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TMI Blog2018 (5) TMI 1919X X X X Extracts X X X X X X X X Extracts X X X X ..... f Civil Procedure, 1908, the defendant is obligated to present a written statement of his defence within thirty days from the date of service of summons. Proviso thereto enables the Court to extend the period upto ninety days from the date of service of summons for sufficient reasons - In such a situation, onus upon the defendant is of a higher degree to plead and satisfactorily demonstrate a valid reason for not filing the written statement within thirty days. This reason of the High Court that delay was condoned by balancing the rights and equities is farfetched and, in the process, abnormal delay in filing the written statement is condoned without addressing the relevant factor, viz. whether the respondents had furnished proper and satisfactory explanation for such a delay. The approach of the High Court is clearly erroneous in law and cannot be countenanced - Notice of Motion seeking condonation of delay was rejected - Appeal allowed. - Civil Appeal Nos. 4266-4267/2018 - - - Dated:- 7-5-2018 - MR A. K. SIKRI AND MR ASHOK BHUSHAN, JJ. For The Appellant (s) : Mr. E. C. Agrawala, AOR For The Respondent (s) : None ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lop the Kondivita Plot by constructing buildings and sell the premises on ownership basis. Memorandum of Understanding was executed between M/s. Shree Siddhivinayak Developers Ltd. and ATCO Securities and Finance Ltd. (sister concern of the appellant now known as Kimaya Wellness Ltd.) (hereinafter referred to as the appellant s sister concern ) pursuant to which appellant s sister concern was granted development and marketing rights of 2,00,000 sq. ft. FSI in a property to be constructed on the piece and parcel of land bearing S. No. 3(P) and 4(P) CST No. 5P and 6 admeasuring 26,033 sq. mtrs. and further S. No. 3(P) CST No. 5(P), 6(P) and 7(P) admeasuring 7,341 sq. mtrs. of the Revenue Village Kopri, Powai Road, Taluka Kurla within Greater Bombay (hereinafter referred to as the Kopri Plot ) for a consideration of ₹ 44,00,00,000/- (Rupees Forty Four Crores) only. Earlier Kimaya Wellness Ltd. name was ATCO Securities and Finance Ltd. The name was subsequently changed to Saral Disha Investments Ltd. and again the said name changed to Kimaya Wellness Ltd. ( b) Pursuant to the MOU dated December 20, 1995, appellant s sister concern ad ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e) To cut the long story short, it is suffice to note that when the possession of the flats was not delivered, the appellant demanded back the amount paid to respondent No. 2. According to the appellant, the amount paid was not refunded. It led to filing of the following three cases: ( i) Summary Suit No. 4870 of 1999 by the sister concern of the appellant in the High Court of Judicature at Bombay seeking decree of ₹ 4,91,60,000/- along with interest @18% p.a. ( ii) Suit No. 3813 of 2000 by the appellant in the High Court of Judicature at Bombay for decree in the sum of ₹ 7,88,90,000/- along with interest @18% p.a. ( iii) M/s. Shree Siddhivinayak Developers Ltd. (respondent No. 2) and its all partners also filed suit No. 305/2001 against Saral Disha Investment Limited (sister concern of the appellant). 5. Various developments which took place in these three suits need not be noted except that in Notice of Motion taken out by the appellant in its suit, Court Receiver was appointed to take physical possession of 23 flats in Emerald Court . Further, unconditional leave to defend ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... stage that Special Leave Petition was filed challenging the order of the Division Bench dated January 6, 2016 (SLP No. 28775 of 2016) has been dismissed by this Court on September 4, 2017. 8. Insofar as Notice of Motion No. 1211 of 2015 in Suit No. 3813 of 2000 is concerned, it resulted in altogether opposite outcome. The learned Single Judge passed the order dated March 15, 2016 allowing the same thereby condoning the delay in filing the written statement with the imposition of cost of 5 lakhs upon the respondents. The reason given by the learned Single Judge was that till the year 2009, Writ of Summons had not been served upon the respondents and, therefore, the delay was of 5 years and 54 days and was condoned on the ground that the appellant also took number of years in serving the summons upon the respondent. Appeal against this order filed by the appellant has been dismissed vide impugned order dated April 18, 2016 affirming the order of the learned Single Judge. The entire reasoning in support of this order is contained in para 5 of the judgment of the High Court which reads as under: 5 In the impugned order, the learned Judge ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the respondents have entered appearance. Accordingly, the Registry processed the matter for listing before the Court and it was listed for hearing on March 26, 2018. On that day also, nobody appeared on behalf of the respondents. Still in order to give one more opportunity, the matter was directed to be listed after three weeks. It again came up for hearing on April 20, 2018. Since respondents failed to appear in spite of all the aforesaid chances given to them, this Court is left with no option but to proceed ex-parte against the respondents and heard the matter in their absence. 11. Mr. Amar Dave, learned counsel appearing for the appellant submitted that the reason given by the High Court in condoning the delay was totally erroneous inasmuch as Writ of Summons were served upon the respondents immediately after the filing of the suit and not in the year 2009 as mentioned. It was further argued that, in any case, even if when the summons were served in the year 2009, there was no satisfactory explanation submitted by the respondents seeking condonation of delay which was more than 5 years 54 days even on counting the period from the year 2009. He also submitted t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ten statement within the said period of thirty days, he shall be allowed to file the same on such other day, as may be specified by the Court, for reasons to be recorded in writing, but which shall not be later than ninety days from the date of service of summons. 15. This provision has come up for interpretation before this Court in number of cases. No doubt, the words shall not be later than ninety days do not take away the power of the Court to accept written statement beyond that time and it is also held that the nature of the provision is procedural and it is not a part of substantive law. At the same time, this Court has also mandated that time can be extended only in exceptionally hard cases. We would like to reproduce the following discussion from the case of Salem Advocate Bar Association, Tamil Nadu v. Union of India , (2005) 6 SCC 344: 21. ... There is no restriction in Order 8 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 8 Rule 1 providing for ..... X X X X Extracts X X X X X X X X Extracts X X X X
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