..^^^ ^ li\ •/ IN THE HON'BLE HIGH COURT OF CHHATnSGARH AT BILASPUR ^~y WRIT PETITION (i^ N0. 15'3~7- /2008 PETITIONER DEFENDANT Jayaswals ^Teco Limited, A company incorporated under the relevant provisions of the Companies Act having its Head Office at F-8, MIDC, Industrial Area, Hingna Road, Nagpur 440 016 Inter alia Unit is at Steel Plant Division at Siltara Growth Centre, Bilaspur Road, Siltara Raipur (C.G.) Through : it's authorized signatory —Rajesh Kumar Rathi, General Manager Finance - Jayaswal Neco Ltd. VERSUS ^-s/^ M^. B.K. Infrastructures Pvt. Ltd., A Company incorporated under the relevant provisions of the Companies Act, Having its head office at 69, Mahalazmi Market Pandri, Raipur (C.G.) 492 009. Through : its Authorized representative and Power of Attorney Holder Mr. Joginder Singh. WRIT PETITION UNDER ARTICLE 227 OF THE CONSTITUTION OF INDIA •Kn ^ •^' fflGH COURT OF CHHATTISGARH AT BILASPUR S.B: Hon'ble Shri Prashant Kumar Mishra Writ Petition (TJ/A 227) No. 1537^2008 PETITIONER DEFENDANT RESPONDENT PLAINTIFF Jayaswals Neco limited, Raipur Versus Ms. B.K. Infrastructures Pvt Ltd., Raipur. Appearance: Shri Goutam Bhaduri, counsel for the petitioner. Shri B.P. Shanna, counsel for the respondent. WMT PETITION UHDER ARTICLE 227 OF THE CONSTITUTION OF ENDIA ORAL ORDER (30.04.2010) The matter is heard finally at the request ofleamed counsel for the parties. (2) Challenge in this petition is to the order passed by the Trial Court, whereby the defendant's right to file written statement has been closed. (3) Facts of the case, in nutshell are that, the plaintifFrespondent preferred the suit on 23/10/07 for recovery of Rs.26,20,638/- along with interest @ 12% finm 22/07/05 till actual payment. The defendant was served with the summons in the suit on 8/11/07. Thus, the period of90 days withm which the defendant was required to file written statement under Rule 1 ofOrder 8 expired on 7/02/08. i (4) Since the petitioner failed to file his written statement by the 'said date i.e. within a period of 90 days from the date of service of ^s'1 -SSKi !^ ••\ "'^ 'i 3 ^ ..y ^ summons, leamed Trial Court has closed his right to file written statement. (5) Counsel for the petitioner submits that all the documents filed and relied by the plaintiflE' in the plaint were not supplied to the defendant and for this a prayer was made before Trial Court wifhin 90 days i.e. on 20/12/07 on which the Trial Court directed the plaintiff to supply documerits, therefore it was a case where the defendant was prevented by suflGcient cause from filing written statement within the stipulated period and the Trial Court should not have closed his right offiling written statement. (6) On the other hand, leamed counsel for the respondent submits that all the documents annexed with the plaint were supplied to the defendant at the time of payment of process fees for issuance of notice to the defendant, which is reflected from the copy ofreceipt of payment of process fees, therefore the assertion of the petitioner to the contrary is not tme and that the petitioner has failed to file written statement within 90 days without any sufficient cause. He farther submits that the order passed by the Trial Court does not suffer from any infinnity and tiiis court may not exercise powers under article 227 as this is not an exceptional case. (7) I have heard leamed counsel for the parties and perused fhe documents annexed with the writ petition. Annexure P-4 is the order sheet ofthe Trial Court. It appears fhere from that the defendant, after service of summons, appeared before Trial Court for the first time on 28/11/07. When the matter was fixed on 20/12/07, a prayer was made by the defendant for supply ofdocuments on which the Trial Court directed the plaintiff to supply copies of the documents to the defendant. The matter was thereafter fixed on 4/01/08 for supply of documents and for filing written statement. (8) On 4/01/08, the matter was adjoumed to 29/01/08. On this date ^i.e. on 29/01/08, Ihe plaintiff appears to have made a statement that all the documents were annexed with the notice. On this, the Trial o Court directed the defendant to file his written statement by 8 Febroary, 2008 and that no fiirther opportunity would be granted. The defendant, on 8/02/08 moved an application under Order 7 Rule 11 and 14 read with section 151 of CPC inter-alia submitting that annexure P-5 referred in para 9 of the plaint, which is a material document, has not been supplied, therefore the plaint be dismissed, as it is incomplete. According to the defendant Ihis document was not supplied, therefore he is not in a possession to file his written statement. (9) The fact of non-supply of document was raised by the defendant as early as on 20/12/07 and on that date the plaintiff has not controverted the statement ofthe defendant The plaintiflE'did not make any such statement even on 4/01/08, but has come out with this plea only on 29/01/08, therefore the plea raised by the petitioner/defendant that all the documents were not supplied to him appears to be probable. Thus, non-filing of written statement on 8/02/08 appears to be on account of bonafide and sufScient reasons. The Trial Court having directed the plaintiff to supply documents to the defendant ought to have ensured compliance of its own order rather than closing the defendant's right to file written statement. (10) In the matters ofKailash Vs. Nanhku (2005) 4 SCC 480, and Rani Kusum Vs. Kanchan Devi (2005) 6 SCC 705 tfae Hon'ble Supreme Court has held that the provision contained in Order 8 Rule 1 of CPC is directory and in eircumstances where the defendant has been able to demonslrate bonafide and sufficient reasons for his failure to file written statement within 90 days, the Trial Court has the jurisdiction to extend the time for filing written statement. (11) This court, on the basis ofdiscussion made here in above, is of the considered opinion that in the present case the Trial Court ought to have exercised its jurisdiction for extension oftime and should have allowed the defendant one more opportunity offiling his written statement. iyfl K ^i;:^!^? ^i^ E !aa" ^ ffi (12) In view of the above, the instant petition succeeds. The impugned order passed by the leamed Trial Court is set aside. The defendantshall now file his written statement within a period ofone month. The Trial Court shall proceed with the hearing ofthe suit after filing ofthe written statement, in accordance with law and looking to ef the fact that this writ petition is pending for litde more than two years and during this period the proceedings ofthe Trial Court were stayed, Trial Court is directed to do well to dispose of the suit as early as possible and preferably within a period ofsbc months from the date of production of this order by any of the parties to suit. Petitioner/defendant shall pay cost of Rs.5000/- to Sd//- s Prashant Kumar Mishra f Judge '