Order 9

Order Details: COPY OF ORDER
Pdf Text: IN THE COURT OF SH. M. K. NAGPAL,
DISTRICT JUDGE (COMMERCIAL COURT)-13,
CENTRAL DISTRICT, TIS HAZARI COURTS,
DELHI
CS (COMM.) NO. 1585/2023
IN THE MATTER OF:
Narinder Singh
Proprietor of M/s A. G. Apparels
…….Plaintiff
Vs.
1. M/s R.R. Agencies
2. Sh. Sanjeet Rawat
Managing partner of defendant no.1 firm.
…....Defendants
ORDER ON APPLICATION UNDER ORDER 9 RULE
7 READ WITH SECTION 151 CPC OF DEFENDANTS
28.05.2024
1. By this order, I shall dispose of an application dated
09.05.2024 filed on behalf of defendants under Order 9 Rule 7
read with Section 151 CPC for setting aside the ex-parte order
dated 14.03.2024 of this court and for permitting them to defend
this case on merits.
2. The contents of application as well as of the reply thereto
dated 27.05.2024 filed on behalf of the plaintiff have been
perused, alongwith case record, and arguments addressed by Sh.
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K. K. Sharma, Ld. Counsel for defendants and Sh. Vipin Wason,
Ld. Counsel for plaintiff have been heard and considered.
3. This a suit for recovery of Rs. 44,47,075/- filed by the
plaintiff firm against the defendants on account of supply of
some apparels/garments. As per record, the summons for
settlement of issues were duly served upon the defendants by
way of speed post on 26.12.2023, but since no written statement
on their behalf was filed within the stipulated period of 30 days,
despite filing of appearance through counsel, and further since
even none had appeared on their behalf before this court on
14.03.2024 despite waiting till around 2pm, their right to file
written statement was closed and they were also proceeded ex-
parte in the case. Subsequently, without filing of written
statement on their behalf, the defendants have come up with the
present application under Order 9 Rule 7 read with Section 151
CPC for setting aside of the above ex-parte order and for
permitting them to defend the case on merits.
4. In terms of provisions contained in Rule 7 of Order 9 CPC,
an application for setting aside of an ex-parte order by defendant
is required to be filed on the adjourned date of hearing of the said
suit or before such adjourned date and the ex-parte order passed
against the defendant can be set aside if the defendant assigns a
good cause for his non-appearance on the previous date. The
court is also empowered to impose such terms as to costs or
otherwise for setting aside of such an order.
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5. It is the contention of Ld. Counsel for defendants that the
present application has been filed by defendants after 135 days
from the above date of their service i.e. 26.12.2023 and if the
period of 13 days spent by them in getting certified copies of the
documents of plaintiff on record and also the further period of 21
days of illness of defendants no. 2 is excluded from the above
mentioned period of 135 days, then the defendants can still be
permitted to file their written statement on record as the
maximum period of 120 days permitted for filing thereof in terms
of the amended provisions of Order 8 Rule 1A CPC was yet to
expire, when the said application has been filed. It is also his
contention that though the defendants have apprised their counsel
about non availability of certain documents, but their counsel
was out of station for sometime and he also took sometime in
inspection of the court record and hence, the written statement of
defendants could not be prepared and filed in time. It has also
been submitted that on the above date 14.03.2024, when the ex-
parte order was passed, the Ld. Counsel for defendant was out of
station. It has further been submitted that this court has inherent
powers to take the written statement of defendants on record
even after expiry of the above period of 120 days.
6. Ld. Counsel for plaintiff has vehemently opposed the
request of defendants for setting aside the above ex-parte order
and for permitting them to defend the case on merits on ground
that in view of the judgment dated 12.02.2019 passed by the
Hon’ble Supreme Court in Civil Appeal No. 1638/2019 in case
titled as M/s SCG Contracts India Pvt. Ltd. Vs. K. S.
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Chamankar Infrastructure Pvt. Ltd. & Ors., written statement
of defendants cannot be taken on record after expiry of above
period of 120 days. He has also referred to another judgment of
the Hon’ble Supreme Court in case Sheo Raj Singh (Deceased)
through LRs and Ors. Vs. Union of India & Ors.,
MANU/SC/1098/2023 in support of his submission that even the
excuses being offered by defendants in the present application for
non filing of their written statement cannot be termed as
reasonable explanations or grounds for condoning the delay in
filing of the written statement.
