ANTRIKSH BHAWAN FLAT OWNERS AND OCCUPANTS WELFARE SOCIETY REGD.  Vs GOPAL ANSAL HUF & ORS.Judgment by Delhi High Court

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* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ CS(COMM) 157/2023, I.A. 5482/2023, I.A. 5484/2023, I.A. 9512/2023
ANTRIKSH BHAWAN FLAT OWNERS AND OCCUPANTS WELFARE SOCIETY REGD. ….. Plaintiff
Through: Mr. Kanwal Chaudhary, Ms. Niharika, Advs.

versus

GOPAL ANSAL HUF & ORS. ….. Defendants
Through: Mr. Harsh Ajay Singh, Adv. for D-1.
Mr. Akash Bhadana, Adv. for D-2 (VC).
Mr. Ajay Digpaul, Mr. Kamal Digpaul, Ms. Ishita Pathak, Advs. for D-3/ UOI.
Mr. Anupam Srivastava, ASC for GNCTD with Mr. Abhilash Mathur, Ms. Sarita Pandey, Ms. Anushka Bhatnagar, Advs. for D-4/Police.
SI Mahavir Jogi, PS Barakhamba Road, New Delhi.

% Date of Decision: 15.03.2024.

CORAM:
HON’BLE MR. JUSTICE DINESH KUMAR SHARMA

J U D G M E N T

DINESH KUMAR SHARMA, J. (Oral)
1. The present suit has been filed for declaration, permanent & mandatory injunctions and damages with the following prayer:
�A) Pass a Decree of Declaration declaring the terms of Builder-Buyer Agreement, Bye-Laws; Decisions and Resolutions of Plaintiff Society as regards total and complete administration, maintenance, repair, upkeep and replacement of common facilities; General common areas and facilities etc., binding upon all occupants/owners etc. including Defendant No.1 in the commercial building Antriksh Bhawan, 22, Kasturba Gandhi Marg, New Delhi 110001;
B) Pass a Decree of Permanent Injunction restraining Defendant No.1 and 2, their agents, servants, successors or assigns and Police Officials of P.S. Barakhamba Road from carrying out any renovation/construction in Flat No.811, Antriksh Bhawan, 22, Kasturba Gandhi Marg, New Delhi 110001 in contravention of terms of Builder- Buyer Agreement, Bye-Laws; Decisions and Resolutions of Plaintiff Society and/or without seeking appropriate permission from Plaintiff Society;
C) Pass a Decree of Mandatory Injunction directing Defendant No.1& 2, their agents, servants, successors or assigns to remove the Panel and/or any material installed for the purposes of renovation/beautification outside Flat No.811, Antriksh Bhawan, 22, Kasturba Gandhi Marg, New Delhi 110001;
D) Pass a Decree of Mandatory Injunction directing Police Officials of P.S. Barakhamba Road to restrain themselves from assisting in any manner Defendant Nos. 1 or 2 carry out the renovation work in Flat No.811 in Antriksh Bhawan, 22, Kasturba Gandhi Marg, New Delhi 110001;
E) Pass a Decree of Damages in favour of Plaintiff and against the Defendants for a sum of Rs. 10,09,500/- (Rupees Ten Lakhs Nine Thousand and Five Hundred Only) for having damaged the Lift Lobby of 8th Floor of Antriksh Bhawan, 22, Kasturba Gandhi Marg, New Delhi 110001 and for constraining Plaintiff Society approach Court of laws and for causing undue harassment;
F) Pass such and/or other orders as this Hon’ble Court may deem fit and proper in the facts and circumstances of this case.�
