Joana Rose Philomina Miranda & Ors. v. Western Pre Fab Pvt. Ltd.

1. This Interim Application, which was earlier filed as a Notice of Motion, has been filed on behalf of the Defendant seeking to set aside the order dated 11th August 2010 passed by the Prothonotary and Senior Master directing that the plaint of S.C.Suit No.4768 of 2007 avk 1/20 (now renumbered as Suit No.895 of 2007) to proceed without written statement of the Defendant and to condone the delay of approximately seven years which has been caused in filing the written statement of the Defendant and that the Defendant be permitted to file its written statement dated 17th July 2014.

2. Mr.Aspi Chinoy, learned Senior Counsel for the Defendant, would submit that the Plaintiffs had earlier on 24th July 2006 filed Suit no.4768 of 2007 (renumbered as Suit No.895 of 2007) before this Court inter alia seeking declaration that the Conveyance Deed dated 16th June 1994 was void and not binding upon the Plaintiffs. That the Plaintiffs had not filed any Notice of Motion for interim relief at the time of filing of the Suit. That on 15th May 2010 there was a change in the directors of the Defendant-company whereby the old directors resigned and the new directors (Bilakhiya family) took over the functioning of the company. That on 11th August 2010 the Prothonotary and Senior Master passed order dated 11th August 2010 directing the Suit to proceed without written statement.

3. In 2012, in view of the enhancement of the pecuniary jurisdiction of the City Civil Court, Bombay, the Suit came to be transferred from avk 2/20 this Court to the Bombay City Civil Court. On 4th December 2012, 23rd July 2013 and 31st July 2013 the Suit came to be listed before the Bombay City Civil Court, however, none of the parties appeared on these three occasions. That on 3rd August 2013 the Plaintiffs and/or their Advocates remained absent and the Suit came to be dismissed for non-prosecution. On 27th September 2013, the Plaintiffs filed Miscellaneous Application No.69 of 2013 for setting aside the order of dismissal for default and for restoration of the Suit. On 8th April 2014 the Suit was restored by the Bombay City Civil Court.

4. Mr.Chinoy, learned Senior Counsel, would submit that on 24th July 2014 soon after acquiring the knowledge belatedly about the no written statement order, the Defendant filed this Notice of Motion for setting aside the no written statement order.

5. On 24th July 2014 itself Notice of Motion No.2642 of 2014 came to be filed by the Defendant inter alia seeking dismissal of the Suit on the ground of pecuniary jurisdiction as the value of the Suit property was more than Rs.[1] crore and that the Suit could not be maintained before the Bombay City Civil Court. On 13th April 2015, the said Notice of Motion No.2642 of 2014 was allowed and accordingly the Suit along avk 3/20 with the Notice of Motion (being renumbered as this Interim Application No.1508 of 2023) came to be re-transferred to this Court. Learned Senior Counsel would submit that on 3rd August 2016 i.e. ten years after the filing of the Suit, the Plaintiffs filed Notice of Motion No.2200 of 2016 seeking interim reliefs against the Defendant restraining the Defendant from creating third party rights and it is only in December 2022, which is six years later, the said Notice of Motion No.2200 of 2016 was circulated by the Plaintiffs for hearing and on 13th September 2023 the same came to be disposed of as being infructuous.

6. Learned Senior Counsel would submit that in view of the decision of the Hon'ble Supreme Court in the case of Bharat Kalra vs. where the Hon'ble Supreme Court has clearly held that if the Suit is not governed by the Commercial Courts Act, 2015, the time limit for filing the written statement under Order VIII Rule 1 of the Code of Civil Procedure, 1908 (CPC) is not mandatory in view of the judgment of the Hon'ble Supreme Court in the case of Kailash vs. Nankhu[2]. Learned Senior Counsel would submit that it has been held in the said judgment that in view of the decision in the case of Kailash vs. Nankhu (supra) if the delay in filing the written statement could avk 4/20 very well be compensated with costs, denying benefit of filing written statement would be unreasonable. Learned Senior Counsel would submit that in the facts of this case although there has been a delay of seven years, the said delay has been occasioned firstly as the directors of the Defendant were completely unaware of the fact that written statement was required to be filed and that the earlier Advocates appearing on their behalf had never intimated the requirement of filing the written statement. That the directors were completely unaware of the passing of the no written statement order dated 11th August 2010 by the learned Prothonotary and Senior Master. That the delay is neither deliberate nor intentional.

