delay in disposal of the case.
24. In the light of aforesaid discussions, application moved by CS No. 636/13 M/s Focus Paper Pvt. Ltd. VS. M/s Biotropic Pharma Pvt. Ltd. Page 14 of 15 the defendant u/s 151 CPC is allowed and written statement filed by the defendant is taken on record subject to cost of Rs. 25,000/ payable to the plaintiff.
Announced in open Court (Balwant Rai Bansal)
on 21.05.2014 Addl. District Judge 02 (SouthEast)
Saket Courts, New Delhi
CS No. 636/13
M/s Focus Paper Pvt. Ltd. VS. M/s Biotropic Pharma Pvt. Ltd. Page 15 of 15
CS No. 636/13
M/s Focus paper Pvt. Ltd. Vs. M/s Biotropic Pharma Pvt. Ltd.
21.05.2014 Present: Counsel for the parties.
Arguments on the application U/s 151 CPC moved by defendant heard. Put up at 4.00 pm for orders.
(Balwant Rai Bansal)
ADJ02/SE/Saket/New Delhi
At 4.00 PM
Present: None.
Vide my separate order of even date, the application moved by the defendant u/s 151 CPC is allowed and WS filed by the defendant is taken on record subject to cost of Rs. 25,000/ payable to the plaintiff. Defendant is directed to supply the copy of WS to the counsel for the plaintiff who may file replication to the same.
Put up for replication, admission/denial of documents and framing of issues on 04.07.2014. Parties to appear in person on next date for the purpose of admission/denial of documents.
(Balwant Rai Bansal) ADJ02/SE/Saket/New Delhi 21.05.2014 CS No. 636/13 M/s Focus Paper Pvt. Ltd. VS. M/s Biotropic Pharma Pvt. Ltd. Page 16 of 15