Showing posts with label When written statement not filed within thirty days.order 8 rule 10 of CPC. Show all posts
Showing posts with label When written statement not filed within thirty days.order 8 rule 10 of CPC. Show all posts

Thursday, 31 January 2013

When written statement not filed within thirty days.


When written statement not filed within thirty days.

Procedure when party falls 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 judgement against him, or make such order is relating to the suit as it thinks fit and on the pronouncement of such judgement a decree shall be drawn up.

IN THE HIGH COURT OF DELHI AT NEW DELHI
SUBJECT : CODE OF CIVIL PROCEDURE
Date of decision: December 20th, 2007
CM No.4155/07 in RFA No. 176/07 and RFA.No.176/07
M/s. Guru Nanak Mechanical Works and ors. ... Appellant
Through Mr. Purshottam Singh, Advocate
Versus
Shri. R.K. Dutta ... Respondent
Through Mr.S.K. Garg, Advocate
Coram :
HON'BLE MR.JUSTICE MANMOHAN SARIN
HON'BLE MR.JUSTICE SUDERSHAN KUMAR MISRA
MANMOHAN SARIN, J
1. Appellant has preferred this Regular First Appeal against the order dated
9.12.2006 passed by the Mr. D. C. Anand, Additional District Judge, Delhi by which the
suit filed by the respondent was decreed under the provisions of Order 8 R. 10 CPC on
the failure of the appellant to file the written statement. Learned judge proceeded on the
ground that no written statement can be placed on record after 90 days of service of
summons on the defendant. In the present case defendant/appellant was served on
6.5.2006. Permission of the court was taken while filing the written statement on
25.8.2006 which is the mandate of law in case the written statement is to be taken on
record on record beyond the period of 90 days.
2. As a short question is involved, with the consent of parties the appeal is taken up
for disposal. Brief Facts of the case are: i) Appellant had quoted for the supply of a High
Speed Power Press Line of 150 ton capacity along with a Grippen Feeder and Combined
Decoiler cum straightener, a price of Rs. 8,40,000/-. The supply was to be made within 8-
9 weeks from the date of the order. Advance payment of Rs.1,50,000/- was made by the
respondent. In between, there was increase in the price of steel and revised quotation with
in increase in the price of machine by 25% i.e., to Rs. 10,00,000/- (Rs. Ten Lacs) was
submitted. Respondent accepted the revised price and remitted further advance. A total
sum of Rs.2,50,000/- (Rs. Two Lac Fifty Thousand) was paid by the respondent to the
appellant as advance. Respondent also remitted a sum of Rs.1,12,000/- for purchase of 30HP Eddy Current Drive motor instead of Seimens Electric Motor. (ii) Appellant on
account of financial difficulties being faced required further advance to complete the
manufacture and deliver the machine. Respondent thereupon paid a further sum of
Rs.2,00,000/- vide Pay Order No.800138 dated 4.10.2004 Appellant had assured that the
machine would be ready for trial and testing by 15.10.2004 and finally delivery would be
given by 20.12.2004 A penalty of Rs.15,000/- per day was agreed for delay in delivery.
This penalty was to be increased to Rs.20,000/- if the delivery was delayed beyond
25.10.2004 iii) Appellant could not deliver the machine until 18.2.2005. A further sum of
Rs.2,50,000/- and another sum of Rs.1,00,000/- was paid by the respondent to the
appellant vide Pay orders Nos. 812561 dated 29.1.2005 and 813038 dated 17.2.2005
respectively. The machine was delivered on 18.2.2005. iv) Respondent has filed a suit,
claiming damages of Rs.15 lacs together with pendente lite and future interest @ 18% per
annum. The plaintiff averred in the plaint that it was entitled to claim Rs.30,57,000/- out
of which Rs.23,75,000/- is claimed on account of the penalty and the rest on account of
non-supply of the items, as averred in para 30 of the plaint. However, plaintiff confined
his claimed to Rs.15,00,000/- (Rs. Fifteen Lacs) together with pendente lite and future
interest @ 18% per annum from the date of filing of the suit.
3. We may note some of the relevant dates. The appellant was duly served with
summons on 6.5.2006 and appeared in Court on 18.5.2006. The case was adjourned to
21.7.2006 since the presiding officer was on leave. On 21.7.2006, the appellant sought
time to file written statement. The case was adjourned to 25.8.2006. Appellant was
granted time to file written statement within the 90 day period from the date of service
i.e. upto 5.8.2006. The next date given for admission/denial of documents was 25.8.2006.
The appellant tendered the written statement on the date when he appeared on 25.8.2006
but without any application seeking condonation of delay in filing of the written
statement.
4. Learned Additional District Judge adjourned the matter for further proceedings to
8.9.2006 when an application under Order 8 R. 10 CPC was also moved by the
respondent culminating in passing of the order dated 9.12.2006 decreeing the suit under
Order 8 R. 10 CPC.
5. Learned counsel for the respondent at this stage submitted that not only was the
machine defective, their essential accessories and parts, which were required to be
supplied as per the original contract were also not supplied. Learned counsel for the
appellant submitted that this is a case where the appellant has suffered on account of
casual approach and neglect of the counsel. It submitted that the appellant was always
prepared with the case, ready and willing to file written statement but was not advised by
his counsel with regard requirement of filing written statement within the stipulated time
and consequences of non filing thereof. Learned counsel for respondent refuted the same
by urging that the appellant /defendant's partner had appeared on 21.7.2006 and was thus
aware of the requirement of filing the written statement within 90 days. Besides
ignorance of law was no ground. Learned counsel for the respondent objected to the same
and submitted that the defendant himself had appeared at the threshold and was,therefore, required to file the written statement and ignorance of law cannot be urged at
