1. wp 1309-11.doc RMA IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO. 1309 OF 2011 Shriram EPC Ltd., ] having its registered office at 442-D, ] Second Floor, Sector 17, Vashi Plaza, ] Vashi, Navi Mumbai 400 703 and its ] Corporate Office at 304/305, Anna Salai, ] 6th Floor, Guna Building, Teynampet, ] Chennai - 600 018. ] Petitioner Versus 1. Maharashtra Jeevan Pradhikaran ] 4th Floor, Indian Express Building, ] Nariman Point, Madame Cama Road, ] Mumbai - 400 021. ] 2. Executive Engineer, ] Maharashtra Jeevan Pradhikaran, ] Holaam Colony, Sadhu Vaswani Road, ] Nashik 422 002. ] 3. ICICI Banking Corporation Ltd., ] 104, Prakash Presidium, ] Nungambakam High Road, ] Chennai 600 034. ] 4. Federal Bank Ltd., ] 25, Nelson Manickam Road, ] Rajaram Mehta Nagar, ] 1 1. wp 1309-11.doc Chennai 600 029. ] Respondents Mr. S.S. Kulkarni for the Petitioner Ms. Neeta M. Karnik for Respondent Nos. 1 and 2 CORAM : D.G. KARNIK, J. DATE : 14th JUNE, 2011. ORAL JUDGMENT: 1. Rule, made returnable forthwith. 2. Ms. Karnik appears for respondent no. 1 and waives service of the Rule. Respondent nos. 2 to 4 are the formal parties, hence service of Rule on them is dispensed with. 3. Heard. 4. A short question that arises for consideration in this Writ Petition is: Whether Order VIII, Rule 1 of the Code of Civil Procedure (for short, 'the Code') applies to the written statement which the plaintiff is entitled / required to file to the counter-claim made by the defendant under Order VIII, Rule 6A of the Code? 5. The issue arises in the following circumstances:- Petitioner is the original plaintiff. He filed a suit bearing Special 2 1. wp 1309-11.doc Civil Suit No. 332 of 2000 in the Court of Civil Judge, Senior Division, Nashik against the respondents claiming specific performance of the obligations under the agreement dated 9th April 1999 and in the alternative, a money decree in the sum of Rs. 12 Crores. Respondent No. 1 who is the defendant in the trial court filed its written statement on 8th September 2005 contesting the suit and making a counter-claim which was valued at Rs. 78,17,790/-. The petitioner did not file a written statement to the counter-claim and consequently on 5th December 2007 the trial Court passed an order to the effect that the plaintiff (petitioner herein) had not filed a written statement to the counter-claim and the counter-claim would proceed without a written statement of the plaintiff. Three years thereafter i.e on 13th October 2010, the petitioner applied to the Court for setting aside the ‘No W.S.’ order and for permission to file a written statement. By an order dated 3rd December 2010, the trial Court rejected the application. That order is impugned in the Writ Petition. 6. Order VIII of the Code deals with the "Written statement, set-off to the suit and counter-claim". Rule 1 of Order VIII provides that the defendant shall, within thirty days from the date of service of summons on him, present a written statement of his defence. Proviso to Rule 1 empowers the Court, for reasons to be recorded in writing, to extend the time to file a written 3 1. wp 1309-11.doc statement beyond the period of thirty days but not later than ninety days form the date of service of summons. Rule 6-A of Order VIII provides that a defendant in a suit may, in addition to his right of pleading a set-off under Rule 6, set up , by way of a counter-claim against the claim of the plaintiff, any right or claim in respect of a cause of action accruing to him against the plaintiff. Sub-rule 2 of Rule 6-A provides that such a counter-claim shall have the same effect as a cross-suit. Sub- rule 3 of Rule 6-A provides that the plaintiff shall have a liberty to file a written statement and answer the counter-claim of the defendant within such period as may be fixed by the Court. Strongly relying upon the provisions of sub-rule 3 of Rule 6-A by Mr. Kulkarni, learned counsel for the petitioner submitted that sub-rule 3 confers a power on the Court to fix a time for filing of the written statement to the counter-claim. He submitted that the power of the Court to fix time under sub-rule 3 was not limited by the time limit prescribed by the Rule 1 of Order VIII and the Court could fix any time even beyond 30/90 days provided under Rule 1 of Order VIII for filing of a written statement. In my view, the submission has no merit for the reasons mentioned below. 7. Sub-rule (2) of Rule 6-A of order VIII of the Code specifically provides that the counter-claim shall have the same effect as a cross-suit so as to enable the Court to pronounce a final 4 1. wp 1309-11.doc judgment in the same suit, both on the original claim and on the counter-claim. The counter-claim set up by the defendant in his written statement thus, has an effect of a counter-suit. Rule 6-G of Order VIII of the Code of Civil Procedure provides that the rules relating to a written statement by a defendant shall apply to a written statement filed in answer to a counter- claim. By Rule 6-G, the provisions relating to the written statement are specifically made applicable to the counter-claim set up by the defendant in a suit. Consequently, Rule 1 which lays down the time limit for filing a written statement would apply to the written statement filed or to be filed by the original plaintiff to the counter-claim set up by the original defendant. Sub-rule (3) of Rule 6-A which confers the power on the Court to fix the time limit is subject to the time limit prescribed under Rule 1. The Court is required to fix a time not exceeding 30 days for the plaintiff to file a written statement to the counter- claim of the defendant. The Court can, of course, for the reasons to be recorded in writing, extend the time limit to file the written statement to the counter-claim but not exceeding ninety days as provided under proviso to sub-rule 1. 