* IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of Reserve: October 12, 2009
Date of Order: October 21, 2009
+IA Nos. 4945/2009 & IA No.9957/2009 in CS(OS)1218/2008
% 21.10.2009
ICICI Lombard General Insurance Co. Ltd. ...Plaintiff
Through: Mr. J.K. Chaudhry, Advocate
Versus
Continental Transport Organization
Pvt. Ltd. ...Defendant
Through: Mr. Javed Ahmed, Advocate
JUSTICE SHIV NARAYAN DHINGRA
1. Whether reporters of local papers may be allowed to see the judgment?
2. To be referred to the reporter or not?
3. Whether judgment should be reported in Digest?
ORDER
1. By this order I shall dispose of above two applications, one being IA
NO.4945 of 2009 moved by plaintiff under Order 8 Rule 1 CPC for taking off
the written statement of defendant and other being IA No.9957 of 2009 filed
by defendant under Order 8 Rule 1 read with Section 151 for condonation of
delay in filing written statement.
2. As per record, defendant in this case was served of summons of the
suit on 2nd August, 2008. The matter was listed before the Court on 26 th
August, 2008. On that day, counsel for defendant Mr. Javed Ahmed put
appearance and told the Court that he shall be filing vakalatnama during the
course of the day. Defendant was given time to file the written statement
CS(OS) 1218/2008 CICI Lombard General Insurance Co. Ltd. v. Continental Transport Org.P.Ltd.
Page 1 Of 4
within the statutory period. The next date was fixed as 7th November 2008.
The written statement as per Order VIII of Civil Procedure Code was required
to be filed within 30 days of receipts of summons i.e. the written statement
should have been filed by 1st September 2008. However, written statement
was not filed by 1st September 2008 and it was admittedly filed on 6th
November 2008. Order 8 Rule 1 of CPC categorically provides that defendant
shall file written statement within 30 days of service of summons. Proviso to
this rule makes it clear that in case defendant fails to file written statement
within 30 days, he can be allowed to file written statement on such other date
as the Court may order for the reasons to be recorded in writing, but the
written statement shall not be allowed to be filed later than 90 days of service
of summons. Ninety day in this case expired on 30 th October 2008. With the
permission of the Court for justifiable grounds, written statement could have
been filed within 90 days. In this case, admittedly defendant filed the written
statement on 6th November 2008 i.e. 6 days beyond 90 days and that too
without an accompanying application. The application for condonation of
delay was filed by defendant when plaintiff filed an application that written
statement filed by defendant be taken off the record as it was filed beyond
the statutory period and the period extendable by the Court. The only reason
given by the defendant in the application under Order 8 Rule 1 CPC is that the
written statement was delayed only by four days. The defendant was to sign
the written statement on 1st November 2008, however, the authorized
representative of defendant could not reach Delhi on 1st November 2008 and
therefore written statement could not be filed on 1st November 2008. The
condonation of delay of four days in filing written statement was sought on
the ground that delay was not deliberate and it was there because the
authorized person was not there to sign the written statement. Obviously, no
CS(OS) 1218/2008 CICI Lombard General Insurance Co. Ltd. v. Continental Transport Org.P.Ltd.
Page 2 Of 4
reason has been given at all for condonation of delay in filing the written
statement beyond 30 days or beyond 90 days. The reasons given by
defendant in the application are no reasons in the eyes of law. It is settled law
that the written statement has to be filed within a period of 30 days. It is
obligatory on the defendant to file written statement within 30 days of receipt
of summons. Beyond 30 days, the written statement can be filed only with
the prior permission of the Court. The period of 30 days can be extended by
another 60 days if the Court considers that there were justifiable reasons
which prevented defendant from filing written statement within the period of
30 days. Beyond 90 days, the Court can allow filing of written statement only
under exceptional circumstances. Since defendant has failed to bring on
record any justifiable reasons much less exceptional circumstances, I consider
that the written statement cannot be taken on record and has to be taken off
the record.
3. In the result, the application filed by plaintiff for taking the written
statement off the record is allowed and the application filed by defendant for
condonation of delay is dismissed.
4. With above order, both the applications stand disposed of.
CS(OS)1218/2008
1. Since there is no written statement of defendant on record, the plaintiff
shall lead evidence before the Joint Registrar. Affidavits of witnesses of
plaintiff be filed within four weeks from today. Joint Registrar shall fix dates
of cross examination of plaintiff’s witnesses. It is made clear that since there
is no written statement of defendant on record, the plaintiff’s witnesses can
CS(OS) 1218/2008 CICI Lombard General Insurance Co. Ltd. v. Continental Transport Org.P.Ltd.
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be examined only on the limited aspects available to the defendant arising
from the plaint of the plaintiff and no defence can be put to the witnesses.
2. List before the Joint Registrar on 16th December 2009, for fixing dates
of cross examination of witnesses.
October 21, 2009 SHIV NARAYAN DHINGRA J. rd
CS(OS) 1218/2008 CICI Lombard General Insurance Co. Ltd. v. Continental Transport Org.P.Ltd.
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