Condonation Of Delay

Source: The Hitavada      Date: 02 Jul 2018 12:16:28

As per the provisions of Order VIII Rule 1 of the Code of Civil Procedure, 1908, the defendant is obligated to present a written statement of his defence within 30 days from the date of service of summons. Proviso thereto enables the court to extend the period up to ninety days from the date of service of summons for sufficient
reasons.

 

By Adv. R.S. Agrawal

IN THE judgement of the case - ATCOM Technologies Ltd vs Y A Chunawala and Co and Others, delivered on May 7, 2018, Justice A K Sikri and Justice Ashok Bhushan, at the Supreme Court have held that the Bombay High Court was not justified in condoning the inordinate delay in filing the written statement with a cost of Rs 5 lakhs.The appeal in this case was filed challenging the final judgement and order passed by the Bombay High Court on November 21, 2016, whereby the HC dismissed the appeal filed by the appellant against the order of March 15, 2016 passed by the Single Judge in the suit 3813/2000.


The notice of motion filed by the respondents was for condonation of delay in filing the written statement. Delay was of 15 years and 54 days (though according to the appellant delay was of 14 years and 166 days). The Single Judge had condoned the delay. In appeal, the division bench had affirmed the order.The apex court has stated that as is clear, the circumstances which weighed with the HC in condoning the delay was that though the suit was filed in the year 2000, summons were served only in the year 2009. Plea of the appellant that summons were actually served in the year 2000 itself was not accepted.


On this basis, the HC came to the conclusion that since the appellant itself took the time of 9 years after institution of the suit, to serve the summons upon the respondents herein, equities were balanced by allowing the respondents to file the written statement, more so, when no irreparable loss or prejudice was caused to the appellant and no case of mala fides has been made out against the respondents.
Notice in the special leave petition was issued on July 18, 2017, which was duly served upon all the five respondents. However, none of the respondents have entered appearance. Accordingly, the Registry processed the matter for listing before the court and it was listed for hearing on March 26, 2018. On that day also, nobody appeared on behalf of the respondents. Still in order to give one more opportunity, the matter was directed to be listed after 3 weeks. It again came up for hearing on April 20, 2018. Since respondents failed to appear in spite of all these chances given to them, this court was left with no option but to proceed ex-parte against the respondents and heard the matter in their absence.


The court proceeded on the basis that summons in the suit 4870/1999 were served only in the year 2009. In this suit, unconditional leave to defend was granted by the Single Judge of the HC on March 16, 2002. By the same order, all three suits were directed to be tried together. Therefore, Vakalatnama in the suit was also filed and on the dates fixed before the court, respondents were appearing having knowledge about the suit No. 4870/1999 as well.Obviously, this leave to defend was granted after the respondents had put in appearance and filed application for grant of leave to defend. Thus, summons in the suit were served upon the respondents, albeit, in Form 4 of Appendix B, as stipulated in Rule 2 of Order XXXVII of the Code of Civil Procedure, 1908. Maybe, thereafter, Writ of Summons not served again upon the respondents. However, in any case, these summons were served in the year 2009. Therefore, it was incumbent upon the respondents to show as to in what manner they were prevented from filing the written statement.


It has to be borne in mind that as per the provisions of Order VIII Rule 1 of the CPC, 1908, the defendant is obligated to present a written statement of his defence within 30 days from the date of service of summons. Proviso thereto enables the court to extend the period up to ninety days from the date of service of summons for sufficient reasons.This provision has come up for interpretation before the Supreme 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 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.


In such a situation, onus upon the defendant is of a higher degree to plead and satisfactorily demonstrate a valid reason for not filing the written statement within 30 days. When that is a requirement, could it be a ground to condone delay of more than 5 years even when it is calculated from the year 2009, only because of the reason that Writ of Summons not served till 2009?The Supreme Court failed to persuade itself with this kind of reasoning given by the HC in condoning the delay, thereby disregarding the provisions of Order VIII Rule 1 of the CPC, 1908 and the spirit behind it.This reason of the HC that delay was condoned ‘by balancing the rights and equities’ is far-fetched and, in the process, abnormal
delay in filing the written statement was condoned without addressing the relevant factor, namely, whether the respondents had furnished proper and satisfactory explanation for such a delay.


The approach of the HC is clearly erroneous in law and cannot be countenanced. No doubt, provisions of Order VIII Rule 1 of the CPC, 1908 are procedural in nature and, therefore, hand maid of justice. However, that would not mean that the defendant has right to take as much time as he wants in filing the written statement, without giving convincing and cogent reasons for delay and the HC has to condone it mechanically.It is also to be borne in mind that when the matter was listed on January 29, 2015, it was specifically recorded that no written statement was filed and the two suits were adjourned for ex-parte decree. In other suit - 3813/2000, similar notice of motion seeking condonation of delay was rejected though it contained same kind of explanation and that order has been upheld till this court. On this ground also, there was no reason to take a contrary view in this case, when both the suits were taken up together and proceeded with simultaneously.
The Supreme Court allowed the appeals and set aside the impugned order and dismissed the notice of motion for condoning the delay in filing written statement.