this stage.
6. We have considered the matter. There is a delay of 22 days and the appellant has
tendered a plausible explanation for the same. Even if the appellant became aware of the
direction to file written statement within 90 days from service on 21.7.2006, it does not
negate the plea that he was not advised by the counsel about the consequences emanating.
The appellant tendered the written statement on 25.8.2006 unsupported by an application.
This tends to support the appellant's argument that the counsel had adopted a casual
approach. Appellant has tendered a plausible explanation for delay in filing of the written
statement, which deserves to be accepted. Reference may be invited to the judgment of
the Supreme Court in Salem Advocate Bar Association, Tamil Nadu Vs.Union of India
reported at 2005 AIR Supreme Court 3353, wherein the Court held that the provisions of
Order VIII Rule 1 CPC, providing for upper limit of 90 days to file written statement is
directory and that the order extending time beyond that cannot be made in routine. Time
can be extended only in exceptionally hard cases. Reference is also invited to the decision
of this Court in Prem Lata Vs.Rajinder Soni reported at 2006(126) DLT 168 with regard
to extension of time beyond 90 days period.
7. Leaving that apart and considering the nature of the relief sought and the
transaction involved, in our view this is a case where the respondent should have been
called upon to prove the loss and damages suffered and sustained by it rather than
proceeding to decree the suit under Order 8 R. 10 CPC. The court is vested with this
discretion even on account of the failure of the party to file the written statement.
Reference may be made to Balraj Taneja vs. Sunil Madan (1999) AIR (SC) 381 wherein
the Supreme Court observed: The court has not to act blindly upon the admission of a
fact made by the defendant in his written statement nor the court should proceed to pass
judgment blindly merely because a written statement has not been filed by the defendant
traversing the facts set out by the plaintiff in the plaint filed in the court. In a case,
specially where a written statement has not been filed by the defendant, the court should
be a little cautious in proceeding under Order 8 Rule 10 CPC. Before passing the the
judgment against the defendant it must see to it that even if the facts set out in the plaint
are treated to have been admitted, a judgment could possibly be passed in favor of the
plaintiff without requiring him to prove any fact mentioned in the plaint. It is a matter of
courts satisfaction and, therefore, only on being satisfied that there is no fact which need
proved on account of deemed admission, the court can conveniently pass a judgment
against the defendant who has not filed the written statement. In Syed Ismail and Anr. v.
Smt. Shamshia Begum and Anr. AIR 2000 KANT 34 it was held: The impugned order
does not disclose the nature of pleading placed by the plaintiff and whether there is prima
facie material to grant a decree in his favour. A judgment in favour of plaintiff is not
automatic. The Court has to consider the case of the plaintiff and grant a decree in his
favour. The learned trial Judge has not referred to the pleadings of the plaintiff and the
documents produced by him to substantiate even a prima facie case for grant of a decree
in his favour. Therefore the judgment and decree in favour of the plaintiff is not
automatic on failure of the opposite party to put his defence. The Court can grant a
judgment in favour of the party only upon consideration of the case of the plaintiffincluding appreciation of pleadings and evidence. Similar view was taken in Alson
Motors v. Sh. Rajesh Kumar AIR 1993 Jammu and Kashmir
12. It was further observed that mere statement that the suit of the plaintiff is decreed
under Order 8 Rule 10 cannot be sustained. In Indradhanush T.V. Pvt. Ltd. vs. National
Film Development Corporation 2006(3) AD(Delhi) 104 it was observed 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 suit as
it thinks fit. In the context of 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 written statement is not filed and instead pass such other order as it may
think fit in relation to the suit. In view of the aforesaid judicial pronouncements, we are
of the view that in the present case, the appellant deserves to be permitted to contest the
suit on merits and the delay of 20 days in filing of the written statement beyond the 90
days period deserves to be condoned in this case. We also notice that plaintiff has averred
in the plaint that even though he is entitled to Rs. 30,57,700/- (Rs. Thirty Lacs Fifty
Seven Thousand Seven Hundred) he is only making a claim for Rs. 15,00,000/- (Rs.
Fifteen Lacs). The said claim in the plaint is not based on any admitted amount. A
substantial portion of the claim in the plaint is attributable to the penalty claimed.
Respondent, in the circumstances, has also not averred that the penalty as stipulated was
pre- estimate of damages which the party had incurred . We are of the view that the
quantum of loss and damages incurred by the respondent requires to be proved by
evidence. Respondent would also have to prove having suffered the damages and loss as
claimed. We accordingly, condone the delay in the filing of written statement and set
aside the impugned order directing the written statement to be taken on record, subject to
costs of Rs.15,000/-. Rs.7,500/- to be paid to the respondent and Rs.7,500/- to be paid to
the Delhi High Court Legal Services Committee. At this stage, learned counsel for the
respondent prays that the direction be given for expediting the trial as the decree suit has
been set aside and the respondent is being required to prove his case on merits. The trial
of the suit is expedited. The Trial Court shall endeavour to conclude trial within six
months from today. Appeal stands allowed in the above terms.
Sd./-
MANMOHAN SARIN, J.
Sd./-
SUDERSHAN KUMAR MISRA, J
. December 20, 2007