7. Learned Senior Counsel would submit that in fact the delay ought to be considered in the context of the manner in which the Suit proceeded; that firstly the Plaintiffs did not move the Suit after filing the same in the year 2006; that no application for interim relief was filed until 3rd August 2016 and which even after filing was not circulated until December 2022; that on three dates as highlighted in the facts above, none of the parties appeared and on 3rd August 2013 since neither the Plaintiffs nor their Advocates remained present, the Suit came to be dismissed on account of non-prosecution. That the Suit avk 5/20 came to be restored on 8th April 2014 and this application was made on 24th July 2014 i.e. soon after the Suit came to be restored and practically speaking there has been hardly any delay; even otherwise no prejudice has been caused to the Plaintiffs. Learned Senior Counsel would submit that even when the Suit was dismissed for nonprosecution and the same was restored by the Bombay City Civil Court, on the ground that no serious prejudice would be caused to the Defendant if the order of dismissal of the Suit dated 3rd August 2013 was set aside. And that the same was set aside and the Suit was restored by imposing costs to be paid by the Plaintiffs to the Defendant. Learned Senior Counsel would submit that, therefore, this Court may follow the same course of action and set aside the no written statement order subject to costs.

8. On the other hand, Mr.S.U.Kamdar, learned Senior Counsel appearing for the Plaintiffs vehemently opposes the application and submits that the learned Senior Counsel for the Defendant has failed to correctly point out the facts leading up to the passing of the no written statement order dated 11th August 2010. Learned Senior Counsel would submit that there were atleast six dates prior to 11th August 2010 on which the Defendant was given opportunity and time to file written avk 6/20 statement and it failed to do so and therefore the said order came to be passed. Learned Senior Counsel would submit that the Defendant was negligent in attending to the matter and therefore the no written statement order came to be passed. Learned Senior Counsel seeks to take this Court through the various orders granting time to the Defendant for filing the written statement prior to the order directing the Suit to proceed without written statement. Learned Senior Counsel submits that the Defendant cannot be heard to say that just because the Plaintiffs’ Suit was dismissed for want of prosecution and restored, that the Defendant be permitted to file the written statement after seven years by setting aside the No Written Statement order. That cannot be a criteria for condoning the delay of seven years in filing written statement. Mr.Kamdar, learned Senior Counsel, draws the attention of this Court to the decision in the case of Parasmal Daulatram Jain vs. and submits that even though the Hon’ble Supreme Court in the case of Kailash vs. Nankhu (supra) has construed Rule 1 of Order VIII to be directory and not mandatory, however, this Court has considered the decision of the Hon’ble Supreme Court and held that the Hon’ble Supreme Court in terms observed that ordinarily the time schedule prescribed by Order VIII Rule 1 has to be 3 (2020) 1 Bom CR 435 avk 7/20 honoured. The extension of time is to be only by way of an exception and for reasons to be recorded in writing. That in no case the Defendant can be permitted to seek extension of time when the Court is satisfied that it is a case of laxity or gross negligence on the part of the Defendant although the Hon’ble Supreme Court did conclude that no straight jacket formula can be laid down except that the observance of the time schedule contemplated under Order VIII Rule 1 shall be the rule and departure therefrom an exception, made for satisfactory reasons only.

9. Learned Senior Counsel for the Plaintiffs would submit that as can be seen from the Interim Application, admittedly, the Defendant was given time to file written statement on several occasions and had even changed four Advocates and therefore they cannot be heard to be stating that the directors were completely unaware of the fact that written statement was to be filed. That the Advocates did not intimate to them of the passing of the order dated 11th August 2010 of the Prothonotary and Senior Master is also baseless as no correspondence or communication with the Advocates has been brought on record to demonstrate the same. avk 8/20

10. Learned Senior Counsel also relies upon the decision of the Hon'ble Supreme Court in the case of Atcom Technologies Limited vs. Y.A.Chunawala and Company and Others[4] and in particular to paragraphs 19 to 22 to submit that the onus upon the Defendant is of a higher degree to plead and satisfactorily demonstrate a valid reason for not filing the written statement in time. Learned Senior Counsel would submit that in that case the Hon'ble Supreme Court set aside the order of the High Court where the delay was condoned “by balancing the rights and equities” holding that the said reason for condoning the delay was far-fetched and in the process abnormal delay in filing the written statement was condoned without addressing the relevant factor viz. whether the Respondents had furnished proper and satisfactory explanation for such delay. Learned Senior Counsel would submit that in the facts of this case, condonation of delay would fall within the same reasoning and it would be erroneous to condone the delay for the reasons set out in the application as the same are completely unsubstantiated. That the High Court ought not to condone this delay as no convincing and cogent reasons have been given by the Defendant. 4 (2018) 6 Supreme Court Cases 639 avk 9/20

11. Distinguishing the decision of the Hon'ble Supreme Court in the case of Bharat Kalra vs. Raj Kishan Chabra (supra), learned Senior Counsel would submit that the said decision does not take into consideration the earlier judgments of the Hon'ble Supreme Court and is not applicable in the context of the facts in the present case.