7. In terms of amended provisions contained in Order 5 Rule
1 as well as Order 8 Rule 1 CPC, as applicable to the
Commercial Courts, the written statement of a defendant in a
commercial suit is required to be filed within a period of 30 days
from the date of service of summons or not later than 120 days
from the said date, with leave of the court. Further, as stated in
the proviso to Rule 10 of Order 8 CPC applicable for such suits,
no court shall make an order to extend the time provided under
Rule 1 of Order 8 for filing of the written statement.
8. As stated above, summons upon defendants through speed
post were served on 26.12.2023 and on perusal of record, it is
found that Ld. Counsel for defendants had also appeared before
this court on the date fixed in case i.e. 06.01.2024 and had filed
one memo of appearance. The matter was adjourned to
13.02.2024 by this court awaiting filing of written statement on
behalf of defendants, but no written statement of defendants was
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filed on the said date, though Ld. Counsel for defendants had
appeared through video-conferencing and stated that he will file
his vakalatnama on the next date of hearing.
9. On the next adjourned date i.e. 14.03.2024, none had
turned up for defendants despite repeated calls and waiting till
around 2pm and since the stipulated period of 30 days for filing
of the written statement stood expired, their right to file written
statement was closed and they were also proceeded ex-parte and
the matter was adjourned further to 22.03.2024 for recording of
ex-parte evidence of plaintiff.
10. Ld. Counsel for defendants had then appeared before this
court on 22.03.2024, but still no written statement was filed by
defendants and Ld. Counsel is also found to have been duly
apprised by this court about the previous order and the matter
was adjourned by this court to 16.04.2024 for ex-parte evidence
of the plaintiff and a liberty was also given to the defendants to
move appropriate application for recalling of the said order, if
desired.
11. No written statement was filed on behalf of the defendants
even on the next adjourned date i.e. 16.04.2024 and further even
no application seeking leave of the court or for condonation of
delay in filing of the written statement was filed. Moreover, no
application under Order 9 Rule 7 CPC was also filed by the
defendants on this date and it was despite the fact that presence
of one proxy counsel for defendants is found to have been
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marked in ordersheet of that date. It was only subsequent thereto
that the present application came to be filed on behalf of
defendants on 09.05.2024. However, in between the maximum
period of 120 days as permitted by the above amended provisions
for filing of the written statement stood already expired on
24.04.2024.
12. In case of M/s SCG Contracts India Pvt. Ltd. (Supra),
while dealing with a situation where the written statement by a
defendant was not filed within the maximum stipulated period of
120 days, their Lordships had made the following observations:-
“8) The Commercial Courts, Commercial Division and
Commercial Appellate Division of High Courts Act, 2015
came into force on23.10.2015 bringing in their wake certain
amendments to the Code of Civil Procedure. In Order V,
Rule 1, sub-rule (1), for the second proviso, the following
proviso was substituted:
“Provided further that where the defendant fails to file
the written statement within the said period of thirty
days, he shall be allowed to file the written statement
on such other days, as maybe specified by the Court,
for reasons to be recorded in writing and on payment
of such costs as the court deems fit, but which shall not
be later than one hundred twenty days from the date
of service of summons and on expiry of one hundred
and twenty days from the date of service of summons,
the defendant shall forfeit the right to file the written
statement and the court shall not allow the written
statement to be taken on record.”
Equally, in Order VIII Rule 1, a new proviso was substituted
as follows:
5“Provided that where the defendant fails to file the
written statement within the said period of thirty days,
he shall be allowed to file the written statement on
such other day, as may be specified by the court, for
reasons to be recorded in writing and on payment of
such costs as the Court deems fit, but which shall not
be later than one hundred and twenty days from the
date of service of summons and on expiry of one
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hundred and twenty days from the date of service of
summons, the defendant shall forfeit the right to file
the written statement and the court shall not allow the
written statement to be taken on record.”
This was re-emphasized by re-inserting yet another proviso
in Order VIII Rule 10 CPC, which reads as under:-
“Procedure when party fails to present written
statement called for by Court.- Where any party from
whom a written statement is required under Rule 1 or
Rule 9 fails to present the same within the time
permitted or fixed by the Court, as the case may be, the
Court shall pronounce judgment against him, or make
such order in relation to the suit as it thinks fit and on
pronouncement of such judgment a decree shall be
drawn up.
Provided further that no Court shall make an
order to extend the time provided under Rule 1 of this
Order for filing of the written statement.”
