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2005 DIGILAW 203 (HP)

SHOBIT CONSTRUCTION v. T. K. INTERNATIONAL LTD.

2005-06-22

V.M.JAIN

body2005
JUDGMENT V.M. Jain, J.—This order shall dispose of the present application under Rules 14 and 16 of Chapter I as well as Rules 3 and 4 of Chapter VI of the High Court of Himachal Pradesh (Original Side) Rules, 1997 read with Section 151 CPC, filed on behalf of the defendant, seeking extension of time in filing the written statement from 14.4.2004 to 21.4.2004. 2. The plaintiffs filed a suit for recovery of Rs. 5,96,42,374.36 paise against the defendant. In the said suit time upto 14.4.2004 was allowed to the defendant to file the written statement. However, the written statement was not filed by the said date. On the other hand, the written statement was filed on 21.4.2004. An application dated 21.3.2004 Bearing OMP No. 57 of 2004 under Order VIII Rule 1 read with Section 151 CPC had been filed on behalf of the plaintiffs for closing the right of the defendant to file written statement and for fixing the suit for plaintiffs evidence on the ground that the defendant had failed to file the written statement. Vide order dated 7.3.2005 the aforesaid application along with another application being OMP No. 32 of 2004 filed on behalf of the defendant regarding referring the dispute to the Arbitrator, was decided by this Court. As per the said order, the aforesaid application bearing OMP No. 57 of 2004 filed on behalf of the plaintiffs, was dismissed by this Court holding that as per Rules 1, 2, 3 and 4 of Chapter VI of the Original Side Rules framed by this Court, the defendant is to file written statement on or before the date fixed for his appearance and the time can be extended for filing written statement on a written application of the defendant detailing sufficient grounds for such extension and such application should be supported by an affidavit and if the written statement was not filed by the defendant even during the extended time the suit is required to be set down for final disposal before the court. It was further held that the defendant indeed has the right to show good cause for his default and on showing such good cause the court can allow the defendant to defend the suit subject to payment of cost. It was further held that the defendant indeed has the right to show good cause for his default and on showing such good cause the court can allow the defendant to defend the suit subject to payment of cost. After holding as above, it was noticed by this Court that the Registry in exercise of its powers had granted six weeks further extension of time to file written statement from March 3, 2004 but the defendant had failed to file any written statement even during the extended period. Accordingly, it was held that the Registry ought to have registered the case for final hearing as provided under Rule 4 of Chapter-VI of the Original Side Rules, 1997 and that this was not done by the Registry Resultantly, the plea of the plaintiffs that the defendant had lost his right to file written statement after 90 days of the service of the summons as provided under Order VIII Rule 1 CPC was not accepted and the aforesaid application filed on behalf of the plaintiffs was dismissed with the direction to the Registry to take further steps in the case in view of the observations made above. 3. As referred to above, after the aforesaid order was passed by this Court, the defendant filed the present application dated 18.4.2005 in this Court on 23.4.2005 seeking extension of time in filing the written statement from 14.4.2004 to 21.4.2004, accompanied by the affidavit of the Company Secretary of the defendant, explaining the circumstances under which the written statement could not be filed within the extended time and seeking further extension of time in filing the written statement. Notice of this application was given to the other side. The plaintiffs filed reply to the said application opposing the same. 4. I have heard learned counsel for the parties and have gone through the records carefully. 5. Notice of this application was given to the other side. The plaintiffs filed reply to the said application opposing the same. 4. I have heard learned counsel for the parties and have gone through the records carefully. 5. The learned counsel appearing for the applicant-defendant submitted before me that even the provisions of Order VIII Rule 1 CPC which are most stringent than the provisions of the various rules framed under Chapter VI of the High Court of Himachal Pradesh (Original Side) Rules, 1997, have been declared directory in nature by the Honble Supreme Court in the case Kailash v. Nanhku and others, reported as 2005(3) SCALE 740, and as such keeping in view the facts and circumstances of the present case, it was a fit case in which the applicant-defendant may be allowed to file the written statement by extending the time from 14.4.2004 to 21.4.2004 (as the written statement has already been filed on 21.4.2004). On the other hand, the learned counsel appearing for the plaintiffs submitted before me that no case was made out for extending the time to the defendant to file written statement. 