Full Text
RFA(OS)(COMM) 11/2017
Date of Decision: 24th January, 2018.
JASBIR SINGH ..... Appellant
Through Mr. Sanjiv Narula, Mr. Rohit Nagpal and
Mr. Jaspreet S. Rai, Advocates.
Through Mr. Ramji Srinivasan, Sr. Advocate with
Mr. Tushar Rao, Mr. Vipin Nair, Mr. Sohil Yadav, Mr. Tushar Bhardwaj and Mr. Naveen Hegde, Advocates.
Mr. Raj Shekhar Rao, Mr. Aditya Sharma and Mr. Chatanya Puri, Advocates.
HON'BLE MR. JUSTICE CHANDER SHEKHAR SANJIV KHANNA, J. (ORAL):
The appellant, defendant in CS(COMM) 1349/2016, has filed the present intra-court appeal impugning order dated 16th May, 2017 passed in IA No.5105/2017 filed by the respondent/plaintiff, under Order VIII Rule 10 of the Code of Civil Procedure, 1908.
2018:DHC:623-DB
JUDGMENT
2. The impugned order allows the application of the respondent/plaintiff and decrees the suit for principal amount of Rs.1,61,26,938/- along with interest @ 18% p.a. from 31st May, 2016 till the institution of the suit and awards post institution interest @ 10% p.a. for first three months w.e.f. 31st May, 2016 and post decretal interest @ 12% p.a. Respondent/Plaintiff is also entitled to costs.
3. The respondent has filed the aforesaid suit for recovery of Rs.1,61,26,936/- being the value of 15 invoices for sale and supply of rice between 2nd April, 2016 to 21st May, 2016.
4. The appellant/defendant was served with the summons in the suit by speed post on 10th November, 2016 and by ordinary process on 19th November, 2016. In terms of the decision of the Division Bench of this Court in Ashok Kumar vs. Purushottam Lal Verma, 2016 SCC OnLine Del 5358, the appellant/defendant is to be treated as served on the date of first service i.e. 10th November, 2016.
5. The first default made by the appellant/defendant was his belated request for furnishing of six missing pages, which he claims were not supplied with summons. This assertion was made on the hearing fixed on 6th December, 2016. The appellant/defendant after being served on 10th November, 2016, should have asked for supply of the said six pages immediately after service.
6. The six pages were supplied to the appellant/defendant on 6th December, 2016 with a direction to file written statement within 30 days.
7. The appellant/defendant did not file written statement within 30 days. This was the second default.
8. The third default made by the appellant/ defendant was on 21st February, 2017, when a wrong and incorrect plea that the paper book had not been furnished, was taken.
9. On 21st February, 2017, appellant/defendant was permitted to file written statement within the statutory period with an application for condonation of delay.
10. The fourth default made by the appellant/defendant was when the written statement filed on 22nd March, 2017, albeit without application for condonation of delay.
11. The written statement was returned under office objection dated 24th April, 2017 for want of application for condonation of delay. Even after return, the appellant/defendant did not re-file the written statement and move an application for condonation of delay. This was the fifth default made by the appellant/defendant.
12. In view of the aforesaid defaults, the respondent/plaintiff filed application IA No.5105/2017 under Order VIII Rule 10 CPC. This application was listed before the Court on 28th April, 2017. In spite of the advance notice, counsel for the appellant/defendant did not enter appearance. This was the sixth default made by the appellant/ defendant.
13. Court notice was issued to the counsel for the appellant/ defendant who then entered appearance but did not file reply to the application under Order VIII Rule 10 CPC in spite of one opportunity. This was the seventh default.
14. The appellant/defendant even then did not realize urgency in the matter and did not take steps to re-file the written statement with application for condonation of delay. This was the eighth default.
15. Counsel for the appellant/defendant still pleads that the written statement may be taken on record, on payment of costs of Rs.2.[5] lakhs which the appellant/defendant is ready to pay. We would have normally dismissed the appeal in the aforesaid circumstances. However, there are two or three factors which have weighed with us to accept the prayer of the appellant/defendant to take the written statement on record, on payment of costs of Rs.2.[5] Lakhs to be paid to the respondent/plaintiff. The period of 120 days would have commenced on 6th December, 2016 and the appellant/defendant had filed the written statement without application for condonation of delay on 22nd March, 2017. There appears to be a default on the part of the counsel for the appellant/ defendant. We would record that the concession shown by us does not mean that the written statement was correctly filed. Written statement was filed without application for condonation of delay, and this was contrary to the provisions of the Commercial Courts, Commercial Divisions and Commercial Appellate Division of High Courts Act, 2015 read with the provisions of the Code. Lastly, there was some delay on the part of the Registry in returning the written statement filed on 22nd March, 2017 which was returned on 24th April, 2017.
16. Counsel for the respondent/plaintiff has left it to the Court to decide and pass appropriate orders.
17. Keeping in view the aforesaid position, we allow the present appeal and direct that the written statement filed by the appellant/defendant would be taken on record, subject to payment of costs of Rs.2.[5] Lakhs to the respondent/plaintiff within a period of three weeks from today. In case costs of Rs.2.[5] Lakhs is not paid within three weeks from today, the appeal would be treated as dismissed. Costs would be paid by cheque, which will be given by hand to the counsel for the respondent/plaintiff.
18. The appeal is disposed of in the aforesaid terms.
19. To cut short delay, parties are directed to appear before the single Judge on 14th March, 2018.
SANJIV KHANNA, J. CHANDER SHEKHAR, J. JANUARY 24, 2018 MR/pk/VKR