Full Text
HIGH COURT OF DELHI
Date of
JUDGMENT
ICAR RESEARCH COMPLEX FOR EASTERN REGION
THROUGH ITS DIRECTOR & ORS. ..... Appellants
Through: Mr. Gagan Mathur, Mr. M. D.
Jangra and Mr. Shitanshu, Advocates
Through: Mr. S. L. Gupta, Advocate
C.M. No. 48910/2022 (Delay of 986 days in filing the appeal)
1. Present application has been filed by the appellants seeking condonation of delay of 986 days in filing the present appeal.
2. For the reasons stated in the present application, the same is allowed and the delay of 986 days in filing the present appeal is condoned.
3. Application stands disposed of. RFA 568/2022 and C.M. No. 48909/2022 (Stay)
4. The appellants (original defendants) in the present appeal are assailing
(i) the impugned judgment and decree dated 31.01.2020 and (ii) order dated 17.12.2019 passed by learned Additional District Judge-04, Patiala House Courts, New Delhi in Suit No. CS 308/2017 titled M/s. Elmech Engineers Vs. Secretary, Department of Agriculture Research & Education & Director General, ICAR & ors.
5. Vide the impugned order, the learned Trial Court was pleased to dismiss the application filed by the appellants herein for condoning the delay in filing the written statement.
6. Vide the impugned judgment, the learned Trial Court was pleased to allow the application filed by the respondent (original plaintiff) under Order VIII Rule 10 of the Code of Civil Procedure, 1908 and dismissed the suit for recovery filed by the respondent.
7. With the consent of the parties, the present appeal is taken up for disposal.
8. It is the case of the respondent that it is in the business of manufacturing and supplying Kirloskar Green DG sets. Respondent submitted its quotation to the appellants and the same was accepted by the appellants for the supply of Kirloskar Green DG sets to ICAR- RCER, Patna. Hence, the appellant No.1 issued supply order dated 14.11.2013 to M/s. Elmech Engineers, Dhanbad.
9. The liability to pay the entry permit duty / state tax of the State of Bihar was of the appellants. The appellants vide communication dated 11.12.2013 informed the respondent that no State Tax was payable to State of Bihar for the Gensets / DG sets. The appellants in support of the same, also supplied a certificate dated 21.12.2013 to the respondent purportedly issued by the Department of Science and Industrial Research, New Delhi. The Genset was dispatched but the same was confiscated by the office of Commissioner (Commercial) State Tax, who issued a challan dated 31.01.2014 for payment of Rs.5,59,892/-. The appellant No.2 (original defendant No.3) issued a letter dated 12.02.2014 to the respondent requesting them to deposit the said penalty as an interim measure so that seized consignments could be released. Based on the assurance of the appellants, the respondent prepared a demand draft dated 07.03.2014 of Rs.5,59,892/- against the challan. The appellants vide their letter dated 13.03.2014 deposited the said demand draft at Commissioner (Commercial) State Tax, Patna, Bihar.
10. It is the case of the respondent that the said amount was to be reimbursed by the appellants.
11. It is further the case of the respondent that he wrote a letter on 09.11.2015 to the appellant asking them to make a payment of Rs.5,59,892/- along with interest but the appellants failed to pay the same. The respondent’s representative visited the appellants’ office several times. However, no money was paid. Finally, a notice dated 20.10.2016 was issued by the respondent to the appellants under Section 80 of the Code of Civil Procedure, 1908. However, the appellants failed to pay the money and hence the respondent filed the present Civil Suit bearing No. 308/2017 titled as M/s. Elmech Engineers Vs. Secretary, Department of Agriculture Research & Education & Director General, ICAR & Ors.
12. The summons of the suit was received by the appellants in the month of April, 2017. The appellants filed written statement on 11.12.2017 along with an application for condonation of delay in filing the written statement. The appellants explained the reasons for delay as under:- “That the copy of the plaint was received in his office and since the defendants had to take the necessary legal opinion from the concerned Department and it has been delayed as the concerned officials were busy in their research work and hence it took time and after taking necessary legal opinion, it was sent to the panel counsel and he appeared before the Hon’ble Court on 18.07.2017 and sought time to file reply and case was adjourned for filing reply on 07.10.2017 and since the relevant acts of Bihar were not available with the Panel counsel and they were sought and studied to give a proper reply in accordance with law and hence if there is any delay in filing the present written statement may please be condoned.”
13. The respondent also filed an application under Order VIII Rule 10 of the Code of Civil Procedure, 1908 for pronouncement of judgment as the appellants failed to file the written statement. The learned Trial Court heard the application for condonation of delay in filing the written statement on 17.12.2019 and vide the impugned judgment dismissed the said application. Relevant portion of the said judgment reads as under:- “I have heard the rival submissions of the parties, perused the record and have looked into the relevant statutory of the Code. The application seeking condonation of delay in filing WS was filed on 11.12.2017. I observe that the grounds are not appealing enough to be entertained. There is nothing to explain as to what prevented the Defendants from moving an application seeking extension of time limit after the stipulated period had expired. I am aware of the settled law laid down by Hon’ble Superior Courts which mention that there is no straight jacket formula which can be uniformly applied in all the cases without reference to the peculiar facts and circumstances of a given case while considering the case of condonation of delay. The decisive factor in considering the condonation is not the length of delay but sufficiency of a satisfactory explanation. I may state that the application does not disclose any reason much less any extenuating circumstances. The conduct of defendants would show that they have taken the matter in a very casual and careless manner and such carelessness and negligence is writ large. The meaning of the word “sufficient” is “adequate” or “enough”, inasmuch as may be necessary to answer the purpose intended. In this context, “sufficient cause” means that the party should not have acted in a negligent manner or there was a want of bona fide on its part in view of the facts and circumstances of a case or it cannot be alleged that the party has “not acted diligently” or “remained inactive”. It is not open to any litigant to fix his own period of limitation for instituting proceedings for which law has prescribed periods of limitation. I find that the application lacks any bona fide reason for condonation of delay. It is not shown as to whether such delay could easily be avoided by the defendants acting with normal care and caution. Thus, there is want of bona fides imputable to the defendants. There is no reason or sufficient cause shown as to what steps were taken by the defendants after service which was effected on 01.12.2017 to file the Written Statement. Having observed so, the application of the defendants seeking condonation of delay in filing the written statement is bereft of merits. The same deserves dismissal. Application stands dismissed.”
