Interim Order 7

Order Details: COPY OF JUDICIAL PROCEEDINGS
Pdf Text: CS (COMM.)/330/2023
CNR NO. : DLND010051002023
PUNJAB NATIONAL BANK
Vs.
KHAIRA TOURIST SERVICE AND ANR
12-07-2024
Present : Sh. Ritwik Chawla, Advocate for plaintiff
(
Through V/c).
None for defendants, despite calls.
Heard. File perused.
Report/ proceedings of Delhi Mediation Centre,
PHC, New Delhi received as ‘not settled’.
Ld. Counsel of plaintiff states at Bar that he has not
received any written statement from the side of the defendants so
far. He further submits that since, maximum period of 120 days
has already expired from the date of service of summons and
written statement has not been filed till date, the defence of the
defendants may kindly be struck off.
Record reveals that both the defendants were duly
served with the summons of the suit on 31-10-2023 for 04-11-2023
i.e. the next date of hearing, on which, defendants put their
appearance through counsel.
It may be noted that as per the Proviso of Sub Rule 1
of Order V Rule 1 CPC as applicable to the Commercial Courts
Act, the written statement has to be filed by the defendants within
30 days (extendable upto 120 days with the leave of the court and
that too subject to appropriate terms) from the date of service of
the process.
However, the written statement has not been filed by
defendants either within 30 days from the date of service or till
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date. Indisputably, maximum period of 120 days from the date of
service has already expired.
Now, it is no more
res integra that in a commercial
suit, the Court does not have power to condone the delay beyond
120 days. It would be apposite to reproduce the relevant portion of
the judgment passed by Hon’ble Apex Court in case titled as
SCG
Contracts India Pvt. Ltd. v. K. S. Chamankar Infrastructure Pvt.
Ltd. & Ors., AIR 2019 SC 2691, to quote:-
“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.
10. Several High Court judgments on the amended Order
VIII Rule 1 have now held that given the consequence of
non-filing of written statement, the amended provisions of
the Code of Civil Procedure will have to be held to be
mandatory. [See Oku Tech Private Limited v. Sangeet
Agarwal and Ors. by a learned Single Judge of the Delhi
High Court dated 11.08.2016 in CS (OS) No. 3390/2015 as
followed by several other judgments including a judgment
of the Delhi High Court in Maja Cosmetics v. Oasis
Commercial Pvt. Ltd. MANU/DE/7868/2017.
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 be
taken on record all points to the fact that the earlier law on
Order VIII Rule 1 on the filing of written statement under
Order VIII Rule 1 has now been set at naught.”
Therefore, in the totality of the facts and
circumstances of the case and in view of the fact that written
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statement has not been filed by defendants either within statutory
period of 30 days or within maximum period of 120 days from the
date of service of the summons, the opportunity of both the
defendants to file written statement is hereby closed.
Consequently, the defence of the both the defendants is struck off.
At this stage, it may be noted that as per plaint, the
defendant no.1 M/s Khaira Tourist Service, the borrower, is stated
to be a proprietorship firm of Sh. Satyendra Kumar. As per Memo
of Parties, the defendant no.1 is shown as “
M/s Khaira Tourist
Service through Its Proprietor Sh. Satyendra Kumar”, which is
improper as it is settled legal proposition that the proprietorship
firm is not a separate juristic person in the eyes of law and hence,
cannot be sued in its own name. Thus, the defendant no.1 ought to
have been shown as ‘Mr. Satyendra Kumar, Proprietor of M/s
Khaira Tourist Service’
Counsel of plaintiff also concedes in this regard.
In view of above, Ld. Counsel of plaintiff seeks and is
permitted to file fresh amended memo of parties on record thereby
incorporating ‘Mr. Satyendra Kumar, Proprietor of M/s Khaira
Tourist Service’ as defendant no.1, within one week from date of
this order.
Be awaited till 12:30 p.m. for appearance of the
defendants.
(VIDYA PRAKASH)
District Judge (Commercial Court)-02
Patiala House Court, New Delhi.
2nd Call at 12:35 p.m.
Present : Sh. Ritwik Chawla, Advocate for plaintiff
(
Through V/c).
None for defendants, despite repeated calls.
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Be awaited till 02:00 p.m. for appearance of the
defendants.
(VIDYA PRAKASH)
District Judge (Commercial Court)-02
Patiala House Court, New Delhi.
2nd Call at 02:15 p.m.
Present : Sh. Ritwik Chawla, Counsel for plaintiff
(
Through v/c).
None for defendants, despite repeated calls since
morning.
Heard. File perused.
In the totality of the facts and circumstances and
keeping in view the fact that none has appeared on behalf of either
of the defendants despite wait and repeated calls since morning,
they are hereby proceeded against as
ex parte.
Plaintiff is directed to file list of witnesses within 2
weeks from date of this order.
Put up for
ex parte PE on 09-08-2024.
(VIDYA PRAKASH)
District Judge (Commercial Court)-02
Patiala House Court, New Delhi.
12-07-2024(r)
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