A perusal of these provisions would show that ordinarily a
written statement is to be filed within a period of 30 days.
However, grace period of a further 90 days is granted which
the Court may employ for reasons to be recorded in writing
and payment of such costs as it deems fit to allow such
written statement to come on record. What is of great
importance is the fact that beyond 120 days from the date of
service of summons, the defendant shall forfeit the right to
file the written statement and the Court shall not allow the
written statement to be taken on record. This is further
buttressed by the proviso in Order VIII Rule 10 also adding
that the Court has no further power to extend the time
beyond this period of 120 days.
9) ………………………..
10) ………………………..
11) We are of the view that the view taken by the Delhi High
Court in these judgments is correct in view of the fact that
the consequence of forfeiting a right to file the written
statement; non-extension of any further time; and the fact
that the Court shall not allow the written statement to
betaken on record all points to the fact that the earlier law on
Order VIII Rule 1 on the filing of written statement under 8
Order VIII Rule 1 has now been set at naught.”
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13. Thus, it is crystal clear from the propositions of law laid
down by the Hon’ble Supreme Court in case of M/s SCG
Contracts India Pvt. Ltd. (Supra) that once the maximum
period of 120 days permitted by the amended provisions of Order
5 Rule 1 and Order 8 Rule 1 CPC has expired and the defendant
has failed to file his written statement within the said period, then
his right to file written statement has to be forfeited as the above
amended provisions of CPC are mandatory in nature and no
extension of further time is liable to be given to defendants for
filing of the written statement and even the court has no power to
extend the above time limit and to take the written statement on
record after expiry of the said period.
14. Though Ld. Counsel for defendants has also relied upon
another subsequent judgment dated 14.02.2022 of the Hon’ble
Supreme Court in Civil Appeal No. 1318/2022 in case titled as
Prakash Corporates Vs. Dee Vee Projects Limited, but it has
been observed that the said judgment cannot be applied to the
peculiar facts and circumstances of this case as in that case one
application under Section 10 read with 151 CPC for stay of the
suit proceedings was filed by defendant before the court and their
Lordships were of the view that the said application should have
been decided first by the court and since it was not decided and
was kept pending, the court was not justified in forfeiting the
right of defendant to file written statement in the case. However,
in the present case, the record reveals that a memo of appearance
and even a vakalatnama on behalf of defendants was filed on
record and though it was repeatedly observed by this court that
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their written statement has to be filed within the stipulated
period, but they failed to file it on record and they had even
failed to bring it to the notice of this court that copies of the
documents sent to them along with plaint by the plaintiff were
incomplete or deficient. Even the other judgment in case of
Zolba Vs. Keshao & Ors., AIR 2008 Supreme Court 2099
being relied upon by Ld. Counsel for defendants is held not
applicable in this case as the same is an old judgment and it was
given prior to amendment of the provisions of Order 8 Rule 1
CPC in its application to proceedings before a Commercial Court
as the Commercial Courts Act itself has been framed in the year
2015.
15. Therefore, in view of the above discussion, it is held that
the defendants cannot now be permitted to defend the case on
merits or to file on record their written statement as the
maximum period of 120 days prescribed by the amended
provisions of Order 5 Rule 1 and Order 8 Rule 1 CPC, as
applicable to the Commercial Courts, stands already expired.
Hence, to this effect the things cannot be reverted back by this
court even if the above order dated 14.03.2024 proceeding ex-
parte against the defendants is set aside by this court. Moreover,
from the facts stated in present application and the submissions
made by Ld. Counsel for defendants also, no genuine cause has
been shown or explanation has been given to justify the absence
of defendants or their counsel before this court on the above date
14.03.2024 and therefore, the said order cannot be set aside even
otherwise as no reasonable ground has been made out for setting
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aside the same. Further, even no explanation has been offered by
defendants for non filing of the present application on or before
the next adjourned date, i.e. 22.03.2024, from the date on which
the defendants were proceeded ex-parte. However, as per the
settled law, the defendants can be permitted to join and
participate in further proceedings of this case.
16. With these observations, this application under Order 9
Rule 7 read with Section 151 CPC of defendants is being
dismissed with liberty to them to join the further proceedings of
this case, but without filing of a written statement and without
raising a defence on merits.
Announced in the open court
Dated: 28.05.2024
(M. K. Nagpal)
District Judge, Commercial Court-13
Central District, Tis Hazari Courts,
Delhi/28.05.2024
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