Court Condones 776-Day Delay in Filing Written Statement, Imposes Costs for Defendants Failure to Timely Respond.
14 November 2024
Civil Suits >> Civil & Consumer Law
In a recent ruling of Vijay Krishanji Sawant and Others vs Francis John Quinny & Others, the court has allowed the defendants to file their written statement, despite a delay of 776 days, under exceptional circumstances. The case revolves around an Interim Application filed by Defendants No. 1 and 2, seeking the condonation of their delay in filing a written statement after an order was passed on December 15, 2023, transferring the suit to the list of undefended suits.
Background of the Case:
The defendants, represented by counsel Mr. Mogre, explained that the delay was primarily due to their unawareness of the suit until March 16, 2024, when the amended plaint was served upon them. According to the defendants, they were not informed of the original suit until after the amended plaint was received. They also claimed that the writ of summons had been served at an address that was no longer in use, as the premises were locked for several years.
The defendants further explained that the period of delay was exacerbated by the COVID-19 pandemic. Applicant No. 1, in particular, being a senior citizen, had taken extra precautions to avoid any risk of contracting the virus. As a result, documents, parcels, and couriers were not handled for several months during the pandemic. This delay in receiving and managing documents contributed to the inability to engage legal representation, further delaying the filing of their written statement.
The defendants also cited the suo motu orders of the Supreme Court, which had excluded the limitation period until May 30, 2022, due to the COVID-19 pandemic. Despite these extensions, the defendants claimed that they were unable to take the necessary steps to engage legal counsel, leading to a delay in the filing of the written statement.
Plaintiffs' Opposition:
On the other hand, the plaintiffs, represented by counsel Mr. Bobde, opposed the application. The plaintiffs argued that the writ of summons had been duly served on the defendants’ clerical staff on August 19, 2020, and an affidavit of service had been filed. Mr. Bobde highlighted that despite receiving the interim application for amending the plaint in July 2023, the defendants failed to provide an explanation for the 800-day delay in filing their written statement. He further emphasized that no reasonable cause had been provided for the delay between March 2024 and July 2024, when the interim application was filed.
Court's Observations:
The court noted that the plaintiffs had lodged the plaint on December 10, 2019, and the writ of summons was served on August 19, 2020. However, due to the COVID-19 pandemic, the court accepted the defendants' explanation for the delay between March 2020 and May 2022. The court recognized the extraordinary circumstances posed by the pandemic and the preventive measures followed by the senior defendant. The period from March 2020 to May 2022 was deemed to be an exceptional case for delay, in line with the Supreme Court's suo motu order.
Nevertheless, the court found that the defendants' explanation for the delay from July 2023 to March 2024 was insufficient. The delay between the receipt of the interim application and the amended plaint in March 2024 was not convincingly explained, and the court noted that reasonable time should have been taken to engage legal counsel.
Legal Principles Applied:
The court referred to Order VIII Rule 1 of the Code of Civil Procedure (CPC), which mandates that a written statement should be filed within 30 days of receiving a summons. If this period is not adhered to, a further 60-day extension can be granted, but the total delay should not exceed 90 days. The court also cited the landmark case of Kailash v. Nankhu (2005), where the Supreme Court held that the 90-day rule is directory and not mandatory, and the court can condone delay in exceptional circumstances.
Additionally, the court considered the decision in Atcom Technologies Ltd. v. Y.A. Chunawala & Co. (2018), which emphasized that the onus on the defendant to explain the delay is high, and that the court has discretion to condone the delay only in exceptional situations.
Decision and Cost Imposition:
While the court recognized the extraordinary circumstances of the defendants, it also noted that the delay in filing the written statement was significant and could have been avoided with better diligence. As a result, the court decided to condone the delay, but subject to the payment of a cost of Rs. 1,00,000, which was to be paid to the High Court Non-Gazetted Ministerial Staff Association, Mumbai, within three weeks.
The court further set aside the order passed by the Prothonotary & Senior Master on December 15, 2023, transferring the suit to the list of undefended suits. The delay was condoned, and the registry was directed to accept the written statement filed by the defendants.
Conclusion:
In the final ruling, the court emphasized that while it is essential to follow procedural timelines, justice must be served on the merits of each case. The defendants were given an opportunity to defend the suit, as the court recognized the exceptional circumstances that led to the delay. The imposition of costs served as a reminder of the importance of timely action in legal matters, while the court balanced the need for justice with the necessary legal discipline.