1 WP No.3949/10 mpt IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO.3949 of 2010 Capt.Yogeshchandra Deodatta Bhide(Retd) ... Petitioner versus Mr.Sriniwas Vinayak Joshi & ors. ... Respondents ... Mr. Mandar Limaye for the petitioner. Mr.S.M. Gorwadkar for the respondents CORAM : D.G. KARNIK, J DATED : 16th June 2011 P.C. 1. This petition is directed against the order dated 20 February 2010 passed by the trial court rejecting the application of the petitioner (defendant no.1) for permission to file written statement by condoning the delay of 78 days beyond the statutory period of 90 days provided under Order 8 Rule 1 of the Code of Civil Procedure. 2. It is necessary to mention a few facts. The petitioner is the original defendant no.1. Respondent no.1 is the original plaintiff. Respondent no.2 is the original defendant no.2 and respondent no.3 is original defendant no.3. For the sake of convenience, the parties are referred with reference to their status in the suit. 2 WP No.3949/10 3. Plaintiff and defendant nos.1 and 2 were the directors of defendant no.3 company which had borrowed money from Shamrao Vitthal Co-op. Bank Ltd. (for short “the bank”). The plaintiff and defendant nos.1 and 2 stood as guarantors for re-payment of the loan borrowed by defendant no.3. Defendant no.3 committed a default in payment and therefore a suit was filed by the bank against defendant no.3 as the principal guarantor and plaintiff and defendant nos.1 and 2 as the guarantors. In the said suit, plaintiff was required to pay sum of Rs.16,00,000/- as a guarantor. No money was paid by defendant nos.1 and 2. Plaintiff therefore filed a suit for contribution against defendant nos.1 and 2 and joined defendant no.3 as a party. Despite time being granted by the court to the defendant no.1 for filing the written statement, he did not file the written statement within the statutory maximum of 90 days and for a period of 78 days thereafter. At the end of 168 days, he made an application for permission to file written statement by setting aside “the no WS order” and condoning the delay in filing of the written statement. That application was rejected. 4. Two grounds were urged in the application for condonation of a delay. Firstly, it was contended that the bank was a necessary party and suit without joining the bank as a party was not maintainable. Secondly it was submitted that certain documents from the Registrar of Companies (ROC) was required to be obtained from preparing the written statement and since some time was required for obtaining the documents from ROC there was a delay. The first ground that bank was a necessary party could have been 3 WP No.3949/10 raised by the defendant no.1 in the written statement and no documents were necessary for that purpose. Therefore, that contention cannot be a ground for not filing of the written statement in time. As regards the second ground, the application does not mention which documents from the office of ROC were necessary for preparation of the written statement, when they were applied and when the copies were received. The application is completely vague in this regard. At the hearing of the petition also, when asked, the learned counsel for the petitioner was unable to state what documents were necessary for drafting of the written statement, when they were applied and when they were received. The trial court was right in rejecting the application because it was based only on the vague allegations that some documents were necessary. 5. In Kailash Vs. Nanhku, 2005(4) SCC 480, the Supreme Court while holding that provisions under Order 8 Rule 1 are directory has held that the decision should not be misunderstood as nullifying the entire force and impact – the entire life and vigour of the provision. Extension of time should not be granted as a matter of course, or by way of an indulgence. The decision of the trial has followed the principle laid down in the decision of Kailash Vs. Nanhku (supra). There is no merit in the writ petition which is hereby rejected summarily. (D.G.KARNIK, J)