Neutral Citation Number 2023/DHC/000152
CS(OS) 613/2021 Page 1 of 11
* IN THE HIGH COURT OF DELHI AT NEW DELHI Reserved on: 21.12.2022
Date of decision:10.01.2023
+ CS(OS) 613/2021
SH. VIKRANT KHANNA & ORS. ..... Plaintiffs Through: Mr.Ashutosh Lohia, Ms.Shraddha Bhargava, Mr.Rohit Saraswat,
Advs.
versus
SMT. AMITA LAMBA & ANR. ..... Defendants Through: Mr.Rajneesh Vats, Adv.
CORAM:
HON'BLE MR. JUSTICE NAVIN CHAWLA I.A. 18120/2022 and O.A 50/2022
1. By the present Chamber Appeal under Rule 5 of Chapter II of the Delhi High Court (Original) Side Rules, 2018 (in short, "the Rules"), the plaintiffs/appellants challenge the orders dated 15.09.2022 and 06.10.2022 passed by the learned Joint Registrar (Judicial) granting further time to the defendants/respondents to file their written statement.
2. The learned counsel for the plaintiffs/appellants, placing reliance on the judgments of this Court in Ram Sarup Lugani & Ors. v. Nirmal Lugani & Ors., 2020 SCC OnLine Del 1353; Shri Gautam Gambir v. Jai Ambay Traders & Ors.,CS(OS) 149/2018; Harjyot Singh v. Manpreet Kaur, 2021 SCC OnLine Del 26; Sameer Chaudhuri v. Dr. Reyhan Chaudhuri, CS(OS) 283/2019 and Rohit Sharma v. A.M. Market Place Pvt Ltd. and Others, 2021 SCC OnLine Del 3092, submits that the time for filing the written statement by the
1
defendants/respondents could not have been extended by the learned Joint Registrar (Judicial) beyond the period of 120 days of the service of the summons of the suit on the defendants/respondents.
3. He submits that this Court issued summons in the suit to the defendants/respondents on 26.11.2021. Along with the suit, the plaintiffs/appellants had filed an application, being I.A.No.15409/2021, seeking exemption from filing the bills, vouchers, receipts, expense sheets etc., and for grant of adequate time for filing of the detailed documents. The said application was also allowed by this Court in its order dated 26.11.2021.
4. The defendants/respondents in answer to the summons, appeared before the learned Joint Registrar (Judicial) on 11.03.2022, when inter- alia, the following order was passed:
"2. Learned counsel for the defendants submits that he shall be filing vakalatnama on behalf of the defendants during the course of the day. It is further submitted by learned counsel for the defendants that the plaintiffs, have moved an application under Order VII Rule 1 CPC seeking exemption from filing certain bills/vouchers etc. which was allowed by the Hon'ble Court however till date those documents have not been placed on record neither copy has been supplied to the defendants.
3. Learned counsel for the plaintiffs submits that needful shall be done within two weeks.
4. Let the needful be done accordingly with advance copy to the defendants after which the defendants may file written statement, reply to the interim application and affidavit of admission/denial within four weeks."
2
5. The learned counsel for the plaintiffs/appellants submits that the plaintiffs/appellants duly filed the requisite documents after supplying the copies thereof to the defendants/respondents on 25.03.2022.
6. As the defendants/respondents did not file their written statement even thereafter, the plaintiffs/appellants filed an application under Order VIII Rule 10 of the Code of Civil Procedure,1908 (hereinafter referred to as the 'CPC') on 19.07.2022. Notice of this application was issued to the defendants/respondents on 26.07.2022. In spite of application having been served, the defendants/respondents did not file their written statement.
7. The suit was then listed before the learned Joint Registrar (Judicial) on 15.09.2022, when the following impugned order was passed:
"I.A 11572/2022 (O-VIII rule 10 CPC)
1. Learned counsel for defendants seeks time of one week for filing reply. Let the same be filed accordingly with advance copy to opposite party who may file rejoinder within one week thereafter.
2. Learned counsel for plaintiff has submitted that bills/vouchers as reflected in order dated 11.03.2022 have been e-filed vide diary no 433600/2022 on 25.03.2022 and he had supplied a copy of the same to learned counsel for defendant through email. He further submits that no objection was received from their end.
3. On the other hand, learned counsel for defendant has submitted that no copy of above said documents was received by him but defendant had received one copy through email and same is soft copy of ledger account. He further submits that no copy of bills/vouchers as referred in order dated 11.03.2022, has been supplied to the defendants.
3
4. He further submitted that no written statement has been filed as copies of the said bills/vouchers have not been received.
5. Learned counsel for plaintiff has been asked whether some more documents are required to be filed in terms of application u/O VII Rule 1 CPC as referred in order dated 11.03.2022 to which he has stated that he will have to take instructions from his client.
6. It is submitted by learned counsel for plaintiff that he will take appropriate steps within two weeks.
7. Let the advance copy of the said documents if any, be supplied to the defendants after which the defendants may file written statement, reply to interim application and affidavit of admission/ denial within 4 weeks.
