2018 (12) TMI 1956 - HC - Indian Laws

Condonation of delay in filing written statements - right of the defendants to file the written statement was closed as 120 days prescribed in CPC for filing the written statement have expired - re-filing tentamounts to fresh filing or not - HELD THAT - It is admitted fact that the defendants have filed the written statement on 07.05.2018 after being served on 08.01.2018. It is settled legal position that delay in re-filing has to be considered on a different footing. Reference in this context may be had to the judgment of the Division Bench of this court in S.R. Kulkarni vs. Birla VXL Ltd. 1998 (5) TMI 421 - DELHI HIGH COURT has held that When there is negligence or causal approach in a matter like this in refiling of an application though the court may not be powerless to reject an application seeking condensation and may decline to condone the delay but at the same time passing of any other appropriate order including imposition of cost can be considered by the court to compensate the other party from delay which may occur on account of refiling of the application. The written statement is taken on record if re-filed within one week from today subject to costs of Rs.15, 000/- - Appeal allowed.

Summary

Issues:
Delay in filing appeal, right to file written statement, delay in re-filing written statement, condonation of delay, legal position on re-filing delay.

Analysis:
1. The judgment addressed an application seeking condonation of delay in filing an appeal due to personal issues faced by the counsel for the appellant.

2. The appeal was against an order closing the defendants' right to file a written statement as the prescribed 120 days had expired. The appellant contended that the written statement was filed within time but there was a delay in re-filing it after office objections.

3. The appellant's counsel argued that re-filing constituted fresh filing, citing the Northern Railway case, and opposed the appeal. However, the court noted that delay in re-filing is considered differently, as established in the S.R. Kulkarni case, emphasizing that the nature of objections and counsel's diligence play a role in condoning delays.

4. It was acknowledged that the defendants had initially filed the written statement on time after being served.

5. The court referred to the S.R. Kulkarni case to explain the approach to condoning delays in re-filing applications, highlighting the importance of diligence and lack of mala fide intentions in such cases.

6. The judgment also cited the Supreme Court's decision in Indian Statistical Institute case, emphasizing that when there is no delay in presenting a petition, the application of Section 5 of the Limitation Act differs.

7. The Division Bench's judgment in Northern Railway case was discussed, noting that it was set aside by the Supreme Court, clarifying the application of rules regarding re-filing petitions and fresh institutions.

8. Ultimately, the court allowed the appeal, permitting the re-filing of the written statement within a week, subject to costs, based on the legal principles discussed.

9. The appeal was disposed of, and further proceedings were scheduled before the Joint Registrar for the case.

This detailed analysis of the judgment covers the issues of delay in filing appeal, right to file written statement, delay in re-filing written statement, and the legal position on condoning delays in re-filing, providing a comprehensive understanding of the court's decision-making process.