IN IN IN THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORDINARY ORDINARY ORIGINAL CIVIL JURISDICTION ORIGINAL CIVIL JURISDICTION ORIGINAL CIVIL JURISDICTION NOTICE NOTICE NOTICE OF MOTION NO.3851 OF 200 OF MOTION NO.3851 OF 200 OF MOTION NO.3851 OF 2008 IN SUIT SUIT SUIT NO.3014 OF 2005 NO.3014 OF 2005 NO.3014 OF 2005 Methal Homes Pvt.Ltd. & Anr. ... Plaintifs. Vs. Ranganath B. Somani & Ors. ... Defendants. Mr. Shaikh Yusuf Ali i/b. Mohamedbhai & Co. for the plaintiffs. Ms. Sonali S.Jain i/b. Dave & Co. for defendant No.1. Mr. Rizvi Naserali i/b. Thakore Jariwala & Associates for defendant No.2. CORAM CORAM CORAM : A.A. Sayed, J. : A.A. Sayed, J. : A.A. Sayed, J. DATE DATE DATE : February 25, 2009. : February 25, 2009. : February 25, 2009. P.C. P.C. P.C. 1. This notice of motion has been taken out by the defendant No.2 to set aside order dated 12th February, 2008 passed by the learned Prothonotary and Senior Master setting the matter for ex parte hearing and to condone the delay and take the written statement on file. By that order, since no written statement was filed, the suit was transferred to the list of undefended suits. 2. The plaintiffs have filed suit against the defendants for specific performance of the MOU dated 11th October,1994 between the plaintiffs and the defendant Nos. 1 to 3, which is kept in escrow with defendant NO.4 and for damages in addition to and/or in lieu of the specific performance of the MOU and for other reliefs. 3. According to the plaintiffs, by virtue of the said MOU, the defendants are liable and bound to grant and hand over certain controlling block of shares (51%) of the company in liquidation to the plaintiffs together with the right of first refusal for the grant of development rights in respect of the property of the company in liquidation situated at Senapati Bapat Marg, Mumbai. 4. It is the case of the defendant No.2 that he came to know that the present suit has been set for ex parte hearing after his advocate was served with a copy of Company Application (Lodging) No. 1077/08 on 8.10.2008, whereupon inspection of record was taken to ascertain facts which led the suit to be set for ex parte hearing. According to the defendant NO.2, his advocate had appeared before the learned Prothonotry and Senior Master on 29th January, 2008 and sought time to file written statement in the matter. The matter was accordingly adjourned to 12th February, 2008 for filing written statement. It is averred in the affidavit in support of the motion that the clerk of his advocate failed to post the adjourned date in the diary for the next date of hearing and therefore diary did not indicate that the matter was fixed on 12th February 2008 and the matter was left unattended. In these circumstances, none appeared on behalf of the defendant NO.2 and the suit came to be transferred to the list of undefended suits on 12th February, 2008. The learned Counsel for the defendant NO.2 stated that it was due to inadvertence on the part of the clerk of the advocate that the written statement could not be filed and there was no deliberate attempt on the part of the defendant NO. 2 to delay filing of the written statement. It is further submitted that the written statement is ready and that the defendant No.2 has good case on merits and therefore, in the interest of justice the motion be allowed. 5. The learned Counsel for the Defendant No.2 placed reliance on the following judgments :- 1] Shaikh Salim Haji Abdul Khayumsab Vs. Kumar and ors. reported in (2006) 1 SCC 46; 2] Unreported Judgment in Notice of Motion No. 1042 of 2007 in Suit no. 3853 of 2002 in case of Tarla N.Morjiaria & ors. Vs. Bipin Hirala Shah and anr. 3] Vishal Ramchandra Patil vs. Bhagwat Waman Gaikwad& ors. reported in 1996(2) MH.L.J.1064 4] Collector Land Anantnag & Anr. Vs. Katiji & ors. reported in (1987) 2 SCC 107 5] Iridium India Telecom Ltd. Vs. Motorola Inc., reported in 2005(1) Mh.L.JU. 678. 6. Plaintiff No.2 has filed his reply resisting the motion. It is averred in the reply that the writ of summons was served on defendant NO.2 as far back as on 6.2.2006 and that the affidavit of service is also filed. It is further averred that the suit was adjourned on several occasions and the extended period of 90 days to file the written statement expired on 5th May, 2006. It is further stated that on 29th January, 2008, the learned Prothonotary and Senior Master had granted last and final chance to the defendant No.2 to file written statement. It is averred that the defendant No.2 has not filed written statement since 20 months and therefore by the order dated 12th February, 2006, the learned Prothonotary and Senior Master, transferred the suit to the list of undefended suits. The learned Counsel for the plaintiff submitted that since the written statement was not filed within 30 days or the extended period of 90 days and since no sufficient cause has been made out for condoning the delay in filing the written statement, the motion is not tenable and the same be dismissed with costs. 7. I have heard the learned Counsel for the parties and perused the material on record. 