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IN THE HIGH COURT OF DELHI AT NEW DELHI
SUBJECT : CODE OF CIVIL PROCEDURE
CM(M) 729/2012 with CM 10873/2012 & 10874/2012
D...
the process, the filing of WS got delayed. It was averred that the same was
not intentional or deliberate. The said applic...
counsel appeared before the Court of ADJ on 6th October 2010. On 6th
October 2010 the matter was adjourned for 01.12.2010 ...
M.L. MEHTA, J.
JULY 02 , 2012
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Omaxe reviews - omaxe ltd. vs. roma international pvt. ltd.

  1. 1. IN THE HIGH COURT OF DELHI AT NEW DELHI SUBJECT : CODE OF CIVIL PROCEDURE CM(M) 729/2012 with CM 10873/2012 & 10874/2012 Date of Decision: 02.07.2012 M/S. OMAXE LTD. & ORS. …… Petitioners Through: Mr. Mukti Bodh, Advocate. Versus M/S. ROMA INTERNATIONAL PVT. LTD. …… Respondent Through: None. CORAM: HON’BLE MR. JUSTICE M.L. MEHTA M.L. MEHTA, J. (Oral) 1. This petition under Article 227 of the Constitution assails order dated 06.07.2011 of the learned Additional District Judge whereby an application for condonation of delay in filing Written Statement by the petitioners was dismissed. It also assails order dated 30.03.2012 whereby review application of order dated 06.07.2011 was dismissed by the learned ADJ. 2. The respondent filed a suit for recovery against all the three petitioners. As per record, notices were sent to the petitioners by Speed Post on 13th August, 2010. The AD card bore the stamp of 17th August, 2010 of the Post Office. This testified that the petitioners were served on 17th August, 2010. On 1st November 2010 the petitioners appeared, but the WS was not filed. Thereafter the matter was adjourned on few dates and it was only on 4th February, 2011 that the petitioners filed an application under section 5 of Limitation Act r/w section 148 and 151 of CPC seeking condonation of delay in filing the written statement. The delay was sought to be condoned mainly on the ground that the petitioners were involved in construction of various sites and the documents pertaining to this case were not traceable and could only be traced after much efforts. It was also averred that it took some time to requisition the relevant documents and on receipt thereof the same were sent to their counsel for preparing WS and in
  2. 2. the process, the filing of WS got delayed. It was averred that the same was not intentional or deliberate. The said application was dismissed vide the impugned order dated 6th July 2012 by the learned ADJ. The review against the said order was also dismissed by the learned ADJ vide his order dated 30.03.2012. The petitioners assail both these orders in the present petition. 3. I have heard learned counsel for the petitioners and perused the record. 4. The submissions which have been made in the present petition are similar to what were made before the learned ADJ in support of application seeking condonation of delay as also review petition. The sum and substance of the submission was that the documents relating to the case in question could not be located for considerable time and after these were traced, they were given to their counsel who took some time to prepare the WS. 5. The learned Counsel submitted that the delay in filing the WS was not intentional and that the same may be condoned in the interest of justice as no prejudice was to be caused to the respondent. 6. After the amendment of Order 8 Rule 1 CPC, an obligation is casted on the defendant to file WS within 30 days after service of summons on him. However, for the reasons to be recorded in writing the court may, in a given case, also extend the time up to 90 days for filing written statement. There is no doubt that the provisions contained in Order 8 Rule 1 CPC is directing and not substantive and that in an appropriate case, on the defendant showing good cause of not being able to file the WS within the period of 90 days, the court can extend the time. But it is trite that the time could only be extended in exceptional hard cases. It was apparent from the legislative intention which has fixed the upper time limit as 90 days. Thus, the discretion could be exercised by the Court to extend the time not in routine and on the mere asking of the defendant. It is more so when the period of 90 days stands expired. As per Salem Advocate Bar Association, Tamil Nadu Vs. UOI AIR 2005 SC 3353, the discretion of the court to extend the time could not be exercised frequently and routinely so as to nullify the period fixed by Order 8 Rule 1 CPC. 7. Now having seen the intent of the law as above, it may be noted that in the instant case the petitioners were served on 17th August, 2010. Their
  3. 3. counsel appeared before the Court of ADJ on 6th October 2010. On 6th October 2010 the matter was adjourned for 01.12.2010 with the directions to the petitioners to supply advance copy of the WS to the opposite party. On 01.12.2010, the proxy counsel appeared for the petitioners, but, no WS was filed till then. It was only on the next adjourned date i.e. 04.02.2011 that the application for condonation of delay in filing the WS was filed by the petitioners. The plea that was taken that the documents were misplaced at some site and could be traced only after many efforts, is apparently vague and irresponsible. Similar is the plea that the documents were given to the counsel who took some time to prepare the WS. In the backdrop of mandatory provision of law regarding filing of WS, the pleas taken for seeking condonation are extremely vague and devoid of any merit. Not only that, it is no where stated as to which were the documents misplaced and from where these were traced and when, but the details of those documents has also not been stated. No information/ material/ documents/ ledger which were stated as not traceable, could be shown to be referred in the WS. When questioned as to which were those documents and when these were misplaced and from where these were traced and what was relevancy of those documents for the purpose of WS, the learned counsel appearing for the petitioners could not respond. The irresponsibility and carelessness of the petitioners is reflected from the fact that they were served on 17.08.2010, whereas the meetings of their Board of Directors to contest the case were held on 30.09.2010, 06.10.2010 and 22.10.2010. This would demonstrate that even the decisions regarding contesting the case were taken by the petitioners much after expiry of the stipulated period of 30 days for filing of WS. It is experienced that these are routine type of pleas which are taken for delayed filing of the WS. Such unscrupulous pleas are nothing, but due to irresponsible, careless and casual approach of the defendants in filing the Written Statements. It was because of this tactical approach of the defendants that the provisions were amended by the Parliament. The courts shall not exercise discretion in extending the time on such kind of pleas to scuttle the legislative intent and object of the provisions contained in Order 8 Rule 1 CPC. Such could not be in the category of cases where the court may exercise discretion to extend time in the ends of justice. 8. I do not see any illegality or perversity in the discretion exercised by the learned ADJ. There is no ground made out to interfere with the impugned order. The petition has no merit and is hereby dismissed in limini. Sd/-
  4. 4. M.L. MEHTA, J. JULY 02 , 2012

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