2. The prayer as contained in Clause-B has been sought against Defendant No. 4 along with Defendant Nos. 1, 2 & 3.
3. At the outset, learned counsel for Defendant No.4 has raised an objection that in the absence of notice served under Section 140 of the Delhi Police Act (hereinafter referred as �DP Act�). The present suit against Defendant No.4 is liable to be dismissed.
4. Learned counsel submits that the service of the notice under Section 140 of the DP Act is mandatory to be served before the institution of suit against the officers of the Delhi Police.
5. Learned counsel for the plaintiff has controverted this submission. Learned counsel submits that a bare reading of Section 140 (1) of the Act makes it clear that if the suit has been filed within the three months after the date of the act complained of, the notice under Section 140 DP Act is not required. Learned counsel for the plaintiff submits that in the present case, the alleged wrong was done on 25.02.2023 and the present suit was filed on 14.03.2023. Learned counsel submits that therefore the present suit is maintainable against Defendant No.4. In support of his contention learned counsel has relied upon R.S. Yadav v. Sumer Singh Salkan & Ors in FAO (OS) 157/2015 and FAO (OS) 238/2015.
6. Learned counsel for the defendant submits that R.S. Yadav (Supra) is not applicable to the facts of the present case.
7. I consider that the contention of the learned counsel for the plaintiff is liable to be rejected out rightly.
8. Section 140 of the DP (Delhi Police) Act 1978, reads as under
�140. Bar to suits and prosecutions.�(1) In any case of alleged offence by a police officer or other person, or of a wrong alleged to have been done by such police officer or other person, by any act done under colour of duty or authority or in excess of any such duty or authority, or wherein it shall appear to the court that the offence or wrong if committed or done was of the character aforesaid, the prosecution or suit shall not be entertained and if entertained shall be dismissed if it is instituted, more than three months after the date of the act complained of:
Provided that any such prosecution against a police officer or other person may be entertained by the court, if instituted with the previous sanction of the Administrator, within one year from the date of the offence.
(2) In the case of an intended suit on account of such a wrong as aforesaid, the person intending to sue shall give to the alleged wrongdoer not less than one month’s notice of the intended suit with sufficient description of the wrong complained of, and if no such notice has been given before the institution of the suit, it shall be dismissed.
(3) The plaint shall set forth that a notice as aforesaid has been served on the defendant and the date of such service and shall state what tender or amends, if any, has been made by the defendant and a copy of the said notice) shall be annexed to the plaint endorsed or accompanied with a declaration by the plaintiff of the time and manner of service thereof.�

