Friday 23 August 2024

Bombay HC: No Provision Under CPC To Extend Time For Filing Written Statement Due To Pendency Of Miscellaneous Application

The CPC nowhere provides that on filing a Miscellaneous Application, the time to file the written statement would be extended or excluded. Similarly, the Defendant claimed in the Application for condonation of delay that the period during which the Application under Order VII Rule 11 was pending, is entitled to be excluded and thus, the delay according to the Petitioner/ Defendant was calculated as only 14 days. Such calculation is completely on wrong advise or presumption. The written statement was filed after a period of 160 days along with the Application for delay wherein there are no sufficient reasons disclosed to exercise the discretion of the Court by condoning the delay. {para 15}

IN THE HIGH COURT OF BOMBAY AT GOA

WRIT PETITION NO. 105 OF 2024

Federal Brands Ltd.,  Vs Cosmos Premises Pvt. Ltd., 

CORAM: BHARAT P. DESHPANDE, J.

DATED: 2nd AUGUST 2024


1. Heard Mr. Joshi for the Petitioner and Ms. Viegas for the

Respondent.


2. Rule. Rule made returnable forthwith.

3. Heard finally with consent of parties.

4. The challenge in the present Petition is to the order passed

by the learned Trial Court dated 11.12.2023, thereby rejecting the

Application for condonation of delay in filing the written

statement.

5. Mr. Joshi appearing for the Petitioner would submit that the

Petitioner is the Defendant who received a summons from the

Trial Court in a suit filed by the Respondent/Plaintiff on

18.08.2022. The Defendant appeared before the Trial Court and

sought an extension of time to file a written statement, which was

granted. He submits that thereafter, the Petitioner filed an

Application under Order VII Rule 11 of CPC on 05.11.2022. Such

Application was heard and decided by the Trial Court on

09.02.2023. Upon rejection of such Application, the Petitioner

filed an Application for condonation of delay on 03.03.2023

together with a written statement to be taken on record. An

additional affidavit in support of the Application for condonation

of delay was filed on 27.06.2023. Vide impugned order dated

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11.12.2023, the learned Trial Court rejected the delay Application,

which is challenged in the present Petition.

6. Mr. Joshi appearing for the Petitioner would submit that the

provisions of Order VIII Rule 1 of CPC are directory and not

mandatory and therefore, the time limit mentioned therein could

be condoned. In this respect, he placed reliance on the decision of

the Apex Court in the case of Raj Process Equipments and

Systems Pvt. Ltd. & Others Vs. Honest Derivatives Pvt.

Ltd., 2022 SCC OnLine SC 1877, apart from the judgments

referred to and considered by the Trial Court in the impugned

order.

7. Mr. Joshi would submit that the Petitioner/Defendant has a

strong case in his defence and if opportunity is denied for filing

the written statement, serious prejudice would be caused. He

submits that the Petitioner is ready to deposit costs for

condonation of delay and no prejudice will be caused to the

Plaintiff/Respondent.

8. The learned Counsel for the Respondent while justifying the

orders passed by the Trial Court would submit that the

observations in the impugned order clearly go to show that the

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reasons for condonation of delay are not at all justifiable and that

such delay was deliberate.

9. It is clear from the chronology of dates which have been

pointed out by Mr. Joshi that summons were served on Defendant

on 18.08.2022 whereas the period of 30 days to file a written

statement expired on 17.09.2022. The Petitioner/Defendant also

applied for an extension of time to file the written statement which

was initially granted. However, instead of filing the written

statement, though time was extended, an Application under Order

VII Rule 11 of CPC for rejection of the plaint was filed. It is

necessary to note here that along with such an Application for

rejection of the plaint, the Petitioner/Defendant could have easily

filed the written statement. However, the reasons disclosed in the

Application for condonation of delay show that the in-house

Advocate advised the Petitioner/Defendant that once an

Application under Order VII Rule 11 of CPC is filed, there is no

need to file a written statement till such Application is decided.

The Petitioner was also advised that there would not be any need

to file any written statement since the plaint would be rejected.

This is the only reason which is disclosed in the Application for

condonation of delay in filing the written statement.

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10. The calculations shown for delay in the Application for

condonation of delay in filing the written statement are also not

correct. The reasons disclosed in paragraphs 2 to 6 of the delay

Application read thus:

“2. The Defendant filed Application for

Rejection of Plaint on 03/11/2022. The

same has been rejected by this Hon’ble

Court by an Order dated 9th February,

2023. The Defendant would consider

challenging the said Order before the

appropriate Court of law.

