QUADRA STRAT TRADE SERVICES LTD. vs MAHINDER KUMAR MADAN

$~19

* IN THE HIGH COURT OF DELHI AT NEW DELHI

% Date of decision: 16th January, 2024
+ CS(OS) 274/2019, I.A. 7607/2019

QUADRA STRAT TRADE SERVICES LTD. ….. Plaintiff
Through: Mr. Rajiv Bajaj, Advocate.

Versus

MAHINDER KUMAR MADAN ….. Defendant
Through: Mr. A.D. Malik, Advocate.

CORAM:
HON’BLE MS. JUSTICE NEENA BANSAL KRISHNA

J U D G M E N T (oral)
I.A. 8126/2020 (under Order VIII Rule 10, Order XII Rule 6 read with Section151 CPC on behalf of the plaintiff)

1. The present application has been filed under Order VIII Rule 10 of the Code of Civil Procedure 1906 (hereinafter referred to as “CPC”) read with Section 151 CPC on behalf of the plaintiff for striking off the defence of the defendant.
2. A suit for Specific Performance has been filed for the execution of Sale Deed for property bearing No. 1/124, W.H.S, Kirti Nagar, New Delhi 110015 in favour of the plaintiff along with a relief for Mandatory Injunction, against the defendant.
3. It is submitted in the application that the Written Statement filed by the defendant on 10.01.2020, was returned under objections by the Registry. Thereafter, the Written Statement was re-filed on 28.01.2020 which was again returned under objections. An opportunity was granted to the defendant to file the Written Statement after removing all the defects within two weeks, subject to payment of costs of Rs. 5,000/- vide Order dated 17.02.2020. However, the defendant has failed to pay the costs till date. The extended time-limit granted vide Order 17.02.2020 also expired on 03.03.2020. The court’s functioning, thereafter got restricted since18.03.2020 on account on Covid19 pandemic.
4. It is further stated that till date the Written Statement is not on record as the defendant has taken no steps to remove the defects marked by the Registry, though the plaintiff has filed its replication.
5. It is submitted that the defendant cannot take the plea of COVID-19 Pandemic as time granted to the defendant had expired much earlier, on 03.03.2020. Therefore, the plaintiff has sought for the defence of the defendant to be struck down.
6. The defendant in its Reply has asserted that the present application is infructuous as the defendant has already filed the Written Statement on time which had not come on record only due to technical objections. A copy of the Written Statement had been sent to the plaintiff through speed post, who on receipt of the same, has also filed their Replication. Thus, the plaintiff is not entitled to file an application under Order VIII Rule 10 CPC.
7. It is asserted that the defendant, through its advocate, had removed all the objections in the additional time granted vide Order dated 17.02.2020, and re-filed the Written Statement in accordance with the Order. Further, the defendant gave an Undertaking for the payment of costs on the next date of hearing. However, the Court’s working was suspended due to the COVID-19 Pandemic and the matter was not taken up on the next date of hearing.
8. Further, the defendant has marked his presence on each date of hearing. Therefore, it is asserted that the defendant did not take advantage of the lockdown and there is no ground for striking his defence.
9. Submissions heard.
10. For the sake of clarity, the filing details have been tabulated below:
Particulars
Date
Service of Summons to the defendant
15.11.2019
Order issued by this court to file the Written Statement within 30 days
Order dated 20.11.2019
1st filing of Written Statement

10.01.2020
(returned on objections)
1st re-filing of written statement

28.01.2020
(returned on objections)
Two weeks granted for filing the Written Statement subject to the payment of costs of Rs. 5,000 to the plaintiff.
Order dated 17.02.2020
2nd re-filing

27.02.2020
(not taken on record)
3rd re-filing

10.12.2023
(returned on objections)
4th re-filing
22.12.2023 (passed)

