Decided on December 20,2007

R.K. DUTTA Respondents


- (1.) APPELLANT has preferred this Regular First Appeal against the order dated 9. 12. 2006 passed by the Mr. D. C. Anand, Additional District Judge, delhi by which the suit filed by the respondent was decreed under the provisions of Order 8 R. 10 CPC on the failure of the appellant to file the written statement. Learned judge proceeded on the ground that no written statement can be placed on record after 90 days of service of summons on the defendant. In the present case defendant/appellant was served on 6. 5. 2006. Permission of the court was taken while filing the written statement on 25. 8. 2006 which is the mandate of law in case the written statement is to be taken on record on record beyond the period of 90 days.
(2.) AS a short question is involved, with the consent of parties the appeal is taken up for disposal. Brief Facts of the case are: (i) Appellant had quoted for the supply of a High Speed Power Press line of 150 ton capacity along with a Grippen Feeder and combined Decoiler cum straightener, a price of Rs. 8,40,000/ -. The supply was to be made within 8-9 weeks from the date of the order. Advance payment of Rs. 1,50,000/- was made by the respondent. In between, there was increase in the price of steel and revised quotation with in increase in the price of machine by 25% i. e. , to Rs. 10,00,000/- (Rs. Ten Lacs) was submitted. Respondent accepted the revised price and remitted further advance. A total sum of Rs. 2,50,000/- (Rs. Two Lac Fifty thousand) was paid by the respondent to the appellant as advance. Respondent also remitted a sum of Rs. 1,12,000/- for purchase of 30 HP Eddy Current Drive motor instead of Seimens electric Motor. (ii) Appellant on account of financial difficulties being faced required further advance to complete the manufacture and deliver the machine. Respondent thereupon paid a further sum of rs. 2,00,000/- vide Pay Order No. 800138 dated 4. 10. 2004. Appellant had assured that the machine would be ready for trial and testing by 15. 10. 2004 and finally delivery would be given by 20. 12. 2004. A penalty of Rs. 15,000/- per day was agreed for delay in delivery. This penalty was to be increased to Rs. 20,000/- if the delivery was delayed beyond 25. 10. 2004. (iii) Appellant could not deliver the machine until 18. 2. 2005. A further sum of Rs. 2,50,000/- and another sum of Rs. 1,00,000/-was paid by the respondent to the appellant vide Pay orders Nos. 812561 dated 29. 1. 2005 and 813038 dated 17. 2. 2005 respectively. The machine was delivered on 18. 2. 2005. (iv) Respondent has filed a suit, claiming damages of Rs. 15 lacs together with pendente lite and future interest @ 18% per annum. The plaintiff averred in the plaint that it was entitled to claim Rs. 30,57,000/- out of which Rs. 23,75,000/- is claimed on account of the penalty and the rest on account of non-supply of the items, as averred in para 30 of the plaint. However, plaintiff confined his claimed to Rs. 15,00,000/- (Rs. Fifteen Lacs) together with pendente lite and future interest @ 18% per annum from the date of filing of the suit.
(3.) WE may note some of the relevant dates. The appellant was duly served with summons on 6. 5. 2006 and appeared in Court on 18. 5. 2006. The case was adjourned to 21. 7. 2006 since the presiding officer was on leave. On 21. 7. 2006, the appellant sought time to file written statement. The case was adjourned to 25. 8. 2006. Appellant was granted time to file written statement within the 90 day period from the date of service i. e. upto 5. 8. 2006. The next date given for admission/denial of documents was 25. 8. 2006. The appellant tendered the written statement on the date when he appeared on 25. 8. 2006 but without any application seeking condonation of delay in filing of the written statement.;

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