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$-8 HIGH COURT OF DELHI
RFA(OS) 69/2013
PUNIT TYAGI Appellant
Through: Ms.Monika Manocha andMr.Amandeep Mehra, Advocates
RFA(OS) 69/2013
PUNIT TYAGI Appellant
Through: Ms.Monika Manocha andMr.Amandeep Mehra, Advocates
VERSUS
M/S MILAN DAIRY FOOD PVT LTD Respondent
Through: Mr.Naresh Gupta andMr.Ashish Sharma, Advocates
Through: Mr.Naresh Gupta andMr.Ashish Sharma, Advocates
CORAM:
HON'BLE MR. JUSTICE S. RAVINDRA BHAT
HON'BLE MR. JUSTICE NAJMIWAZIRI
11.12.2013 We have heard Mr. Ashish Sharma, counsel for the respondent.
He states thatpower of attorney hasbeenfiled today.
With the consent of the counsel for the parties, the appeal is heard finally.
This is a defendant's appeal, challenging an order dated 2^^
April, 2013 ofthe learned Single Judge striking off the defence and directing a decree in terms of Order VIII Rule 10 CPC. The suit claim was of Rs.23,06,987/- towards principal amount and a sum of
Rs.4,84,467/- on account ofinterest, due from the appellant/defendant
2013:DHC:8586-DB as the price ofmilk products sold to it. The plaintiffhad relied upon documentary material such as statement ofaccount and other related evidence.
It is urged on behalf of the plaintiff'respondent that the impugned order is not sustainable because apart from mentioning that no written statement had been filed, the learned Single Judge did not discuss the tenability of the suit claim and the supporting averments and documents. It was emphasised that even if the defence of the opposite party is directed to be struck off, the Court is not obliged to direct the drawing up of a decree having regard to the discretionary nature ofthepower under Order VIII Rule 10 CPC.
The learned counsel for the plaintiff/respondent urged on the other hand that the impugned order does not disclose any error and that the appeal is devoid of merit. It was submitted that despite repeated opportunities, the defendant/appellant did not file any written statement and accordingly, the learned Single Judge acted within his jurisdiction in directing a decree under Order VIII Rule 10
CPC to be drawn up.
In the present case, concededly defendant/appellant did not file the written statement within the time granted or even the extended time permitted underthe CPC. In these circumstances, the learned
Single Judgeactedwithin thejurisdiction in invoking the powerunder
Order VIII Rule 10 CPC.
However, having regard to the discretionary nature of the remedy of the power, this Court is of the opinion that the learned
Single Judge should have discussed the merits of the plaintiffs claim in order to satisfy himselfwhether it was tenable and a decree could follow lawfully with the averments and supporting materials; such discussion is lacking. Furthermore, at the stage when notice was issued, the Court had directed original documents to be filed, since the plaintiff /respondent had produced only photocopies of the documents. Furthermore, the defendant's/appellant's contention was that the plaintiff had not verified the suit and the documents filed along with it. All these aspects could have been considered by the learned Single Judge and discussed in the course ofthe
HON'BLE MR. JUSTICE NAJMIWAZIRI
11.12.2013 We have heard Mr. Ashish Sharma, counsel for the respondent.
He states thatpower of attorney hasbeenfiled today.
With the consent of the counsel for the parties, the appeal is heard finally.
This is a defendant's appeal, challenging an order dated 2^^
April, 2013 ofthe learned Single Judge striking off the defence and directing a decree in terms of Order VIII Rule 10 CPC. The suit claim was of Rs.23,06,987/- towards principal amount and a sum of
Rs.4,84,467/- on account ofinterest, due from the appellant/defendant
2013:DHC:8586-DB as the price ofmilk products sold to it. The plaintiffhad relied upon documentary material such as statement ofaccount and other related evidence.
It is urged on behalf of the plaintiff'respondent that the impugned order is not sustainable because apart from mentioning that no written statement had been filed, the learned Single Judge did not discuss the tenability of the suit claim and the supporting averments and documents. It was emphasised that even if the defence of the opposite party is directed to be struck off, the Court is not obliged to direct the drawing up of a decree having regard to the discretionary nature ofthepower under Order VIII Rule 10 CPC.
The learned counsel for the plaintiff/respondent urged on the other hand that the impugned order does not disclose any error and that the appeal is devoid of merit. It was submitted that despite repeated opportunities, the defendant/appellant did not file any written statement and accordingly, the learned Single Judge acted within his jurisdiction in directing a decree under Order VIII Rule 10
CPC to be drawn up.
In the present case, concededly defendant/appellant did not file the written statement within the time granted or even the extended time permitted underthe CPC. In these circumstances, the learned
Single Judgeactedwithin thejurisdiction in invoking the powerunder
Order VIII Rule 10 CPC.
However, having regard to the discretionary nature of the remedy of the power, this Court is of the opinion that the learned
Single Judge should have discussed the merits of the plaintiffs claim in order to satisfy himselfwhether it was tenable and a decree could follow lawfully with the averments and supporting materials; such discussion is lacking. Furthermore, at the stage when notice was issued, the Court had directed original documents to be filed, since the plaintiff /respondent had produced only photocopies of the documents. Furthermore, the defendant's/appellant's contention was that the plaintiff had not verified the suit and the documents filed along with it. All these aspects could have been considered by the learned Single Judge and discussed in the course ofthe
ORDER
.
During the course of submissions, the learned counsel for the respondent had submitted that if this Court was to remit the matter to the learned Single Judge, the appellant may be permitted to file the written statement providing certain terms are imposed.
In view of the above discussion, the impugned judgment is hereby set aside, the defendant/appellant shall file the written statement within two weeks, subject to payment of Rs.30,000/- as costs to the plaintiff'respondent.
The parties are directed to be present before the learned Single
Judge on 22"^^ January, 2014 for further directions.
The appeal is allowed but in the above terms.
DECEMBER 11,2013 RN S. RAVINDRA BHAT, J NAJmWAZIRI, J
During the course of submissions, the learned counsel for the respondent had submitted that if this Court was to remit the matter to the learned Single Judge, the appellant may be permitted to file the written statement providing certain terms are imposed.
In view of the above discussion, the impugned judgment is hereby set aside, the defendant/appellant shall file the written statement within two weeks, subject to payment of Rs.30,000/- as costs to the plaintiff'respondent.
The parties are directed to be present before the learned Single
Judge on 22"^^ January, 2014 for further directions.
The appeal is allowed but in the above terms.
DECEMBER 11,2013 RN S. RAVINDRA BHAT, J NAJmWAZIRI, J