14. Subsequently, vide the impugned judgment dated 31.01.2020, the learned Trial Court allowed the respondent’s application under Order VIII Rule 10 of the Code of Civil Procedure, 1908 and decreed the suit filed by the respondent. The relevant portion of the impugned judgment reads as under:-
15. Being aggrieved by the impugned order and judgment, the appellants have filed the present appeal.
16. This Court has examined the contention of the parties.
17. In this case, it is noted that part cause of action arose in Bihar. It is one of the preliminary objections of the respondent that Delhi Courts have no territorial jurisdiction. Since part cause of action arose outside the territory of Delhi office, appellants took some time to get the necessary comments and instructions from the concerned department. Even the written statement is prepared and attested from Patna. It appears that the delay in filing the written statement is under these circumstances.
18. The Hon'ble Apex Court, in the case of Kailash v. Nanhku and others, reported as (2005) 4 SCC 480, considered the provisions of Order VIII Rule 1 of the Code of Civil Procedure, 1908 and held that the provisions are directory in nature and the time may be extended in case sufficient reason is shown. The extension of time sought by the defendant should not be granted in routine manner and it should be by way of an exception and for the reasons assigned by the defendant and also recorded in writing by the Court with its satisfaction. However, no strait-jacket formula can be laid down for it. The relevant paragraphs 42 to 45 are reproduced below:- "42. Ordinarily, the time schedule prescribed by Order VIII, Rule 1 has to be honoured. The defendant should be vigilant. No sooner the writ of summons is served on him he should take steps for drafting his defence and filing the written statement on the appointed date of hearing without waiting for the arrival of the date appointed in the summons for his appearance in the Court. The extension of time sought for by the defendant from the Court whether within 30 days or 90 days, as the case may be, should not be granted just as a matter of routine and merely for asking more so, when the period of 90 days has expired. The extension can be only by way of an exception and for reasons assigned by the defendant and also recorded in writing by the Court to its satisfaction. It must be spelled out that a departure from the time schedule prescribed by Order VIII, Rule 1 of the Code was being allowed to be made because the circumstances were exceptional, occasioned by reasons beyond the control of the defendant and such extension was required in the interest of justice, and grave injustice would be occasioned if the time was not extended.
43. A prayer seeking time beyond 90 days for filing the written statement ought to be made in writing. In its judicial discretion exercised on well-settled parameters, the Court may indeed put the defendants on terms including imposition of compensatory costs and may also insist on an affidavit, medical certificate or other documentary evidence (depending on the facts and circumstances of a given case) being annexed with the application seeking extension of time so as to convince the Court that the prayer was founded on grounds which do exist.
44. The extension of time shall be only by way of exception and for reasons to be recorded in writing, howsoever brief they may be, by the Court. In no case, the defendant shall 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 or his counsel. The Court may impose costs for dual purpose: (i) to deter the defendant from seeking any extension of time just for asking and (ii) to compensate the plaintiff for the delay and inconvenience caused to him.
45. However, no straitjacket formula can be laid down except that the observance of time schedule contemplated by Order VIII Rule 1 shall be the rule and departure therefrom an exception, made for satisfactory reasons only. We hold that Order VIII Rule 1, though couched in mandatory form, is directory being a provision in the domain of processual law."
19. In view of the above, it is clear that the provision made in Order VIII Rule 10 of the Code of Civil Procedure, 1908 is directory in nature. The period may be extended by the Court in case sufficient cause / reason is shown in writing, if on consideration, the Court finds the same sufficient and if the time is not extended, grave injustice would be caused.
20. No doubt there is laxity on part of the appellants in filing the written statement. However, not condoning the delay in filing the written statement would cause irreparable loss and damage to the appellants.
21. This Court is mindful of the inconvenience caused to the respondent. However, the same can be compensated in terms of cost.
22. This Court has also examined the impugned judgment. Even if there is no written statement, the respondent needs to prove his case by leading evidence. This is not a case which can be decreed under Order VIII Rule 10 of the Code of Civil Procedure, 1908. Even after noting the law in this regard, the learned Trial Court proceeded to decree the suit only on the ground that the written statement has not been filed.
23. Hence, in view of the detailed discussion hereinabove, the present appeal is allowed subject to cost of Rs.25,000/-. The impugned order and judgment are hereby set aside. The delay in filing the written statement is condoned and the written statement is directed to be placed on record of the learned Trial Court. The appellants are directed to pay a cost of Rs.25,000/- to the respondent within two weeks.
24. Parties are directed to appear before the learned Trial Court on 05.01.2023.
25. The appeal is allowed in terms of the above directions. All the pending applications are also disposed of.
26. The learned Trial Court shall try to dispose of the present suit expeditiously.
GAURANG KANTH, J DECEMBER 07, 2022