6. After hearing the learned counsel and perusing the records and keeping in view the provisions of Order VIII Rule 1 CPC and the rules framed under Chapter VI of the Himachal Pradesh (Original Side) Rules, 1997, and law laid down by the Honble Supreme Court in the case Kailash v. Nanhku and others (supra) and the earlier order dated 7.3.2005 passed by this Court, in my opinion, it is a fit case where the time for filing the written statement by the defendant may be extended, subject to payment of cost. As referred to above, in the earlier order dated 7.3.2005 passed by this court, the earlier application filed on behalf of the plaintiffs for closing the right of the defendant Company to file the written statement had been dismissed by this Court with the observation that where the defendant had failed to file the written statement within the extended time the suit was required to be set down for final disposal before the court and that the defendant indeed had the right to show good cause for his default and on showing such good cause the Court could allow the defendant to defend the suit subject to payment of cost. It was in pursuance of this order dated 7.3.2005 passed by this Court that the defendant had filed the present application seeking extension of time from 14.4.2004 to 21.4.2004 to file written statement since the written statement had in fact been filed in this Court on 21.4.2004 instead of 14.4.2004, upto which the time had been allowed by this Court. Various reasons were given in the application seeking extension of time in filing the written statement. In Kailash v. Nanhku and others (supra) it was held by the Honble Supreme Court that provision of Order VIII Rule 1 CPC has to be construed as directory and not mandatory and that in exceptional situation the Court may extend the time for filing written statement even though the period of 30 days and 90 days as the case may be, had expired. It was farther held in the said authority that ordinarily the time, prescribed by Order VIII Rule 1 CPC has to be honoured and that the extension of time sought for by the defendant from the Court, whether within 30 days of 90 days, as the case may be, should not be granted as a matter of routine and merely for asking, more so when the period of 90 days had expired. It was further held that it must be spelt out that a departure from the time prescribed by Order VIII, Rule 1 of the CPC was being allowed to be made because the circumstances were exceptionally 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. It was further held in the said authority that a prayer seeking time beyond 90 days for filing written statement should be made in writing and in its judicial discretion exercised on well settled parameters, the courts may indeed put the defendant on terms including imposition of compensatory costs. It was further held that 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 and in no case the defendant shall 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. It was further held that the court may impose costs for dual purpose: (i) to deter the defendant from seeking any extension of time just for asking and (ii) to compensate the plaintiff for the delay and inconvenience caused to him. 7. In the present case since the suit is being tried by this Court on the original side, the provisions of Order VIII Rule 1 CPC were not to be directly applicable as held by the Honble Supreme Court in case Iridium India Telecom Ltd. v. Motorola INC, 2005(1) SCALE 42, since this Court has framed Original Side Rules for trial of the suit on the original side. As per Rule 3 of Chapter VI of the High Court of Himachal Pradesh (Original Side) Rules, 1997 ordinarily not more than one extension of time shall be granted to the defendant for filing a written statement, provided that a second or any further extension may be granted only on an application made in writing setting forth sufficient grounds for such extension and supported, if so required, by an affidavit. Under Rule 4 of Chapter VI of the aforesaid rules, it is further provided that if the defendant failed to file his written statement within the time allowed under Rules 2 and 3 or any time extended by order, the suit shall be set down for final disposal and the defendant appears and shows good cause for his default, he may be allowed to defend on payment to the plaintiff of such costs, if any, as may be awarded. Keeping in view the aforesaid provisions contained in the High Court of Himachal Pradesh (Original Side) Rule, 1997, in my opinion, it is a fit case where a defendant may be allowed to file the written statement by extending the time especially when the delay is only of one week i.e. with effect from 14.4.2004 to 21.4.2004 by which date the written statement could be filed by the defendant, but the written statement was filed on 21.4.2004. Furthermore, as referred to above, the suit is for the recovery of more than rupees 5 crores and in case the time for filing the written statement was not extended the same was likely to cause grave injustice to the defendant, inasmuch as, the defendant would not be able to defend the present suit filed by the plaintiff for the recovery of more than rupees 5 crores. This is especially so when the defendant has been able to make out exceptional circumstances and there is nothing on record to show that it was a case of laxity or gross negligence either on the part of the defendant Company or its counsel. For the aforesaid delay of one week in filing the written statement the plaintiff can be compensated with costs for the delay and inconvenience caused to them. 8. For the reasons recorded above, the present application is allowed and the defendant is allowed to file the written statement (which has already been filed on 21.4.2004) by extending the period from 14.4.2004 to 21.4.2004. However, this shall be subject to payment of Rs. 20,000/- as costs. The cost shall be paid on or before the next date to plaintiff No. 2 Sh.Vinod Kumar Sethi by way of bank draft for himself and plaintiff No. 1. Application allowed. -