SMT. ANITA GOYAL & ANR. vs SH. VARUN BATTA
$~62
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of decision: 18.12.2023
+ CM(M) 2054/2023
SMT. ANITA GOYAL & ANR. ….. Petitioners
Through: Mr. Ankit Rana and Mr. Hitesh Kumar, Advocates
versus
SH. VARUN BATTA ….. Respondent
Through: Mr. Karan Babuta, Advocate along with Respondent in person
%
CORAM:
HON’BLE MS. JUSTICE MANMEET PRITAM SINGH ARORA
J U D G M E N T
MANMEET PRITAM SINGH ARORA, J (ORAL):
CM APPL. 64424/2023(for exemption)
Allowed, subject to all just exceptions.
Accordingly, the present application stands disposed of.
CM(M) 2054/2023 & CM APPL. 64423/2023 (stay)
1. This petition impugns the order dated 09.10.2023 passed by the District Judge, North-West District, Rohini Courts, Delhi (Trial Court) in CS (Comm.) No. 82 of 2020 titled as Varun Bhatia v. Anita Goyal & Anr. (commercial suit), wherein an application filed by the Petitioners herein under Order IX Rule 7 of the Code of Civil Procedure, 1908. (CPC) was dismissed.
2. The Petitioners herein are the defendants and the Respondent herein is the Plaintiff in the said commercial suit.
3. The commercial suit has been filed by the Respondent herein seeking recovery of an amount of Rs. 32,25,000/- (Rupees Thirty-Two Lakhs Twenty Five Thousand only), against the Petitioners herein.
4. The learned counsel for the Petitioners states that no summons of the suit were served on the Petitioners.
4.1. He states that he has inspected the record of the Trial Court and as per the record, the Respondent had served a copy of the order dated 14.08.2020 along with the paper-book on the Petitioners.
4.2. He states that since the summons for settlement of issues as required under Order V Rule 1 CPC were not received; the Petitioners failed to comprehend the obligation to file the written statement within the statutory period of limitation.
4.3. He states that the Petitioners and the Respondents are litigating against each other in two (2) separate legal proceedings and the matters are being keenly contested between the parties.
4.4. He states that the Petitioners had no reason to not participate in these proceedings and it is on account of the failure of receipt of summons that error has crept in. He states that a common written statement will be filed within three (3) days.
5. In reply, learned counsel for the Respondent who appears on advance service states that he has not inspected the Trial Court record but as per the record available with him and as per his understanding, he has been unable to trace copy of summons issued by the registry of the Trial Court.
5.1. He states that however, the Respondent bona fide acted upon the directions issued by Trial Court vide order dated 14.08.2020 and duly served the Petitioner a paper-book through speed post, email and WhatsApp.
5.2. He states that though no summons as mandated under Order V Rule 1 CPC were served by the Respondent, however, since the Petitioner had notice of the suit they should have appeared and filed the written statement. He states that three (3) years have been lost in the suit proceedings.
5.3. He states that in the facts of this case presumably because of the onset of the Covid pandemic; the summons as per Order V Rule 1 may not have been issued by the registry.
5.4. He states that however, the Petitioners herein were duly aware/informed about the pendency of the suit proceedings in view of the service affected by the Respondent as per order dated 14.08.2020.
6. This Court has considered the submission of the counsel for the parties. The Petitioner has made a submission, after inspecting the record of the Trial Court, that no summons for settlement of issues has been issued by the registry of the Trial Court and none received by the Petitioner. The Respondent has expressed his inability to confirm the said fact.
7. This Court has therefore relied upon the submission of the Petitioner and concluded that no summon for settlement of issues as per Order V Rule 1 CPC has been issued in the facts of this case.
8. This Court is of the opinion that in the absence of issuance and service of summons, the mandatory provision of Order VIII Rule 1 CPC as amended by Commercial Court Act, 2015 cannot be invoked in the facts of this case.
9. This Court has also perused the affidavit of service dated 04.11.2020 filed by the Respondent which states that copy of the order dated 14.08.2020 and the paper-book has been served on the Petitioners. No copy of the summons for settlement of issues was served on the Petitioners.
10. However, since the Petitioners were duly served with a copy of the paper-book on 26.08.2020, this Court is satisfied that the Petitioners had knowledge of the suit proceedings; however, the Petitioners as well have remained negligent in taking appropriate steps to participate in the suit proceedings. The participation of the Petitioners belatedly on 29.08.2022 has definitely delayed the trial.
11. Therefore, to balance the interest of justice the Petitioners are granted a final opportunity to file a common written statement along with documents relied upon on or before 22.12.2023 on the following terms:
11.1. In case, the Petitioners fail to file the common written statement and documents they will be liable to pay costs of Rs. 50,000/- for delay caused and their right to file written statement will stand fortified.
11.2. The written statement will be duly accompanied with an affidavit of admission/denial of the documents filed with the plaint.
11.3. Subject to the Petitioners filing the written statement, documents and affidavit of admission/denial on or before 22.12.2023, the Respondent will file his replication within four (4) weeks thereafter along with affidavit of admission/denial of documents filed with the written statement.
12. The learned Trial Court is requested to fix the matter before it on 23.12.2023 or any other date as per the convenience of the said Court, for verifying the Petitioners compliance.
13. It is clarified that since this order has been passed relying upon the statement of the Petitioner that he has not received summons in the suit from the registry, in the event it transpires from the record of the Trial Court that the summons were indeed issued and served on the Petitioner, the Trial Court will be at liberty to recall the permission to file written statement granted by this Court to the Petitioner.
14. With the aforesaid direction, the present petition is disposed of. Pending applications, if any, stand disposed of.
MANMEET PRITAM SINGH ARORA, J
DECEMBER 18, 2023/hp/MG
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CM(M) 2054/2023 Page 2 of 2