11. The record shows that the summons of this case was served on the defendant on 15.11.2019. However, since the defendant had not received the complete paperbook, the same was supplied in court vide Order dated 20.11.2019. This implies that the defendant had the time of 30 days and extended time of 90 days to file the written Statement which implies that the Written Statement could be filed upto 20.03.2020. However, the defendant failed to file the Written Statement within this period.
12. The defendant had submitted before this Court that the Written Statement had already been filed on 10.01.2020 and vide Order dated 17.01.2020, the application for condonation of delay in filing the Written Statement was allowed.
13. Though the Written Statement had been filed on 10.01.2020, it was returned by the Registry as certain objections were noted. The defendant re-filed the Written Statement on 28.01.2020 i.e. within 18 days, which was again returned under objections. An opportunity of two weeks was further granted to file the Written Statement subject to the payment of costs of Rs. 5,000 to the plaintiff, vide Order dated 17.02.2020.
14. Thereafter, the defendant, again re-filed the Written Statement on 27.02.2020, yet the same had not been taken on record. As per 3rd re-filing dated 10.12.2023, the Written Statement was again under objection. It was finally taken on record after removal of Objections on 22.12.2023. Pertinently, the defendant failed to file the Written Statement within the prescribed 30 days of being served.
15. Chapter VII Rule 4 of the Delhi High Court (Original Side) Rules, 2018 provides for the extension that can be granted by courts if the Written Statement is not filed within 30 days of being served. The provision reads as under:
“4. Extension of time for filing written statement.—If the Court is satisfied that the defendant was prevented by sufficient cause for exceptional and unavoidable reasons in filing the written statement within 30 days, it may extend the time for filing the same by a further period not exceeding 90 days, but not thereafter. For such extension of time, the party in delay shall be burdened with costs as deemed appropriate. The written statement shall not be taken on record unless such costs have been paid/ deposited. In case the defendant fails to file the affidavit of admission/ denial of documents filed by the plaintiff, the documents filed by the plaintiff shall be deemed to be admitted. In case, no written statement is filed within the extended time also, the Registrar may pass orders for closing the right to file the written statement.”
16. Thus, a maximum extension of 90 days can be granted, which however is not a matter of right. Further, the words “but not thereafter” makes it unequivocally clear that in no circumstance can an extension beyond 30 + 90 days be granted.
17. Since, the defendant had filed the Written Statement for the first time on 10.01.2020 (which had not been taken on record due to the objections raised by the registry) and he had failed to clear the objections, this Court Vide Order dated 17.02.2020 had granted only an extension of two weeks from the said date for clearing the objections. This extension was subject to payment of costs of Rs. 5,000/- to the plaintiff. However, the defendant has neither cleared the objections even by 03.03.2020 i.e. when the two week extension period expired, nor has he paid the costs of Rs. 5,000 till the present date. The Order permitting filing of the Written Statement was conditional to payment of costs which never got complied by the defendant. An oral submission had been made by the Counsel for the defendant in court that he is ready to hand over the sum of Rs. 5,000 to the plaintiff right away. Such a plea at such a belated stage, particularly when the defects noted by the Registry had not been cleared within the prescribed timeframe, cannot save the defence of the defendants.
18. In any case, the two week extension ended on 03.03.2020. Conspicuously, though the plaintiff had filed the Replication to the Written Statement filed on 10.01.2020, the defendant failed to clear the objections from time to time within the extension period, which expired much before the courts were suspended due the outbreak of the COVID-19 Pandemic. The Written Statement was taken on record only on 22.12.2023 which is way beyond the permissible period of 120 days which expired on 19. 03.2020. It is clearly beyond the time granted under Order VIII Rule 1 read with Rule 10 CPC.
19. The Covid Pandemic then struck the world leading to complete paralysis of all activities. The Apex Court in Re: Cognizance for Extension of Limitation, SUO MOTU WRIT PETITION (C) NO. 3 OF 2020 excluded the period from 15.03.2020 till 28.02.2022 for the purposes of calculating the limitation period. It directed that in cases where the limitation would have expired during the period between 15.03.2020 till 28.02.2022, notwithstanding the actual balance period of limitation remaining, all persons shall have a limitation period of 90 days from 01.03.2022.
20. Even if the period from 15.03.2020 till 28.02.2022, is excluded in the present case, the applicant ought to have filed the Written Statement within 90 days from 01.03.2022 i.e. till 31.05.2022.
21. Interestingly, a 3rd re-filing had been made on 10.12.2023 which was also under Objections. Thereafter, the defendant re-filed the Written Statement for the fourth time on 22.12.2023 which was finally taken on record.
22. Chapter IV Rule 3 of the Delhi High Court (Original Side) Rules, 2018 defines the next course of action when defective pleadings are filed. The provision reads as under:
“3. Defective pleading/ document.-(a) If on scrutiny, the pleading/ document is found defective, the Deputy Registrar/ Assistant Registrar, Incharge of the Filing Counter, shall specify the objections, a copy of which will be kept for the Court Record, and return for amendment and re-filing within a time not exceeding 7 days at a time and 30 days in aggregate.
(b) If the pleading/ document is not taken back for amendment within the time allowed under sub-rule (a), it shall be registered and listed before the Court for its dismissal for non-prosecution.
(c) If the pleading/ document is filed beyond the time allowed under subrule (a) the pleading/ document must be accompanied with an application for condonation of delay in re-filing of the said pleading/ document.
(d) Any party aggrieved by any order made by the Registrar under this Rule may, within fifteen days of the making of such order, appeal against it to the Judge in Chambers.”

23. The consecutive re-filings made by the defendant are neither within the seven day limit nor falls within the 30 day aggregate. The re-filings exceed the said aggregate by an enormous margin of over three years. Pertinently, the defendant has not filed any application for condonation of delay in the re-filings.
24. Therefore, the Written Statement in the present case, though filed on 10.01.2020, was only taken on record on 22.12.2023. The Written Statement so filed by the defendant, is beyond the 120 day time period and cannot be taken into consideration being highly belated and beyond the prescribed limit prescribed by Order VIII read with Delhi High Court (Original Side) Rules, 2018. The defence of the defendant is hereby struck off.
25. In so far as judgement under OVIII Rule10 CPC is concerned, the Apex Court in its recent judgement in the case of Asma Lateef vs Shabbir Ahmed and ors, CIVIL APPEAL NO. 9695 OF 2013 decided on 12.01.2024 held that Order VIII Rule 10 is a permissive rule that provides the court with two alternatives in case the defendant fails to file the Written Statement. It can either pronounce the judgement or direct the parties to prove their case by adducing evidence. Therefore, mere failure of the defendant to file the Written Statement does not relieve the plaintiff of its obligation to prove their case as the court cannot pass a mechanical judgement by invoking Rule 10 of Order VIII C.P.C.
26. The plaintiff by way of the same application, has also sought judgement on admissions under Order XII Rule 6 CPC. However, when there is no written statement on record, there are no admissions of the defendant on record on the basis of which a judgement on admissions may be granted.
27. In conclusion, even though the Written Statement of the defendant has not been taken on record, the plaintiff is still required to prove its case by adducing evidence to prove the relevant facts including its readiness and willingness for specific performance of the agreement to purchase the suit property, as required under Section 16 of Specific Relief Act, 1963.

28. List on 26.02.2024 for plaintiff’s evidence before the learned Joint Registrar.

(NEENA BANSAL KRISHNA)
JUDGE
JANUARY 16, 2024/Ek

CS(OS) 274/2019 Page 9 of 9