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2023 DIGILAW 548 (GUJ)

CUBE CONSTRUCTION ENGINEERING LIMITED v. SURAT MUNICIPAL CORPORATION

2023-03-31

N.V.ANJARIA, SANDEEP N.BHATT

body2023
JUDGMENT : N.V. ANJARIA, J. 1. The questions that arise, in the peculiar facts and circumstances of the case, is whether the written statement by respondent-defendant in the Commercial Suit instituted by the petitioner, could be treated to have been filed within permissible period of 120 days. What could be the effect if the written statement available to be filed within the stipulated period could no be filed for the reason that the suit proceedings stood adjourned on account of absence of learned advocate for the plaintiff, even-though, on that day, the written statement was available and was proposed to be filed. 2. The challenge in this Special Civil Application by the petitioner-original plaintiff is addressed to order dated 22.11.2019 below Exh.12 passed by learned 2nd Additional Senior Civil Judge, Surat the Commercial Court, in Commercial Civil Suit No. 17 of 2019. Thereby the commercial court below rejected the prayer of the plaintiff to forfeit the right of the defendant to file written statement and to pass decree in plaintiff’s favor. The court permitted the defendant to file written statement. 3. The facts inter alia are that the respondent Surat Municipal Corporation invited tender in October, 2009 for the purpose of work of development of BRTS corridor from Dumus esort Club to Kharvanagar. The petitioner herein came to be awarded the project work at the estimated cost of Rs.86,70,00,000/-. 3.1 On 3.7.2019 the petitioner filed Commercial Civil Suit No. 70 of 2019 against the present respondent Corporationoriginal defendant for recovery of Rs.14,63,30, 345/- for damages and loss of property before the Commercial Court at Vadodara. The said commercial suit came to be transferred to the court of learned Additional Senior Civil Judge, Surat. 3.2 The court issued summons to the respondent- defendant on 10.7.2019. The returnable date was 30.7.2019. The summons was served upon the defendant Surat Municipal Corporation on 12.7.2019. On 30.7.2019, which was the returnable date, the suit was adjourned to 14.9.2019 since learned Judge was on leave. On the said date, learned advocate for the defendant Corporation appeared and filed Vakalatnama and also submitted application praying for time to file the written statement. 3.3 The case was adjourned to 19.10.2019 The defendant’s case was that upto that date it could not file written statement for want of information, instructions and documents which were required to be collected from the departments of the Corporation. 3.3 The case was adjourned to 19.10.2019 The defendant’s case was that upto that date it could not file written statement for want of information, instructions and documents which were required to be collected from the departments of the Corporation. Adjournment application was filed seeking further time, which was rejected by the court. The stage for filing written statement was closed. The case stood adjourned to 8.11.2019. 3.4 It is not in dispute that the written statement of the defendant Corporation was notarized on 26.10.2019, when the proceedings of the suit were posted on 8.11.2019. The defendant filed application Exh.12 in which it was prayed for reopening of right to file the written statement and condone the delay. The limitation for filing written statement had started to run from 13.7.2019 as the summons was served, as stated above, on 12.7.2019. The day of 8.11.2019 was 119th day, reckoned from the date of service of summons. As on 8.11.2019, learned advocate for the plaintiff was absent therefore the court below adjourned the application Exh.12 to 22.11.2019 for reply and hearing of application. 3.5 On 21.12.2019, application by plaintiff at Exh.13 was moved seeking to forfeit the right of the defendant to file written statement and for pronouncement of judgment against the respondent on the ground that the defendant- respondent had not filed the written statement. According to the defendant, the total period of 120 days available for filing written statement had expired on 9.11.2019, which being a non-working Saturday, the written statement was required to be filed on or before 11.11.2019 and that it had become barred by limitation. It was the case that the court below could not have allowed the application Exh.12. It was the case that in view of the provision of Order VIII Rule 1 read with Order VIII Rule 10 of Civil Procedure Code, 1908, the period within which the written statement could have been filed had expired. 3.6 On 22.22.2019, after hearing both the parties, the court below allowed the application Exh.12. The defendant was permitted to file written statement. All the above dates and details are on record, and are reflected from the rojkaam of the court below, copy of which figures on the record of the petition. 4. 3.6 On 22.22.2019, after hearing both the parties, the court below allowed the application Exh.12. The defendant was permitted to file written statement. All the above dates and details are on record, and are reflected from the rojkaam of the court below, copy of which figures on the record of the petition. 