3. In the meantime, the Defendant wishes to

file the Written Statement in defence of the

suit.

4. In view of Order VII Rule 11 Application,

the Defendant is entitled for the exclusion

of the period from 03/11/2022 (the date

the Application under Order VII Rule 11

was filed) to 09/02/2023 (the date

wherein the said Application was

rejected).

5. In case, the Application under Order VII

Rule 11 was allowed by this Hon’ble Court,

the Defendant was not required to file any

Written Statement. The necessity to file the

Written Statement has arisen only as the

Application has been rejected by this

Hon’ble Court.

6. As the Defendant has served on

18/08/2022, it was entitled to file the

Written Statement within 90 days, I.e. on

or before 16/11/2022. Considering the

exclusion of 110 Days (pendency of

Application under Order VII Rule 11),

there is still delay of 14 days in filing the

Written Statement.”

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18 WP 105 OF 2024.ODT

11. The reasons disclosed in the above Application for

condonation of delay would clearly go to show that the Defendant

claimed that once an Application is filed under Order VII Rule 11

of CPC, the period for filing the written statement stands excluded,

till the Application is decided.

12. There is no such provision in the CPC or any

pronouncement of the Court for the purpose of exclusion of such

period for filing the written statement. The provisions of Order

VIII Rule 1 of CPC would show that the written statement is

required to be filed within a period of 30 days, which is from the

date of receipt of the suit summons. The proviso added by the

amendment Act would go to show that the said period could be

extended upto 90 days from the receipt of the summons for

reasons to be recorded in writing. Thus, it is clear that the written

statement is required to be filed within 30 days from the date of

receipt of the suit summons, however, such period of 30 days

could be extended upto 90 days for the reasons to be recorded in

writing by the Court.

13. In the present matter, admittedly, the written statement was

not filed within 30 days. Only an Application was filed for

extending the said period which was allowed. On the next date, no

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18 WP 105 OF 2024.ODT

written statement was presented to the Court. No Application for

further extension of time to file the written statement was filed

before the Court. Thus, there was no reason for the Court to

extend such time to be recorded in writing.

14. It is no doubt true that the provisions of Order VII Rule 1 of

CPC are not mandatory but directory, however, such discretion is

required to be exercised by the Court on disclosing sufficient

reasons for an extension of time.

15. The CPC nowhere provides that on filing a Miscellaneous

Application, the time to file the written statement would be

extended or excluded. Similarly, the Defendant claimed in the

Application for condonation of delay that the period during which the Application under Order VII Rule 11 was pending, is entitled to be excluded and thus, the delay according to the Petitioner/ Defendant was calculated as only 14 days. Such calculation is completely on wrong advise or presumption. The written statement was filed after a period of 160 days along with the Application for delay wherein there are no sufficient reasons disclosed to exercise the discretion of the Court by condoning the

delay. In the case of Raj Process Equipments and Systems

Pvt. Ltd. (supra), the Apex Court has observed that the

provisions of Order VIII Rule 1 of CPC are directory and not

mandatory, however, there is no discussion with regard to the fact

as to whether there were any sufficient reasons disclosed to

condone the delay in filing the written statement.

16. In the present Petition, this Court while exercising

supervisory jurisdiction under Article 227 of the Constitution is

required first of all to ascertain whether the impugned order

suffers from any illegality or otherwise. If such an aspect is not

examined, this Court will not be in a position to upset the

reasoned order only on the ground that the Petitioner/Defendant

will lose his opportunity to file a written statement and is entitled

to pay costs. Ignorance of law or wrong advise is not sufficient

ground, when no affidavit of in-house Advocate is placed on

record to justify such reason. Blaming an Advocate is not proper

when such Advocate is having no opportunity to defend or to

explain.

17. The impugned order dated 11.12.2023 is well-reasoned

order after taking into consideration the relevant decisions with

regard to Order VIII Rule 1 of CPC. The learned Trial Court has

specifically observed that the grounds mentioned for condonation

of delay are not at all sufficient enough to use the discretionary

power. No fault would be attributed to such findings. Accordingly,

there is no substance in the present Petition and no reason to

disturb the findings of the learned Trial Court.

18. The Petition stands dismissed. No costs. Rule stands

discharged.

BHARAT P. DESHPANDE, J.

Dated: 2nd August 2024.

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