8. In Kailash Vs. Nanhku reported, (2005) 4 S.C.C. 480, the Supreme Court has held that sub-rule 1 of Order VIII is directory and not mandatory but at the same time, the Supreme Court has cautioned that it does not mean that the 5 1. wp 1309-11.doc intention of legislature expressed in Rule 1 of Order VIII should be negated by granting an extension of time without good reasons. The provision cannot be interpreted in a manner in which the very life and blood of Rule 1 would be lost. For good reasons made out by the plaintiff in a written application supported by an affidavit, the Court may be in a position to accept the written statement filed by the plaintiff even beyond the period of ninety days but that would be subject to the principles laid down by the Supreme Court in Kailash Vs Nanhku (supra). On plain reading of Rules 6-A and 6-G of Order VIII, it is clear that the provisions of Rule 1 of Order VIII would apply even to the written statement filed by the plaintiff in response to the counter-claim made by the defendant in his written statement. The time to be fixed by the Court under sub-rule 3 of Rule 6-A cannot exceed 30 days or 90 days, as the case may be, in the ordinary circumstances. 9. It is true that the suit was filed before the amendment of the Code and substitution of Rule 1 of Order VIII by the amendment Act of 2002 and the amended provision of Rule 1 would not apply to the written statement to be filed by the defendant. But the counter claim was filed by the defendant after the substitution of Rule 1 of Order VIII and the counter claim has the effect of a separate suit (See Rule 64 of Order VIII). In any event, it was not submitted by Mr. Kulkarni that the amended Rule 1 was not applicable to the counter claim filed after the 6 1. wp 1309-11.doc amendment as the suit was filed before the amendment and therefore it is not necessary to consider that aspect. 10.In the present case, written statement to the counter-claim was filed by the respondent on 6th September 2005. The written statement to the counterclaim made by the defendant in its written statement, therefore, ought to have been filed by the plaintiff on or before 6th October 2005. The Court could extend the time to file written statement to the counter-claim by the plaintiff by a further period of sixty days (i.e. ninety days in all) from the date of service / delivery of the written statement by the defendant to the plaintiff i.e on or upto 4th or 5th December 2005. In the present case, the Court not only waited upto 5th December 2005 but waited for two more years i.e 5th December 2007 when it ultimately passed an order that the suit would proceed without the written statement of the petitioner (plaintiff) to the counter-claim set up by the respondent no. 1. Even thereafter, the petitioner did not make any application for filing of the written statement by setting aside that order. It waited for three more years i.e till 3rd October 2010 when he made an application for setting aside the 'No W.S.' order. The only ground that was urged before the trial Court for setting aside the order was that the original plaintiff company had merged with Shriram EPC Ltd. and the new management was not aware of the suit. This contention 7 1. wp 1309-11.doc which was raised in the application for setting aside the order of 'No W.S.' was clearly erroneous inasmuch the petitioner itself amended the plaint on 6th December, 2007 by substituting its name in place of the name of the original plaintiff. Therefore, at least on 6th December, 2007, the present petitioner had the knowledge of the present suit and the counter-claim made therein by the respondents. The contention of the petitioner that it was not aware of the suit and the counter claim hence, there was delay in filing of the written statement to the counter-claim , has no merit and is required to be rejected. 11.Mr. Kulkarni submitted that the written statement to the counter-claim may be allowed subject to costs and thereby no prejudice would be caused to the respondents. When the Legislature has mandated that the written statement is to be filed within the period of thirty days or ninety days as the case may be, in my view, condoning the delay of five years by awarding costs would defeat the very purpose of the amendment effected by the legislature to Order VIII, Rule 1. Hence, the submission cannot be accepted. 12.No ground sufficient for setting aside the 'No W.S.'order and accepting the written statement after lapse of five years, is made out. In the circumstances, the trial Court committed no 8 1. wp 1309-11.doc error in rejecting the application for permission to file the written statement. Writ petition, is therefore rejected. Rule is discharged with no order as to costs. 13.Mr. Kulkarni, the learned counsel for the petitioner submits that his client wishes to challenge the order before the superior forum and therefore, interim protection by way of stay of the suit previously granted by this Court vide order dated 10th February, 2011 may be extended for some time. Request is granted. The order dated 10th February, 2011 will remain in force for a period of eight weeks from today. [ D.G. KARNIK, J ] 9