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ICICI Lombard General Insurance Company Limited v/s Continental Transport Organization Private Limited

    IA Nos. 4945/2009 and IA No. 9957/2009 In CS(OS)1218/2008

    Decided On, 21 October 2009

    At, High Court of Delhi

    By, THE HONOURABLE JUSTICE S. N. DHINGRA

    J. K. Chaudhry, Javed Ahmed



Judgment Text



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 Code of Civil Procedure, 1908 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 26th 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 within the statutory period. The next date was fixed as 7th November 2008. The written statement as per Order VIII of Code of Civil Procedure, 1908 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 Code of Civil Procedure, 1908 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 30th 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 Code of Civil Procedure, 1908 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 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 fr

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om 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 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.
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