8. Re-notify the matter for completion of pleadings and further proceedings on 06.10.2022."
8. The learned counsel for the plaintiffs/appellants submits that on 11.03.2022 there was no occasion for the learned Joint Registrar (Judicial) to inquire from the plaintiffs/appellants if any further documents were required to be filed in terms of the application under Order VII Rule 1 of the CPC. He submits that in any case, further time could not have been granted to the defendants/respondents to file their written statement.
9. The learned counsel for the plaintiffs/appellants submits that on 06.10.2022, the following order impugned in the present Chamber Appeal was passed:
"I.A 11572/2022 (O-VIII rule 10 CPC moved by plaintiff)
1. Time has been sought on behalf of the defendants for filing reply to the captioned IA. Ld. Counsel for defendants has submitted that Ld. Counsel for plaintiff has clarified today that no
4
further documents is to be filed on behalf of plaintiff in terms of order dated 11.03.2022.
2. Let reply to the captioned IA be filed by the defendants within three days from today with advance copy to the plaintiff, who may file rejoinder within two weeks thereafter with advance copy to opposite party.
3. Re-notify the captioned IA for completion of pleadings and further proceedings on 03rd November, 2022.
CS (OS) 613/2021
1. Ld. Counsel for plaintiff has submitted that the documents consisting of 569 pages have already been filed on behalf of the plaintiff in terms of order dated 11.03.2022 and the copy of the same has already been supplied to Ld. Counsel for defendant through email on 25.03.2022.
2. On the other hand, Ld. Counsel for defendant has submitted that the said set of documents does not have any bill, invoice or voucher in respect of which exemption was sought by the plaintiff vide order dated 11.03.2022.
3. Upon this, Ld. Counsel for plaintiff has submitted that the order dated 11.03.2022 has been complied with by submitting the aforesaid, documents and the plaintiff does not want to file any further document in terms of order dated
11.03.2022.
4. Ld. Counsel for defendant seeks time for filing written statement. The same has been opposed on behalf of Ld. Counsel for plaintiff.
5. Heard. Perusal of previous order dated 15.09.2022 would reflect that a query was put to Ld. Counsel appearing on behalf of plaintiff as to whether some more documents are required to be filed in terms of application under Order VII Rule 1 of CPC as referred in order dated 11.03 .2022, to which, he had stated that he will have to take instructions from his client. Ld. Counsel for plaintiff appearing today has submitted that no further document is required to be filed in terms of application under Order VII Rule 1 of CPC as referred in order dated 11.03.2022.
6. Today, time has been sought on behalf of the defendant for filing written statement stating that
5
he was not aware as to whether any further document is to be filed on behalf of the plaintiff in terms of application under Order VII Rule 1 of
CPC.
7. Heard. In the present scenario, the defendant may file written statement and affidavit of admission/denial of documents within two weeks with advance copy to the opposite party, who may file replication and affidavit of admission/denial of documents within two weeks thereafter.
8. Let the pleadings be completed as per law.
9. Re-notify the matter for completion of pleadings and further proceedings on 03rd November, 2022."
10. He submits that the learned Joint Registrar (Judicial) acted without jurisdiction in granting further time to the defendants/respondents to file their written statement.
11. He submits that the written statement was eventually filed by the defendants/respondents only on 29.10.2022, albeit without any affidavit of admission/denial of the documents of the plaintiffs/appellants, thereby making it liable not to be taken on record; and eventually in a proper manner, on 24.11.2022, that is, much beyond the statutory period of 120 days as permitted under the Rules.
12. On the other hand, the learned counsel for the defendants/respondents submits that the written statement could be filed by the defendants/respondents only upon receipt of the complete set of documents, including the documents for which the time was sought by the plaintiffs/appellants to file at a later stage. He submits that though certain documents were served on the defendants/respondents on 25.03.2022 by the plaintiffs/appellants, these were not in terms of the permission obtained by the plaintiffs/appellants from this Court inasmuch
6
as they did not contain the bills, vouchers, receipt etc. He submits that even on 15.09.2022, the plaintiffs/appellants sought further time to seek instructions and sought a period of two weeks to take appropriate steps and, therefore, no fault can be found with the learned Joint Registrar (Judicial) granting extension of time to the defendants/respondents to file their written statement.
13. It is only on 06.10.2022, that the learned counsel for the plaintiffs/appellants finally stated that no further documents were to be filed. Therefore, the learned Joint Registrar (Judicial) granted reasonable time to the defendants/respondents to file their written statement. He submits that now the written statement stands filed.
14. I have considered the submissions made by the learned counsels for the parties.
15. As far as the Rules 2 and 4 of Chapter VII of the Rules are concerned, by the judgment dated 09.01.2023 passed in CS(OS) 128/2022 titled Amarendra Dhrari Singh v. R.C. Nursery Private Limited, I have held that the period of 120 days provided under the said provisions for filing of the written statement is directory in nature. I have held that for exceptionally sufficient reason, the Court may extend the time for the defendants/respondents to file the written statement.