4. Learned advocate for the petitioner made following submissions: (i) By virtue of newly inserted provisions of Order V Rule 1 and Order VIII Rule 1, CPC, the time limit of 120 days was mandatory to be observed in filing the written statement, therefore the commercial court below was prohibited from taking the written statement on record after such maximum period. (ii) The contention of the defendant that the written statement was filed on 8.11.2019, that is on 119th day, was factually incorrect, contrary to record. (iii) The very fact that the respondent relied on doctrine of relation back itself shows that the written statement was filed on 22.11.2019 and not on 8.11.2019. The Rojkaam showed that the written statement was filed on 22.11.2019. (iv) Under the provisions of CPC, what was to be filed within prescribed time limit was the written statement itself and merely filing the delay condonation application or right to reopening the application was not sufficient. (v) It could be dangerous to hold that mere filing of application without filing written statement would be sufficient. (vi) Mandatory period contemplated for filing written statement could not be circumvented indirectly or on the ground of doing substantial justice. (vii) Learned advocate for the petitioner relied on the decision of the Supreme Court in SGG Contracts (India) (P) Limited vs. K.S. Chamankar Infrastructure (P) Limited, (2019) 12 SCC 210 . Another decision in Jayatma Informatics Private Limited vs. HCL Infosystems Limited, being Special Civil Application No. 13430 of 2017, of the Division Bench of this court for the same purpose to submit that the period of limitation prescribed in the aforesaid provisions was to be observed mandatorily. 4.1 On the other hand, learned advocate for the respondent Corporation submitted that defendant had presented the written statement on 8.11.2019, it was before 120 days. 4.1 On the other hand, learned advocate for the respondent Corporation submitted that defendant had presented the written statement on 8.11.2019, it was before 120 days. It is submitted that when the said period had not expired and the defendant was ready with the statement but the same was not tendered in view of absence of plaintiff’s advocate and when the court after adjourning the case to 22.11.2019 allowed the application Exh.12 to permit the defendant to file written statement, it was required to be treated to have been filed on 8.11.2019 only to be within limitation. Learned advocate submitted that the procedure is intended to sub-serve the cause of justice and the procedural aspect should not be operated as punishment to the parties or to deprive the parties a valuable right in the instant case of filing of written statement. It was submitted that the filing of the written statement ought to have been related back to 8.11.2019. 5. Since the question is about right to file the written statement and whether the written statement could be said to be within limitation, the relevant provisions of Code of Civil Procedure, 1908 as per the amendments in the Commercial Courts Act, 2015 to be applied to the commercial suits, may be looked at, at the outset. The Commercial Courts, Commercial Division and Commercial Appellate Division of High Courts Act, 2015 came into force on 23.10.2015 bringing certain amendments to the Code of Civil Procedure. 5.1 In Order V Rule 1 (1), CPC the original second proviso came to be substituted with the following proviso inserted: “Provided further 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 days, 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 and 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. ” 5.1.1 Similarly in Order VIII Rule 1, the following proviso was substituted: “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 and twenty days from the date of service of summons and on expiry of one hundred and 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.” 5.1.2 What was provided in proviso substituted as above came to be reemphasized by inserting yet another proviso to Order VIII Rule 10, CPC, reading as under: “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 pronouncement of such judgment a decree shall be drawn up.” 5.2 While the above provision allows total 120 days to file written statement, whether in the present case the defendant could be said to have abided by the said time limit for the purpose of its written statement, has to be ascertained from the facts operative in the case, highlighted in para 3.1 to 3.6 hereinabove. 6. The facts and events are important in this case, when the plaintiff filed his application exhibit 12, on 08.11.2022 for seeking order to reopen the right to file the written statement, it was 119th day reckoned from the date of service of summons on the defendant. It is the specific case on facts of the defendant-respondent herein that on that day, the written statement was ready to be filed to be brought on record of the proceedings. The copy of the written statement which figures on record of the petition shows that the same was affirmed and notarised on 26.10.2019. It is the specific case on facts of the defendant-respondent herein that on that day, the written statement was ready to be filed to be brought on record of the proceedings. The copy of the written statement which figures on record of the petition shows that the same was affirmed and notarised on 26.10.2019. In the date mentioned in the written statement, it could be seen that 8th November was mentioned. It suggested that the defendant had ready with it the written statement and the same was tendered the date of 8th November, 2019 to be filed before the Court. There already an application before the Court by the defendant praying to get its right to file written statement reopened. 6.1 On that day, that is, on 08.11.2019, however, the learned advocate for the plaintiff was absent. On account of absence of learned advocate for the plaintiff, the proceedings in the suit did not take place. The rojkam, copy of which forms part of the petition, undisputedly mentions that the learned advocate for the defendant was present but the learned advocate for the plaintiff was absent. The Court therefore, on account of absence of learned advocate for the plaintiff, adjourned the suit proceedings to 22.11.2019 for filing the reply. 