State Bank of India vs Robobank and Others

V.K. Jain, J.

OA 121/2011 & IA 14060/2011 (u/S. 5 of Limitation Act)

This appeal is directed against the order of the Joint Registrar dated 4th March 2011, whereby she closed the right of Defendant No. 1 to file written statement. A perusal of the record would show that Ms. Sunita Dutt, counsel for Defendant No. 1 appeared in this case for Defendant No. 1 on 28th May 2008 and stated that the complete set of documents had not been supplied to the Defendant. The Plaintiff undertook to supply the same within a week. Written statement was directed to be filed within the statutory period on supply of complete set of documents. The matter was adjourned to 29th August 2008. On 29th August 2008 it was noticed that written statement had not been filed on behalf of Defendant No. 1 and it was directed to file the same as per law. On that date No. grievance was made by Defendant No. 1 that copy of the plaint had not been supplied to it. The matter was adjourned to 4th February 2009. On 4th February 2009 it was again noticed that written statement had not been filed on behalf of Defendant No. 1 and it was directed to be filed as per law. Again the Court was not informed that copy of the plaint had not been supplied to Defendant No. 1 and therefore it had not been able to file written statement. On 14th May 2009 it was again noticed that written statement had not been filed by Defendant No. 1. It was directed to be filed as per law. On 25th January 2010 also it was noted by the Joint Registrar that written statement had not been filed by Defendant No. 1 and he passed an order that written statement be filed as per law. Even on these dates, there was No. grievance expressed by Defendant No. 1 claiming non supply of the copy of the plaint. On 18th November 2010 No. one appeared before the Joint Registrar on behalf of Defendant No. 1. On 17th February 2011 No. one appeared for the parties before the Joint Registrar and the matter was adjourned to 4th March 2011. It was on 4th March 2011 that the Joint Registrar, noticing that written statement had not been filed by Defendant No. 1 in spite of repeated opportunities, closed its right to file the written statement. On that date the learned Counsel for Defendant No. 1 stated that she had not received the copy of the plaint though copies of documents had been supplied to her. This, however, was rebutted by the learned Counsel for the Plaintiff, who stated that he had supplied all the copies in 2008 itself, as per courier receipt in original, being produced in the Court. Admittedly, throughout this period not a single letter was sent by the learned Counsel for Defendant No. 1 to the learned Counsel for the Plaintiff requesting him to supply a copy of the plaint to her. In these circumstances, I find myself unable to accept the plea that copy of the plaint had not been supplied to Defendant No. 1 and that is why it could not file the written statement.

Order 8 Rule 1 of the CPC provides that the Defendant shall within 30 days of the date of receipt of summons file a written statement. If, however, he fails to file written statement within 30 days he is to be allowed to file the same, within 90 days from the date of service of summons. Even if the period of 90 days is computed from 28th May 2008 when there was appearance on behalf of Defendant No. 1 for the first time, there is delay of more than three years in filing the written statement.

It was thus to be seen that as per the statutory provision, the normal period prescribed for filing written statement is 30 days from the date of receipt of summon though for reasons to be recorded into writing, the Court can allow the written statement to be filed at a later date, which is not beyond 90 days from the date of service of summon by the Defendant. Written statement has been filed on 08th December, 2010, i.e., more than 6 months after receipt of summon by Registered Post and more than 5 months after receipt of summon through process server.

In Kailash Vs. Nanhku and Others, Supreme Court, inter alia, observed as under:

Three things are clear. Firstly, a careful reading of the language in which Order VIII, Rule 1 has been drafted, shows that it casts an obligation on the Defendant to file the written statement within 30 days from the date of service of summons on him and within the extended time falling within 90 days. The provision does not deal with the power of the court and also does not specifically take away the power of the court to take the written statement on record though filed beyond the time as provided for. Secondly, the nature of the provision contained in Order VIII, Rule 1 is procedural. It is not a part of the substantive law. Thirdly, the object behind substituting Order VIII, Rule 1 in the present shape is to curb the mischief of unscrupulous Defendants adopting dilatory tactics, delaying the disposal of cases much to the chagrin of the Plaintiffs and Petitioners approaching the court for quick relief and also to the serious inconvenience of the court faced with frequent prayers for adjournments. The object is to expedite the hearing and not to scuttle the same. The process of justice may be speeded up and hurried but the fairness which is a basic element of justice cannot be permitted to be buried.

It is also to be noted that though the power of the Court under the proviso appended to Rule 1 of Order VIII is circumscribed by the words - "shall not be later than ninety days" but the consequences flowing from non-extension of time are not specifically provided though they may be read by necessary implication. Merely, because a provision of law is couched in a negative language implying mandatory character, the same is not without exceptions. The courts, when called upon to interpret the nature of the provision, may, keeping in view the entire context in which the provision came to be enacted, hold the same to be directory though worded in the negative form.

