abs IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION NOTICE OF MOTION NO. 1303 OF 2008 IN SUIT NO. 855 OF 2008 Saga Department Stores Ltd. .. Plaintiff V/s Falak Home Developers Pvt. Ltd. .. Defendant Mr.Rahul Narichania with Mr.A.N. Amin i/b B. Amin &Co. for the plaintiff. Mr.Z. Dada i/b S. Mohomedbhai & Co. for the defendant. CORAM : D.G. KARNIK, J. DATE : 13TH JUNE 2008 P.C. P.C. P.C. : 1. Heard. 2. By this motion, the defendant seeks condonation of delay in filing of the written statement. 3. The plaintiff has filed the suit against the defendant for specific performance of an agreement of sale dated 1st April 1999 and for a declaration that the purported termination of the agreement made by the - 2 - defendant was invalid. The value of the suit property is Rs.29,28,21,820/-. 4. The writ of summons was served on the defendant in April 2001. Learned counsel for the defendant states that the vakalatnama was filed on behalf of the defendant in August 2001. However, the same was misplaced from the court record and hence fresh vakalatnama has been filed. Learned counsel for the plaintiff, however, disputes that any vakalatnama was filed previously and/or that was misplaced. Be that as it may, the written statement was not filed within time. 5. According to the defendant, inspection of documents was not given by the plaintiff. The defendant had therefore taken out Chamber Summons No.11 of 2007 for inspection. The inspection of the very same documents was given by the plaintiff in another proceedings pending between the parties and therefore the chamber summons was withdrawn on 6th June 2006. Learned counsel for the defendant further states that the parties are locked in several litigations and the written statement could not be filed as inspection was not given and thereafter it was noticed that vakalatnama was misplaced and the written statement remained to be filed due to oversight. - 3 - 6. Learned counsel for the plaintiff strongly objects for grant of leave to file the written statement and submits that the statements made in the affidavit in support of the motion ex facie are inconsistent and false. If the defendant themselves withdrew the chamber summons on 6th June 2006 because the inspection was complete, though in other proceedings, the defendant ought to have filed the written statement immediately thereafter. The defendant omitted to do so for several months thereafter. Learned counsel for the plaintiff strongly relied upon a decision of the Supreme Court in Kailash v. Nanhku - (2005) 4 SCC 480. He invited my attention to the observations made in para 42 of the said decision which says that the provisions of Order 8 Rule 1 of the Code of Civil Procedure have ordinarily to be honoured. It may be noted that in Iridium India Telecom Limited v. - Motorola Inc. - AIR 2005 SC 514, the Supreme Court has held that the provisions of Order 8 Rule 1 of the Code of Civil Procedure do not apply to the suits filed on the original side of the Charter High Court. The observations made in para 42 of the decision in Kailash v. Nanhku (supra) therefore do not strictly apply to this case. In my view, though the provisions of Order 8 Rule 1 of the Code of Civil Procedure do not strictly apply, the principle contained therein, viz. expeditious filing of the written statement so as to expedite hearing of the suit must be broadly applied and - 4 - the written statement must be filed quickly and without unreasonable delay. In case of long delays, punitive costs can be imposed for the dual purpose; viz. (i) to deter the defendant from seeking any extension of time just for the asking, and (ii) to compensate the plaintiff for the delay and inconvenience caused to him. 7. Taking into consideration the fact that the suit involves very high stakes of more than Rs.29.28 crores and in order to give reasonable opportunity to the defendant, though undoubtedly it has caused long delay in filing the written statement, solely in the interest of justice, in my view, the written statement can be allowed to be filed subject to payment of punitive and compensatory costs. 8. In the circumstances, the notice of motion is allowed in terms of prayer (a) and the defendant is permitted to file written statement within 2 weeks hereof subject to payment of punitive and compensatory costs of Rs.50,000/- as a condition precedent. 9. At the request of the plaintiff, operation of this order is stayed for 2 weeks. (D.G. KARNIK, J.)