6.2 It is due to this reason that the defendant remained unavailable to file written statement, which was prepared and was ready and available to be filed. However, the defendant was prevented by the circumstances of 10 days above from filing the written statement. 6.3 It is therefore evident that non-filing of written statement on 08.11.2019 by the defendant was due to the circumstances beyond the control of the defendant. Inaction, fault or lapse was not attributable to the defendant that he did not file written statement within stipulated period of 120 days. It was the adjournment of the proceedings for the above reason that the postponement of acceptance of written statement occurred. 6.4 The Rojkam suggests, on the ground of absence of learned advocate for the plaintiff, the Commercial Court below ordered the application exhibit 12 to be listed on 22.11.2019 for reply and hearing. The written statement was not taken on record for which defendant could be said to be helpless. 6.4 The Rojkam suggests, on the ground of absence of learned advocate for the plaintiff, the Commercial Court below ordered the application exhibit 12 to be listed on 22.11.2019 for reply and hearing. The written statement was not taken on record for which defendant could be said to be helpless. At this stage, it may be noted that though the date in the written statement was mentioned as 08.11.2019 to be ready to be submitted, on that day, the figure came to be overwritten by figure 22 as the next date was 22.11.2019 and the defendant sought his right to file written statement as the proceedings were kept on that day, as stated above. 6.5 The Commercial court below while allowing the application Exh.12 of the defendant by order dated 22.11.2019 observed that the right of the defendant to file written statement, which was closed on 19.10.2019, was prayed to be reopened by plaintiff by filling application on 8.11.2019, and that the said application was filed before the expiry of limitation period. It was stated that the application Exh.12 of the defendant could not be heard as learned advocate for the plaintiff was absent, according to the commercial court below, when the defendant had shown readiness to tender the written statement. It was further observed that the suit was filed against the Corporation for the recovery of huge amount of Rs.14,63,30,345/-. 6.6 It was observed that the written statement could not be filed by the defendant in relation to the response to the various contentions of the plaint, since the Corporation was required to co-ordinate amongst the different departments of the Corporation for collecting the instructions and the documents. Thus, the court noticed sufficient cause for the defendant in not being able to file written statement within the initial 30 days and concluded that the Corporation was entitled to file written statement, in the facts and circumstances of the case, which was proposed to be filed on 119th day to be within period of limitation, but could not be filed for want of presence of plaintiff’s advocate. 6.7 The material date to adjudged as to whether the written statement could have been filed within the outer limit of limitation was 8.11.2019. The defendant could have completed the formality of written statement but for the above reason, was beyond his control. 6.7 The material date to adjudged as to whether the written statement could have been filed within the outer limit of limitation was 8.11.2019. The defendant could have completed the formality of written statement but for the above reason, was beyond his control. The court on 22.11.2019 granted application Exh.12 and accepted the written statement on record, it deemed to have been accepted on 8.11.2019. The way and manner in which the facts, events, circumstances operated could be said to be attracting the doctrine of relation-back or the analogous principle to treat the written statement to have been filed on 8.11.2019 within the stipulated period. While it is true that when the outer limit of the limitation is provided for filing written statement, on the spacious ground of substantial justice, the said time limit could not be circumvented. However, the facts in the present case are peculiar, where the filing of the written statement could be treated to have been filed and deemed to have been filed within the period of limitation. 6.8 The facts and circumstances of the case are such where the court would not permit the vagaries of procedure and uncertainties in the court proceedings to sacrifice the right of the defendant with whom the written statement was otherwise available and ready to the filed within the stipulated period of limitation. It was procedural snag which kept the defendant away on 8.11.2019, from exercising its substantive right of defending the suit of filing written statement. 7. For the forgoing reasons and discussion, the order dated 22.11.2019 of learned 2nd Additional Senior Civil Judge, Surat - the Commercial Court, reopening the right of reply and permitting the defendant to file written statement is upheld and sustained. The defendant shall be permitted to file its written statement. The suit shall proceed in accordance with law. The petition fails and is dismissed. Rule is discharged. FURTHER ORDER At this stage, learned advocate Mr. Salil Thakore for the petitioner prays for stay of this judgment in order to enable the petitioner to approach higher forum. It was submitted that during the proceedings of the Special Civil Application, further proceedings of Commercial Suit No. 70 of 2019 was stayed. In the facts and circumstances of the case, the present judgment and order shall remain in abeyance for a period of ten weeks from today.