16. In the present case, the plaintiffs/appellants had filed an application, being I.A. No.15409/2021, praying for the following reliefs:
"It is therefore most respectfully prayed that in the interests of justice, this Hon'ble Court may kindly be pleased to exempt the
applicants/plaintiffs from filing the detailed bills, vouchers, receipts, expense sheets etc. in relation
7
to the Schedule-1 filed with the plaint and grant adequate time for filing the detailed documents."
17. The said application was allowed by this Court on 26.11.2021. On 11.03.2022, the plaintiffs/appellants sought further time to file these documents. It is for this reason that the learned Joint Registrar (Judicial) granted further time to the defendants/respondents to file their written statement on receipt of such documents. This order is not in challenge before this Court.
18. The plaintiffs/appellants thereafter served certain documents on the defendants/respondents and filed the same before this Court on 25.03.2022. Though the learned counsel for the defendants/respondents submits that these documents were not in terms of the liberty that had been granted by this Court and later by the learned Joint Registrar (Judicial), in my opinion, it is not for the defendants/respondents to dictate what documents the plaintiffs/appellants must file along with the plaint or for which they have been granted an extension of time to file the same. In case the plaintiffs had failed to file the relevant documents, consequences in law would follow. However, the time to file written statement would not stop merely because the defendants are of the opinion that the documents filed are not relevant or not in terms of liberty obtained from the Court. On receipt of the set of the documents, the defendants/respondents should have proceeded to file their written statement within the time granted by the learned Joint Registrar (Judicial).
19. In any case and even if there was any doubt in the mind of the defendants/respondents in this regard, the same should have be dispelled
8
on the advance service of the application filed by the plaintiffs/appellants under Order VIII Rule 10 of the CPC on the defendants/respondents on 19.07.2022. The defendants/respondents chose not to file their written statement even then. Notice of this application was also issued on the defendants/respondents vide order dated 26.07.2022 passed by the learned Joint Registrar (Judicial), and in spite of the same, the defendants/respondents did not file their written statement.
20. On 15.09.2022, on a plea of the defendants/respondents that the plaintiffs/appellants had not filed the documents in terms of the liberty granted earlier, the learned Joint Registrar (Judicial) queried the learned counsel for the plaintiffs/appellants whether the plaintiffs/appellants wish to file those documents. The learned counsel for the plaintiffs/appellants, instead of emphatically stating that no further documents were to filed, prayed for time to seek instructions. In absence of the categorical assertion of the plaintiffs/appellants that no further documents were to be filed, the learned Joint Registrar (Judicial) granted further time to the defendants/respondents to file their written statement.
21. It is only on 06.10.2022 that the plaintiffs/appellants finally made their stand clear that they do not wish to file any further documents. The defendants/respondents thereafter filed their written statement on 29.10.2022, albeit without the affidavit of admission/denial of the documents of the plaintiffs/appellants and, in a proper manner on
24.11.2022.
22. From the above sequences of events, it would be evident that at least from 25.03.2022 till 15.09.2022 there is no justifiable reason with the defendants/respondents for having not filed their written statement.
9
On 15.09.2022, however, the learned counsel for the plaintiffs/appellants sought further time to seek instructions if the plaintiffs/appellants wish to file further documents in terms of the liberty granted. Had the learned counsel for the plaintiffs/appellants been assertive that no further documents were to be filed by the plaintiffs/appellants, things would have been different. By this indecisiveness, the plaintiffs/appellants themselves gave a reason to the defendants/respondents for grant of further time to them to file their written statement.
23. Even thereafter, the plaintiffs/appellants did not challenge the order of the learned Joint Registrar (Judicial) dated 15.09.2022 nor, till 06.10.2022, informed the defendants/respondents that they did not wish to file further documents. It is only on 06.10.2022 that the learned counsel for the plaintiffs/appellants finally informed the learned Joint Registrar (Judicial) that the plaintiffs/appellants did not wish to file any further documents in terms of the liberty granted to them. The learned Joint Registrar (Judicial), therefore granted further time to the defendants/respondents to file their written statement. In my opinion, therefore, the plaintiffs/appellants have also contributed to the defendants/respondents not filing their written statement within time.
24. In any case, as the written statement now stands filed, the interest of justice would demand that the same be considered by this Court and the defendants/respondents should not be condemned without giving them the opportunity of putting their defence. However, the defendants/respondents deserve to be levied with exemplary costs for the delay in filing the written statement. Accordingly, the defendants/respondents shall pay costs of Rs.1 Lakh (Rupees One Lakh
10
Only) to the plaintiffs/appellants within a period of two weeks of this order, failing which their written statement shall not be taken on record.
25. Accordingly, while condoning the delay in filing the present Chamber Appeal, the same is disposed of on merits in the above terms.
NAVIN CHAWLA, J.
JANUARY 10, 2023/Arya/DJ
11