MADANSINGH BHARARA Vs. MANDEEP AHLUWALIA PAHWA

JUDGEMENT

(1.) DEFENDANT Nos.3 and 4 have taken out this Notice of Motion for acceptance of their written statement despite a delay in filing it of 1232 days. The plaintiff has no objection. Defendant Nos.1, 2 and 5 have objection to allow the written statement of defendant Nos.3 and 4 to be taken on record. Defendant Nos.3 and 4 were served in 2008. The suit has yet not reached hearing. Ad interim relief came to be rejected on 8th October, 2008. The matter appeared before the Prothonotary and Senior Master of this Court when from time to time the suit was adjourned for filing written statement. The matter remains at that. The suit appeared on board of the Court for hearing and final disposal since 10th February, 2011. It has been adjourned simplicitor, by consent of parties, and for settlement also from time to time. It has been adjourned by the Court from time to time upon directions passed. The Notice of Motion taken out by the plaintiff was heard in August, 2014 when defendant Nos.3 and 4 were represented. The Notice of Motion came to be dismissed on 25th August, 2014 with costs of Rs.50,000/ to be paid to defendant Nos.1, 2, defendant Nos.3 and 4 and defendant Nos.5, 6, 7 and 8. Thereafter this Notice of Motion has been taken out and has been adjourned from time to time until it has reached hearing today.

(2.) IT is the case of defendant Nos.3 and 4 that defendant No.3 who is Managing Director of defendant No.4 has always been ill. That case has been sought to be refuted by defendant Nos.1, 2 and 5 by showing that annual returns as also several cheques have been signed by defendant No.3 on behalf defendant No.4 right from 2006 and hence he was not so ill as to merit not filing this written statement when he carried on business. They would contend that the averments relating to the illness of defendant No.3 are vague and should not be countenanced. It is also argued that each day's delay is not explained though the delay is gross. It is also argued that the delay in filing the written statement of defendant No.4 is not separately explained as another deponent has signed and verified written statement on behalf of defendant No.4. It is further argued that the verification clause in the written statement of defendant Nos.3 and 4 is not proper because, though the board resolution authorising director to file written statement of defendant No.4 is produced, the Power of Attorney is not produced. It is also contended that the verification clause should have been signed not only by the director signing on behalf of defendant No.4 but also by defendant No.3 which is not done. These aspects may be seen under Order 6 Rule 15 of the CPC after the written statement is accepted on record and the trial proceeds upon the defence contained therein.

(3.) DEFENDANT Nos.1 and 2 have relied upon the judgment in the case of R N Jadi and Brothers Vs. Subhashchandra, 2007 6 SCC 420 in which delay has been condoned and the parameters of condonation of delay in filing the written statement are set out in paragraphs 14 and 15 which are relied upon by counsel on behalf of defendant Nos.3 and 4. The observations of the Supreme Court in the said paragraphs would show that there would be exception to the principle contained in Order 8 Rule 1 of the CPC because the procedural prescriptions are the handmaid of justice and are held to be not a tyrant but a servant, not an obstruction but an aid to justice, and not a resistant in the administration of justice. These are further held to be directory, though couched in a negative language implying a mandatory character not without exceptions. Hence in the facts and circumstances of a case delay in filing written statement may be condoned. Similar in the case of Mahesh Narain Maheshwari Vs. M/s. J S D Properties of High Court of Allahabad in Civil Writ Petition No. 54790 of 2007 wherein it is observed that Court must prevent victories by technical knockouts.