Order 5

Order Details: COPY OF ORDER
Pdf Text: CS (COMM.) 577/22
ANTRIKSH BHAWAN FLAT OWNERS AND OCCUPANTS
WELFARE SOCIETY REGD. Vs. ROOFTOP HOTELS AND
RESTAURANTS PVT. LTD.
20.10.2023
Present: Sh. Deepak Vuttsya, Ld. Counsel for the plaintiff through
video conferencing along with Sh. Akshay Kumar,
Advocate, present in the court today.
Sh. Sandeep Thukral, Ld. Counsel for respondent no.1.
Sh. Hitaish Chauhan, Ld. Counsel for respondent no.2.
Sh. Shriya Chanda, Ld. Counsel for respondent no.3.
Ld. Counsel for the plaintiff filed affidavit to the documents
of defendant no.1. He further submits that he has already filed
replication to the written statement of defendant no.1. The same are
taken on record. Copies supplied.
Ld. Counsel for defendant no.2 filed Vakalatnama. The
same is taken on record.
Ld. Counsel for defendant no.3 submits that he has already
filed written statement on 28.08.2023 along with statement of truth and
affidavit of admission and denial of documents and also filed an
application under Section 151 CPC read with Order 8 Rule 1 CPC
seeking condonation of delay of 60 days in filing the written statement.
Copies supplied. He submits that the written statement could not be
filed within the prescribed period as contemplated under Commercial
Courts Act as defendant no.3 was unable to collate the documents
required to finalize and prepare the written statement and therefore,
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there is delay of 60 days, after the prescribed period, in filing the
written statement. He however, submits that though defendant no.3
could not file written statement within 30 days as prescribed under the
provisions of Commercial Court Act but the same has been filed within
120 days. He further submits that the reasons for nonfiling of the
written statement within the stipulated period is neither intentional nor
deliberate but due to the reasons mentioned above. He further submits
that in case the delay is not condoned, it will prejudice the rights of
defendant no.3. On these premise, he prays that delay be condoned and
written statement be taken on record.
No reply to the application filed by the plaintiff. Ld. Counsel
for the plaintiff submits that the application is without any base and
there is no justified reasons given by defendant no.3 in the application
and prays for dismissal of the present application.
Heard.
The Hon’ble Supreme Court of India in a case titled as
Rani Kusum Vs. Kanchan Devi and Anrs, Civil Appeal No.
5066/2005 has held as under:
“All the rules of procedure are the handmaid of justice. The
language employed by the draftsman of processual law may be
liberal or stringent, but the fact remains that the object of
prescribing procedure is to advance the cause of justice. In an
adversarial system, no party should ordinarily be denied the
opportunity of participating in the process of justice dispensation.
Unless compelled by express and specific language of the Statute,
the provisions of the CPC or any other procedural enactment ought
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not to be construed in a manner which would leave the court
helpless to meet extraordinary situations in the ends of justice”.
It is also a settled proposition of law that refusing to
condone delay can result in meritorious matter being thrown out at the
very threshold and the cause of justice being defeated. When substantial
justice and technical consideration are pitted against each other, cause
of substantial justice deserves to be preferred for the other side cannot
have claim to have vested right in injustice being done because of non
deliberate delay. It is also a settled proposition of law that an
application for condonation of delay has to be considered with a liberal
approach to further the cause of justice. The duty of courts is to advance
the cause of justice. It can never be to legalize injustice on hair splitting
technicalities. The courts cannot be oblivious to the ground realties as
justice is not dispensed in vacuum.
As per the provisions enumerated under the Commercial
Courts Act, 2015, in case the defendant fails to file the written
statement within the prescribed 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 twenty days from the date of service of summons
and on expiry of one hundred 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
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on record.
Perusal of the record shows that the reasons so stated by
defendant no.3 are well founded and Ld. Counsel for defendant no.3 has
given plausible explanation as to why the written statement could not be
filed within time prescribed though the same has been filed within the
extended period of 120 days as permissible. In the present case, the
delay is explained satisfactorily and the same can be condoned.
No doubt defendant no.3 has not filed the written statement
within 30 days. Undoubtedly there is a delay in filing the written
statement however, the same is within the extended time of 120 days
but at the same time, this court is of the considered view that defendant
no.3 has given the plausible reasons for the delay in filing the written
statement.
The court is guided by the principles of natural justice. The
cardinal principle of ‘Audi alteram partum’ which is an essential rule of
principles of natural justice is germane to the matter. ‘Hear the other
side’ or ‘that no one should be condemned unheard’ is the basic
postulate of cannons of justice. Right of hearing is not just a procedural
formality, but an inalienable substantive right. The same cannot be
dispensed with under any circumstance. Considering the facts and
circumstances of the matter the plaintiff can be compensated in terms of
money for causing such delay caused by defendant no.3.
Accordingly, the instant application filed on behalf of
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defendant no.3 seeking condonation of delay in filing the written
statement is allowed subject to cost of Rs.5,000/ to be paid by
defendant no.3 to the plaintiff. Written statement is taken on record.
Copy supplied. Application stands disposed off. Replication be filed by
the plaintiff to the written statement of defendant no.3 within statutory
period of 45 days of receipt of copy of the written statement with
advance to the opposite party.
Ld. Counsel for the plaintiff submits that subject to filing of
the replication to the written statement of defendant no.3, the pleadings
are complete qua defendants no.1 and 3.
As regards defendant no.2, as per the record, defendant no.2
was served on 06.02.2023 and defendant no.2 put appearance before the
court on 02.03.2023. On 02.03.2023, Ld. Counsels for defendants no.1
and 2 submitted that they were not supplied with some legible copies of
documents and the court ordered for supply of the same to them.
Ld. Counsel for the plaintiff filed whatsapp chat between the
plaintiff and defendant no.2 and submits that on 02.03.2023, they have
supplied the legible copies of the documents to defendant no.2. He
further submits that same set of documents was supplied to defendant
no.1 and defendant no.1 has filed written statement.
Ld. Counsel for defendant no.2 submits that since they have
not received complete set of documents, therefore, they could not file
written statement.
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Perusal of the record shows that since 02.03.2023 till today,
there was ample time for defendant no.2 to take steps in this regard in
case defendant no.2 was not supplied with complete set of documents or
legible copy of documents.
Ld. Counsel for defendant no.2 submits that he has sent
email to the plaintiff stating therein that they have not been supplied
legible copy of the documents.
Perusal of the record shows that on two subsequent dates viz
27.05.2023 and 29.08.2023, the court was on leave. Be that as it may
be, the submissions of Ld. Counsel for defendant no.2 that since the
court was on leave therefore, he could not move appropriate
application, is without any base as he has ample time, in case he found
that either he has not received the complete set of documents or legible
copy of the documents, to approach the court and apprise the court,
which is not the case here. Sending of email three days back, as stated
by the Ld. Counsel for defendant no.2, shows that defendant no.2 is
trying to create cause for nonfiling the written statement within the
stipulated time.
Considering the facts and circumstances of the case and the
prescribed period for filing the written statement has already expired
and also the conduct of defendant no.2 shows that his intention is to
delay the matter on one pretext or the other, the right of defendant no.2
to file written statement is forfeited.
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Put up this matter for framing of issues and case
management hearing, on 19.01.2024.
(Anurag Sain)
District Judge (Commercial Court01),
Patiala House Courts Complex,
New Delhi/20.10.2023
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