9. The bare reading of Section 140 (1) makes it clear that the suit has to be filed within three months of the act of complaint. However, Section 140 (2) of the Act makes it mandatory for the plaintiff to serve with a notice of not less than one month with a sufficient description of the wrong complaint Section 140 (2) also makes it clear that if no such notice has been given before the institution of the suit, it shall be dismissed.
10. I consider that the condition of the service of notice under Section 140 of the DP Act before the institution of the suit is inviolable. The intention of the legislature is that officers or officials of the police force should be given advance notice for their alleged wrongdoing before the institution of the suit.
11. In respect of the judgment cited by learned counsel for the plaintiff, it is a settled proposition that every judgment has to be read textually and contextually. The precedents cannot be taken with blind eyes. The precedents have to be followed only if they fit to the facts of the particular case.
12. Hence the suit against Defendant No.4 is dismissed. Defendant No.4 is deleted from the array of the parties. Let an amended memo of parties be filed.
13. Mr. Harsh Ajay Singh, learned counsel appears for defendant No.1 seeks time to file the written statement.
14. Learned counsel for the plaintiff submits that defendant No.2 and 3 have not filed the written statements.
15. Learned counsel for the plaintiff submits that defendant No. 2 and 3 have duly been served on 11.01.2024 and as per order 8 Rule 1, the defendants are required to file a written statement within thirty days from the date of service of summons. Learned counsel submits that the further proviso grants discretion to the court for the extension of such period by 90 days only on an application with reasons to be recorded in writing.
16. Learned counsel submits that defendant Nos. 2 and 3 have neither filed the written statement nor any application seeking an extension of time for filing the written statement.
17. Learned counsel for defendant No.3 / Union of India states that there is no relief claimed against them and therefore their name may be deleted from the array of the parties.
18. In Sunil Sahoo v. Anoop Kumar Jain in FAO (COMM) 110/2021 the learned District Judge closed the right to file the written statement and struck off the defence. The order of the learned District Judge was challenged before this court and the contention was raised that the learned Trial Court had erred in law in closing the right of the appellant to file his written statement prior to the expiry of 120 days from the date of receipt of summons by the appellant.
19. It is pertinent to mention here that the suit in Sunil Sahoo (Supra) was also a commercial suit that took into account the provisions of the Commercial Courts Act and considered the relevant provisions and inter alia held as under
�10. A conjoint reading of the above provisions would clearly show that the written statement is to be filed by the defendant within 30 days of service of summons on him. This period may, however, be extended by the Court �for reasons to be recorded in writing and on payment of such costs as the Court deems fit�. The maximum period of such extension shall, however, not be later than 120 days from the date of service of summons on the defendant, whereafter the defendant shall forfeit the right to file the written statement. Therefore, the extension of period to file the written statement beyond the 30-day period also cannot be granted as a matter of routine or on mere asking. The defendant cannot claim an extension of time to file the written statement as a matter of course or without showing a justifiable cause for not being able to file the written statement within 30 days of the receipt of summons of the suit, as prescribed under Order V Rule 1, sub-rule (1) and Order VIII Rule 1 of the Code. The Court can grant the extension of time beyond 30 days only for the reasons to be recorded in writing. Beyond 120 days from the service of summons, even this discretionary power of the Court is taken away.
11. In SCG Contracts (India) Pvt. Ltd. v. K.S. Chamankar Infrastructure Pvt. Ltd. & Ors. (2019) 12 SCC 210, the Supreme Court while considering the effect of the above provisions of the Act has held as under:
�xxxxxx
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 8 Rule 10 also adding that the court has no further power to extend the time beyond this period of 120 days.�
12. In Kailash v. Nankhu & Ors., (2005) 4 SCC 480, the Supreme Court while holding the provisions of Order VIII Rule 1 applicable to ordinary civil suits as directory in character and not mandatory, had held that it is only in exceptional situations that the Court may extend the time for filing the written statement though the period of 30 days and 90 days (as applicable to ordinary suits) has expired; the judge trying the case must handle the prayer for adjournment with firmness and the defendant seeking extension of time beyond the limit 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 and file 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 the asking, but only by way of an exception and for reasons assigned by the defendant and also recorded in writing by the Court to its satisfaction. The reasons must be beyond the control of the defendant and such extension must be required in the interest of justice; and grave injustice would be required to be shown to occasion if the time was not extended.
13. In view of the above, the submission of the appellant that the learned Trial Court cannot close the right of the defendant to file the written statement before the expiry of 120 days of receipt of summons by such defendant, cannot be accepted.
14. In the present case, admittedly, the 30-day period from the date of receipt of summons by the appellant had expired; the appellant did not file any application before the learned Trial Court seeking extension of time for filing the written statement, much less show any cause for seeking such extension or for the inability to file the written statement within the prescribed time. The learned Trial Court was, therefore, correct in closing the right of the appellant to file the written statement by the Impugned Order.�

20. The court considers that the judgment of Sunil Sahoo (Supra) is squarely applicable on the facts of the present case.
21. The defendants were duly served and the notice was duly accepted as recorded vide order dated 11.01.2024. Admittedly, the written statement has not been filed by defendant Nos. 2 and 3. Hence the right to file the written statement stands closed for defendant Nos. 2 and 3 and their defence is struck of.
22. List before Joint Registrar (Judicial) for completion of pleading and admission/denial of documents on 26.04.2024.

DINESH KUMAR SHARMA, J
MARCH 15, 2024/AR/AK

CS(COMM) 157/2023 Page 1 of 9