8. It is to be noted that the provisions of order 8 rule 1, which stipulate the time limit for filing of written statment, are directory and not mandatory and the said provision does not take away the power of the Court to take written statement on record though filed beyond 30 days. This was so held by the Apex Court in the case of SHAIKH SALIM HAJI ABDUL KHAYUMSAB (Supra) SHAIKH SALIM HAJI ABDUL KHAYUMSAB (Supra) SHAIKH SALIM HAJI ABDUL KHAYUMSAB (Supra) relied upon by the Defendant No. 2. Paragraphs 9,10 and 11 of the said Judgment are also are relevant and are reproduced hereunder: "9. The text of Order 8 Rule 1, as it stands now, reads as under : "1. Written Statement- The defendant shall, within thirty days from the date of service of summons on him, present a written statement of his defence: Provided that where the defendant fails to file the written 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." Order 8 Rule 1 after the amendment casts an obligation on the defendant to file the written statement within 30 days from the date of service of summons on him and within the extended time falling within 90 days. The provision does not deal with the power of the court and also does not specifically take away the power of the court to take the written statement on record though filed beyond the time as provided for. Further, the nature of the provision contained in Order 8 Rule 1 is procedural. it is not a part of the substantive law. Substituted Order 8 Rule 1 intends to curb the mischief of unscrupulous defendants adopting dilatory tactics, delaying the disposal of cases, causing inconvenience to the plaintiffs and the petitioners approaching the court for quick relief and also the serious inconvenience of the court faced with frequent prayers for adjournments. The object is to expedite the hearing and not to scuttle the same. While justice delayed may amount to justice denied, justice hurried may in some cases amount to justice buried." "10. All the rules of procedure are the handmaid of justice. The language employed by the draftsman of processual law may be liberal or stringent, but the fact remains that the object of prescribing the procedure is to advance the cause of justice. In an adversarial system, no party should ordinarily be denied the opportunity of participating in the process of justice dispensation. Unless compelled by express and specific language of the statute, the provisions of CPC or any other procedural enactment ought not be construed in a manner which would leave the court helpless to meet extraordinary situations in the ends of justice." "11. The morality of justice at the hands of law troubles a Judge’s conscience and points an angry interrogation at the law reformer." 9. Useful reference may also be made to the case of KAILASH KAILASH KAILASH VS. VS. VS. NANKHU reported in 2005(4) SCC 480, NANKHU reported in 2005(4) SCC 480, NANKHU reported in 2005(4) SCC 480, wherein it was held by the Apex Court in paragraph No. 42 to 44 as under :- "42. Ordinarily, the time schedule prescribed by Order 8 Rule 1 has to be honoured. The defendant should be vigilant. No sooner the writ of summons is served on him he should take steps for drafting his defence and filing the written statement on the appointed date of hearing without waiting for the arrival of the date appointed in the summons for his appearance in the court. The extension of time sought for by the defendant from the court whether within 30 days or 90 days as the case may be, should not be granted just as a matter of routine and merely for the asking, more so, when the period of 90 days has expired. The extension can be only by way of an exception and for reasons assigned by the defendant and also recorded in writing by the court to its satisfaction. It must be spelled out that a departure from the time schedule prescribed by Order 8 Rule 1 of the Code was being allowed to be made because the circumstances were exceptional, occasioned by reasons beyond the control of the defendant and such extension was required in the interest of justice, and grave injustice would be occasioned if the time was not extended. 43. A prayer seeking time beyond 90 days for filing the written statement ought to be made in writing. In its judicial discretion exercised on well settled parameters, the court may indeed put the defendants on terms including imposition of compensatory costs and may also insists on an affidavit, medical certificate or other documentary evidence (depending on the facts and circumstances of a case) being annexed with the application seeking extension of time so as to convince the court that the prayer was founded on grounds which so exist. 44. The extension of time shall be only by way of exception and for reasons to be recorded in writing, however brief they may be, by the court. in no case, shall the defendant be permitted to seek extension of time when the court is satisfied that it is a case of laxity or gross negligence on the part of the defendant or his counsel. The court may impose costs for dual purpose: (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." 10. In the case in hand, though the reasons for not filing the written statement within the statutory period of 30 days and/or the extended period of 90 days are not entirely satisfactory, at the same time the case put forth by Defendant NO.2 cannot be ruled out altogether that because of the inadvertence of the clerk, the matter was not posted in the diary and hence, the same remained unattended. As stated in the affidavit in support, the matter was being attended to before the Ld. Prothonotary and Senior Master up to 29th January 2008 and time was being sought for filing the written statement and it was only thereafter that the matter was lost sight of for the reasons mentioned. I am satisfied that in the peculiar facts of the case it can be said that sufficient cause and exceptional circumstances, has been made out by the defendant No.2 to condone the delay in filing the written statement beyond prescribed period of 90 days and the defendant no. 2 ought to be given an opportunity to defend the suit. In my view considering the principles laid down in the above judgments, interest of justice would be served by accepting the written statement of defendant No.2, subject however, to payment of costs. 11. For the reasons stated above, the notice of motion is allowed in terms of prayer clause (a) and (b) subject to costs of Rs. 10,000/- to be paid by the defendant No. 2 to the plaintiffs. The written statement which is declared on 15.10.2008 to be filed by Defendant No.2 within a period of four weeks. Payment of costs would condition precedent. . Notice of motion is disposed of. [A.A.Sayed, [A.A.Sayed, [A.A.Sayed, J.] J.] J.]