12. I have heard the learned Senior Counsel and also given my thoughtful consideration to the rival contentions.

13. There can be no doubt as settled in the decisions cited on behalf of the Plaintiffs as above that Order VIII Rule 1 of the CPC clearly prescribes the law that the time schedule to file written statement has to be honoured: observance of the time schedule as contemplated in the said order is the rule and departure therefrom an exception to be made for satisfactory reasons only albeit the Hon'ble Supreme Court in the case of Kailash vs. Nankhu (supra) has construed the said provision as directory and not mandatory. That in exceptional situations the Court may extend the time for filing the written statement though the period of thirty days and ninety days referred to in the provision has expired. However, as held by the Hon'ble Supreme Court, the same is not to be misunderstood as nullifying the entire force and impact – the avk 10/20 entire life and vigour of the provision. That the delaying tactics adopted by the Defendants in law Courts are now proverbial as they do stand to gain by delay and when such is the case, no indulgence ought to be shown to them.

14. Let us now come to the facts of this case. There is no doubt that the Defendant admittedly, had been granted opportunities and time to file written statement on 18th January 2010, 6th March 2010, 15th April 2010, 14th June 2010 and lastly on 11th August 2010 and as the same was not complied, the learned Prothonotary and Senior Master passed the impugned order dated 11th August 2010 directing the Suit to proceed without written statement. It has been submitted that the directors of the Defendant were completely unaware of the fact that written statement was required to be filed and that the earlier Advocates appearing on behalf of the Defendant never intimated the requirement of filing written statement in the Suit to the directors of the Defendant. That even the passing of the order dated 11th August 2010 was not intimated to the Defendant. The Plaintiffs have denied these submissions as being unsubstantiated. However, no contrary evidence to the submissions made on behalf of the Defendant has been filed or brought to my notice. I do not find that there has been any avk 11/20 deliberate or intentional laxity or negligence on the part of the Defendant. An omission on the part of Counsel ought not to prejudice the case of a litigant. In my view, this is an exceptional case where it does not appear that the Defendant is adopting delaying tactics or that it stands to gain by the delay. A fair trial cannot be denied to the Defendant as that would be unreasonable, the Defendant purportedly having acquired rights in the Conveyance Deed dated 16th June 1994 which is sought to be declared void and not binding upon the Plaintiffs by way of the Suit. No doubt, in an ordinary situation, the conduct of the Plaintiff in prosecuting a Suit may not have a bearing on the timelines to be followed by the Defendant in filing the written statement, however, it cannot be ignored that the purpose of filing a written statement is to give a fair opportunity to the Defendant to meet the case of the Plaintiff. In an adversarial system the Plaintiff files the plaint and the Defendant files the written statement putting up his defence so that the issues can be adjudicated. If the Plaintiff is not serious about prosecuting his claim, as can be seen in the facts of this case, the Defendant cannot be deprived of the opportunity on the ground that even if the Plaintiff is not serious, the Defendant ought to follow the timelines. It is not in dispute that on 4th December 2012, 23rd July 2013, 31st July 2013 although the Suit was listed before the avk 12/20 Bombay City Civil Court, none of the parties appeared. Thereafter, on 3rd August 2013, as the Plaintiffs and their Advocates remained absent, the Suit was dismissed for non-prosecution. The Plaintiffs thereafter filed Miscellaneous Application for restoring the Suit on 27th September 2013, which then came to be restored on 8th April 2014. After learning of the no written statement order, on 24th July 2014, this Notice of Motion came to be filed for setting aside the no written statement order. Between 8th April 2014 and 24th July 2014, about four months had elapsed when this Notice of Motion came to be filed although there is no doubt that the Suit had originally been filed on 24th July 2006 and the delay would be counted from the date of receipt of the summons in the matter, which has been estimated to be about seven years. The no written statement order is dated 11th August 2010 and the application for setting aside the said order is dated 24th July 2014. There was hardly any time gap between 8th April 2014, when the Suit was restored and 24th July 2014 when the application for setting aside the no written statement order was filed that would cause any serious prejudice to the case of the Plaintiffs.

17. I am therefore inclined to agree with Mr.Chinoy, learned Senior Counsel for the Defendant, that the context of the delay caused in filing avk 13/20 the written statement needs to keep in mind the manner in which the Suit has proceeded. In my view, no serious prejudice has been caused to the case of the Plaintiffs.