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HIGH COURT OF DELHI
JUDGMENT
SYNC RESORTS AND RETREAT & ANR ..... Petitioner
HON'BLE MR. JUSTICE TUSHAR RAO GEDELA Advocates who appeared in this case:
For the Petitioner : Mr. Jayant Mehta, Sr. Advocate with
Mr. Ashutosh Kumar, Mr. Sajan Shankar Prasad and Ms. Nikita Sethi, Advocates, Advocate
For the Respondent : Mr. Samrat Nigam, Mr. Varun Kumar and Mr. Pawan Aneja, Advocates for
R-1.
Mr. Tushar Sannu, Standing Counsel for MCD with Mr. Priyankar Tiwari and Mr. Devvrat Tiwari, Advocates.
Mr. Anupam Srivastava, ASC (GNCTD) with Mr. Dhairya Gupta and
Mr. Vasuh Misra, Advocates for R-4.
1. The petitioners challenge the order dated 17.01.2022 whereby the learned Trial Court had struck off the defence of the [ The proceeding has been conducted through Hybrid mode ] petitioners/defendants no.1 and 2 and also proceeded ex parte simultaneously. The petitioners also challenge the order dated 28.04.2022 whereby the learned Trial Court refused to take the written statement of the petitioners/defendants on record on the premise of having already proceeded ex parte vide order dated 17.01.2022.
2. Mr. Jayant Mehta, learned senior counsel appearing on behalf of the petitioners/defendants submits that on 27.10.2021, the summons of the suit were served upon the petitioners/defendants. In accordance with such service, the petitioners/defendants appeared on 01.11.2021 before the learned Trial Court. Vide order dated 01.11.2021, the learned Trial Court had directed the petitioners/defendants to file the written statement within the stipulated time with an advance copy to the other side.
3. The matter was next posted to 17.01.2022 whereby the aforesaid impugned order had been passed.
4. Learned senior counsel appearing for the petitioners/defendants submits that the observations made by learned Trial Court vide order dated 17.01.2022, in that, the petitioners had not filed the written statement despite the lapse of 90 days period from the date of service is incorrect observation and contrary to the facts on record.
5. Learned senior counsel submits that even if the time period as stipulated is calculated from 27.10.2021, the 90 days’ period was still not over on the date of passing of the order dated 17.01.2022. On that basis, learned senior counsel submits that the order proceeding ex parte and simultaneously striking off the defence of the petitioners/defendants was not only contrary to the record but also drastic measure undertaken without examining the facts which obtained in the present case.
6. Learned senior counsel also brought attention of this Court to page 186 where the learned Trial Court had passed order dated 28.04.2022 rejecting the written statement sought to be filed by the petitioners/defendants on the basis that the defendants have already been proceeded ex parte.
7. Learned senior counsel submits that the premise of the learned Trial Court that the petitioners/defendants were proceeded ex parte as well as the defence was struck off being the reasons for not taking the written statement on record was itself incorrect inasmuch as the original order dated 17.01.2022 is itself predicated on the observation of incorrect facts.
8. According to learned senior counsel, learned Trial Court had overlooked two crucial and material facts: (i) the fact that on 17.01.2022, 90 days had not lapsed (ii) being ignorant of the judgment of the Hon’ble Supreme Court in Suo Moto WP(C) No. 3/2020 “In Re: Cognizance for Extension of Limitation” as well the judgment in ‘Prakash Corporates vs. Dee Vee Projects Limited’ reported as AIR 2022 SC 946 whereby the Hon’ble Supreme Court had extended the time for filing pleadings, applications, etc.
9. Learned senior counsel submits that in view of the aforesaid facts and the Supreme Court judgment, the impugned order be set aside with a direction that the written statements be taken on record.
10. Per Contra, Mr. Samrat Nigam, learned counsel appearing on behalf of the respondent would submit that the filing of the present petition is itself an indication of the dilatory tactics adopted by the petitioners/defendants to delay the trial inasmuch as the impugned order is dated 17.01.2022 and exactly after a lapse of one year, the petitioners have filed the instant petition.
11. Learned counsel for the respondent also submits that if one were to test the bonafide of the petitioners, the same would miserably fail for the reason that despite the fact that petitioners were served with summons on 27.10.2021, the respondent did not even attempt to file the written statement on record before 28.04.2022. On that basis, learned counsel submits that order of 17.01.2022 proceeding the petitioners ex parte as well as striking off the defence and the order dated 28.04.2022 whereby the learned Trial Court refused to take written statement on record, are perfectly in order and no judicial impropriety or material irregularity have occurred while exercising the jurisdiction vested in it by law.
12. Learned counsel submits that this Court should not indulge and grant any leverage to such party who takes liberties with the timelines as stipulated as also misuse the liberty granted by the Court to complete the filing of pleadings. On that basis, Mr. Nigam says that this petition ought to be dismissed with heavy costs.
13. This Court has considered the rival contentions, documents on record as also the impugned orders.
14. There is no doubt that the petitioners/defendants did not file the written statement within the stipulated time as obtaining from the facts of the record, however, the overriding relevant aspect would be the fact of the Supreme Court having passed the judgments in Re: Cognizance (supra) and Prakash Corporates (supra) which exempted the limitation which deprived the party from filing their pleadings beyond the time stipulated under the Code of Civil Procedure, 1908. To that extent, the non filing of the written statement by the petitioners could not have been made a ground for striking off the defence by the learned Trial Court inasmuch as the said measure is a drastic measure and the petitioners/defendants still had time within which they could have filed the written statement.
15. The filing of the written statement on 28.04.2022 subsequent to the order dated 17.01.2022, would not really come into the rescue of the petitioners/defendants inasmuch as the order dated 17.01.2022 had not only proceeded ex parte but also, the defence was struck off. Therefore, unless the two disentitlements were set aside, the question of filing the written statement subsequently would not have arisen in any case.
16. Apart from the judgment of the Supreme Court rendered above the judgments of the Supreme Court in ‘Kailash vs. Nanhku and Ors’, reported as (2005) 4 SCC 480, ‘Salem Advocate Bar Association, T.N vs. Union of India’, reported as (2005) 6 SCC 344 and ‘Bharat Kalra vs. Raj Kishan Chabra’ reported as 2022 SCC Online SC 613, - have settled the law on condoning the delay in filing written statement.
17. That apart, learned Division Bench of this Court in FA(OS) 149/2022 titled Jamaluddin vs. Nawabuddin & Ors. Neutral Citation Number - 2023/DHC/001211, judgment rendered on 15.02.2023, had taken into consideration the aforesaid judgments of the Hon’ble Supreme Court and permitted the defendant to file the written statement on compensatory costs.
18. Being bound by the aforesaid judgments of the Hon’ble Supreme Court as well as of the learned Division Bench of this Court, this Court deems it fit and appropriate to direct the learned Trial Court to take on record the written statement filed on behalf of the petitioners/defendants on 28.04.2022, subject to compensatory costs of Rs.75,000/- to be paid to the respondent/plaintiff within two weeks from today.
19. The learned Trial Court shall thereafter, proceed in accordance with law.
20. With the aforesaid directions, the petition alongwith pending application stands disposed of.
TUSHAR RAO GEDELA, J. FEBRUARY 21, 2023