Date of judgement:
17th December 2021
Bench:
Justice Asha Menon
Parties:
Appellant – HT Media Limited and Anr
Respondent – Brainlink International, INC and Anr
Subject
Taking note of the situation due to Covid 19, the Supreme Court of India had extended the limitation period for filing in Courts. Here, the High Court of Delhi passed an order stating that in cases where defendant wasn’t prevented from filing written statements, the extension of limitation will not be applicable.
Legal Provisions
- Order XXXIX Rule 3 of CPC- court to give notice before granting injunction
- Order XXXIX Rule 4 CPC – injunction order may be discharged
- Order XII – A CPC- Notice may be given by any party to suit
Overview
- The defendants contended that they had not been provided with summons in the present suit. They only received an intimation through email regarding the suit filed and the order passed by the Court on 28th April 2020 in compliance of requirements of order XXXIX Rule 3 of CPC.
- At that time, the pandemic was at its peak and the Supreme Court had also passed an order where the limitation period was extended. The defendants pleaded that they had filed a reply to the application of interim bail which was filed by the plaintiff and it was under a bona fide intention that the defendants believed that it was not necessary to file a written statement of defence until they were provided with summons of the suit. In the instant case, the summons were never provided and hence there was no delay as the defendants appeared on basis of information which was furnished in compliance of order XXXIX Rule 3 CPC.
- The learned counsel relied upon 2 judgments. Firstly, the judgment given by the Supreme Court in cognizance for extension of limitation -IN RE: COGNIZANCE FOR EXTENSION OF LIMITATION(2020) - to show that the limitation period has been extended for all the purposes. Secondly the judgment of division bench in the case of Rohit Sharma v A.M Market place, 2021, for stating that the written statement should be taken on record and delay be condoned.
- Hence,the defendants pleaded that the Court shallcondone the delay in filing the written statement.
- The appellants opposed this by saying that the defendants filed the statement 144 days after the ad-interim order was passed on 28th April 2020. They had not given any valid reason for the delay in submission though they appeared in the Court on various days. It was stated that the reasons stated by the defendants did not have any force.
- They had not been prevented from participating in the proceedings. The suit was filed during the pandemic which shows that urgent matters were heard by the Court. An application was also filed by the defendants under order XXXIX Rule 4 CPC.
- It was submitted that the defendant could notplace reliance on the judgment passed by the Supreme Court as they knew about the pendency and wanted to be provided with summons before filing the written statement which is untenable.
- Other points were also stated which showed that the pandemic was not the reason for delay in filling.Further it was stated that the present application was filed after the plaintiff filed their application under order XII – A CPC.
- They also relied upon judgment of Sagufa Ahmed v Upper Assam pollywood products pvt ltd and ors (2021), Love chauhan v Ajay kumar Kathuria 2021 and Bharat Kalra v Raj Kishan Chabra 2021 for showing that the order passed by the Supreme Court is not automatically available to all.
- Further they relied on judgment in Siraj Ahmed siddique v prem nath kapoor, Nath Agrawal v Nath, Sunil Poddar v union bank of India and Flight Centre travels pvt ltd v flight centre limited, for stating that once the defendants participated in proceedings, the defendants waived off the right to be served with the summons.
- Hence, it was submitted to close the written statement and to dismiss the application.
Issue
Whether the defendants had sufficient time and sufficient notice of the date of hearing to appear and answer the claim of the plaintiffs?
Judgment Analysis
- The Court held that the conditions due to pandemic did not affect the defendants and hence the order of the Supreme Court in cognizance for extension of limitation could not be applied in the instant case.
- The defendants were aware of the case and were also represented by the counsel but still chose not to file written statement.
- The delay in filing of written statement could not be accepted and the statement which was written could not be taken on record as the delay had not been condoned.
- There were two questions: firstly, whether the defendant had the notice of the date on which the suit was being heard and secondly,whether he had enough time to appear and answer the plaintiff’s claim.
- Once the above two conditions were fulfilled, decree of ex parte could not be set aside even if it was proved that the summons were not provided regularly.
- Since both the conditions were satisfied, the present appeal was dismissed.
Conclusion
In the instant case, it was submitted by the defendants that the reason for late filing of written statement was due to pandemic and they relied on the judgment given by the Supreme Court but it was proved that all these were material facts.
They were being represented by a counsel still they chose not to file the written statement.The delayed submission of the written statement could not be accepted, and the written statement could not be put on record, because the delay had not been excused.