Considering the object and purpose behind enacting Rule 1 of Order VIII in the present form and the context in which the provision is placed, we are of the opinion that the provision has to be construed as directory and not mandatory. In exceptional situations, the court may extend the time for filing the written statement though the period of 30 days and 90 days, referred to in the provision, has expired. However, we may not be misunderstood as nullifying the entire force and impact - the entire life and vigour - of the provision. The delaying tactics adopted by the Defendants in law courts are now proverbial as they do stand to gain by delay. This is more so in election disputes because by delaying the trial of election petition, the successful candidates may succeed in enjoying the substantial part, if not in its entirety, the term for which he was elected even though he may loose the battle at the end. Therefore, the judge trying the case must handle the prayer for adjournment with firmness. The Defendant seeking extension of time beyond the limits laid down by the provision may not ordinarily be shown indulgence.

Ordinarily, the time schedule prescribed by Order VIII, Rule 1 has to be honoured. The Defendant should be vigilant. No. sooner the writ of summons is served on him he should take steps for drafting his defence and filing the written statement on the appointed date of hearing without waiting for the arrival of the date appointed in the summons for his appearance in the Court. The extension of time sought for by the Defendant from the court whether within 30 days or 90 days, as the case may be, should not be granted just as a matter of routine and merely for asking more so, when the period of 90 days has expired. The extension can be only by way of an exception and for reasons assigned by the Defendant and also recorded in writing by the Court to its satisfaction. It must be spelled out that a departure from the time schedule prescribed by Order VIII, Rule 1 of the Code was being allowed to be made because the circumstances were exceptional, occasioned by reasons beyond the control of the Defendant and such extension was required in the interest of justice, and grave injustice would be occasioned if the time was not extended.

(Emphasis supplied)

In Salem Advocate Bar Association, Tamil Nadu Vs. Union of India (UOI), Supreme Court, inter alia, observed as under:

It has been common practice for the parties to take long adjournments for filing written statements. The legislature with a view to curb this practice and to avoid unnecessary delay and adjournments, has provided for the maximum period within which the written statement is required to be filed. The mandatory or directory nature of Order VIII Rule 1 shall have to be determined by having regard to the object sought to be achieved by the amendment. It is, thus, necessary to find out the intention of the legislature. The consequences which may follow and whether the same were intended by the legislature have also to be kept in view.

The following view was taken by the Court with respect to extension of time beyond the prescribed period of 90 days:

In construing the provision of Order VIII Rule 1 and Rule 10, the doctrine of harmonious construction is required to be applied. The effect would be that under Rule 10 of Order VIII, the court in its discretion would have power to allow the Defendant to file written statement even after expiry of period of 90 days provided in Order VIII Rule 1. There is No. restriction in Order VIII Rule 10 that after expiry of ninety days, further time cannot be granted. The Court has wide power to ''make such order in relation to the suit as it thinks fit''. Clearly, therefore, the provision of Order VIII Rule 1 providing for upper limit of 90 days to file written statement is directory. Having said so, we wish to make it clear that the order extending time to file written statement cannot be made in routine. The time can be extended only in exceptionally hard cases. While extending time, it has to be borne in mind that the legislature has fixed the upper time limit of 90 days. The discretion of the Court to extend the time shall not be so frequently and routinely exercised so as to nullify the period fixed by Order VIII, Rule 1

(Emphasis supplied)

The proposition of law which emerges from this case is that despite use of the word "shall" therein though the provisions contained in Order VIII Rule 1 of CPC are not mandatory in nature, the time beyond 90 days is not automatic to be granted in course, merely on asking. Filing written statement preferably within 30 days and on reasons being given, within 90 days from the date of service of summon is the rule and extension of time beyond 90 days is the exception to be allowed only where the Court is satisfied that refusal to extend time is likely to result in miscarriage of justice.

The Courts need to guard themselves against misuse of an unduly liberal approach in extending time beyond 90 days, lest such an approach is misused by unscrupulous litigants to deliberately withhold filing of written statement with a view to delay progress of the trial and then come out with an application for extension of time for the purpose. There is No. dearth of litigants who would not hesitate in adopting dilatory tactics so as to postpone the outcome of a civil litigation, wherever they find the law and rules of procedure to be excessively soft and prone to misuse.

The Defendant seeking extension of time beyond 90 days is required to disclose cogent and convincing grounds which would entitle him to invoke the inherent power of the Court for extension of time, beyond the prescribed period of 90 days. The Court needs to be satisfied that the case before it was a genuine case and refusal to grant extension of time is likely to cause grave hardship to the Defendant which, in the facts and circumstances of the case, he ought not to suffer.

It is also evident from the above-referred decisions of Supreme Court that extension of time beyond 90 days cannot be granted as a matter of course and the discretion vested in the Court needs to be exercised with due care and caution so as to ensure that an unscrupulous litigant is not able to circumvent the time limit fixed by the Legislature, unless he was prevented, on account of reasons beyond his control, from filing written statement within the prescribed period of 90 days.

In the facts and circumstances of the case, I find No. such exceptional circumstance or inability on the part of Defendant No. 1 which would entitle him to invoke the inherent powers of the Court to allow filing of Written Statement after more than 3 years. I find No. merit in the appeal and IA and the same are hereby dismissed.

IA 14050/2011 (Under Section 151 Code of Civil Procedure)

This is an application filed by Defendant No. 1 to determine the preliminary issue of jurisdiction. Since the right of Defendant No. 1 to file the written statement has been closed, No. such application by it is maintainable. The application is misconceived and is dismissed.