I.As. 10163/2021 (of plaintiffs u/O VIII R-10 CPC to proceed ex-parte against the defendants), 13112/2021 (of defendants u/S 5 of the Limitation Act, 1963 for condonation of delay in filing the written statement) & 13113/2021 (of defendants u/S 5 of the Limitation Act, 1963 for condonation of delay in re-filing I.A.13112/2021)
1. By I.A. No.10163/2021, the plaintiffs No.1&3 have prayed that the defendants be proceeded ex-parte and their right to file the written statement be closed, in view of the fact that the defendants have not adhered to the strict time schedule prescribed for commercial suits. The defendants have, on the other hand filed I.A. Nos.13112/2021 & 13113/2021 for condonation of delay in filing the written statement and re-filing the condonation application respectively.
2. Before proceeding further, it may be noted that this suit has been filed by the children of late Sh. H.K. Sarin and Smt. Vera Sarin against the Directorate of Estates, Ministry of Labour & Employment, Government of India and the Competent Authority under Smugglers and Foreign Exchange Manipulators (Forfeiture of Property) Act, 1976 (‘SAFEMA’ for short). The suit has been filed for recovery of damages for loss of market rent, mesne profits and interest. The property being Flat No.1108, Ansal Bhawan, Kasturba Gandhi Marg, New Delhi-110001 (‘Suit Property’ for short) which had been purchased by the plaintiffs through their mother acting as their attorney, on 6th March, 1972 through Articles of Agreement executed with Ansal & Saigal Properties Private Limited, was leased out to the Government of India through defendant No.1 from time to time since 1st September, 1976, the last extension being vide Lease Deed dated 25th November, 1990. The said lease was determined on completion of its tenure of five years on 25th November, 1995. Thereafter the tenancy was treated as a month to month tenancy at a monthly rent of Rs.20,500/-. The defendant No.1 allotted the suit property as office accommodation to the defendant No.2 which remained in possession and use of the property till they vacated the premises and removed their articles therefrom on 2nd July, 2020.
3. The plaintiffs accepted the keys to the property on 22nd January, 2020 without prejudice to their rights and claims arising out of the continued possession of the property. However, it was only pursuant to this Court’s directions issued in CM No.3099/2020 in W.P.(C) No.10395/2019 dated 12th June, 2020, that the defendants removed their articles from the suit property on 2nd July, 2020. The order dated 16th July, 2020 recorded that the defendant No.1 shall pay the arrears from 1st May, 1999 to 2nd July, 2020 on the basis of the last rent paid i.e. Rs.20,500/- which amounted to Rs.52,08,323/- and which stands paid.
4. By means of this suit, the plaintiffs have sought market rent and mesne profits at the prevailing market rent for the period from 1st May, 1999 to 2nd July, 2020, claiming that they had been deprived of the use and enjoyment of the suit property despite recall of the order of preventive detention under the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974(‘COFEPOSA’ for short), rendering the order of forfeiture under SAFEMA invalid and illegal. This has been quantified at Rs.2,20,70,954/- towards damages. Rs.9,89,077/- towards maintenance charges and Rs.43,53,912/- towards arrears of property tax, have also been sought with interest @ 12% per annum.
5. Summons were directed to be issued on 11th January, 2021 when the learned counsel for the defendants No.1&2 was present on advance notice. He accepted the summons in the suit on behalf of the defendants No.1&2 and this Court directed that the written statement be filed within thirty days from 11th January, 2021 with affidavit of admission/denial of the documents filed by the plaintiffs, failing which the written statement was not to be taken on record.
6. It was the contention of Mr. Sidhant Kumar, learned counsel for the plaintiffs that no written statement has been filed. Mr. Vikrant N. Goyal, learned counsel for the defendants on the other hand submitted that the written statement had been filed which had been returned under objection and an application for condonation of delay had also been filed which was also returned under objection on 24th August, 2021. I.A. No.13112/2021 has been filed under Section 5 of the Limitation Act, 1963 for condonation of delay in filing the written statement and I.A. No.13113/2021 for condonation of delay in re-filing the application for condonation of delay.
7. The learned counsel for the defendants No.1&2 has submitted that the Supreme Court vide order dated 8th March, 2021 in SMW(C) No.3/2020 titled In Re Cognizance for Extension of Limitation had directed that where limitation would have expired during the period 15th March, 2020 till 14th March, 2021, notwithstanding the actual balance period of limitation remaining, all persons were to have a limitation period of 90 days with effect from 15th March, 2021 or longer period, if that was available. Therefore, this Court should grant the benefit of extension of limitation period to the defendants. It was further submitted that time had been consumed as three Departments had to check their records from the year 1976 which caused delay in filing the sworn affidavit of admission and denial. Relying on the judgment of the Supreme Court in State (NCT of Delhi) Vs. Ahmed Jan (2008) 14 SCC 583, the learned counsel submitted that the procedural red-tapism in Government Departments was responsible for the slow pace of decision making, added to which was the disruption caused by the Covid-19 pandemic and the State’s interest could not be held hostage by defaulting individuals. Hence, in I.A. No.13112/2021, the defendants have sought condonation of delay varying from 20 to 80 days. In the application for condonation of delay in re-filing the application for condonation of delay, it is further submitted that personal reasons of the counsel had caused the delay in re-filing.
8. It may be also useful at this stage, to refer to the reply filed on behalf of the defendants to the application being I.A. No.10163/2021 under Order VIII Rule 10 of the Code of Civil Procedure, 1908 (‘CPC’ in short). In this reply, it has been submitted that the abnormal situation that occurred in the organization due to the pandemic resulted in the failure to file the reply within time, apart from submitting that the delay was on account of need to collect the required inputs from three Departments. Time was also consumed in obtaining compliance reports from the organizations, verification of records and opinion of the Ministry of Law and Justice. The office capacity was limited to 30% strength, the Deputy Director (Office & Market) residing at Ghaziabad, Uttar Pradesh could not come to Delhi due to the sealing of the border and finally the Covid-19 pandemic had resulted in the Department losing some of its officials.
9. The learned counsel for the defendants has further explained that due to the transfer of the Director of Estate (HoD) and Deputy Director (Office and Market) in March-April, 2021, there was some disruption in processing the file for taking decisions. The new Deputy Director joined in May, 2021 and after personal interest was taken, he filed the affidavit of admission/denial on behalf of the defendants with some delay. It was further submitted that the delay in filing was not intentional and the delay be condoned. It is also submitted that in any case, the Government of India had paid Rs.52,08,323/- for remaining in occupation of the suit property from 1st May, 1999 to 2nd July, 2020.
10. The learned counsel for the plaintiffs on the other hand has pointed out that the judgment of the Supreme Court in SMW(C) No.3/2020 titled In Re Cognizance for Extension of Limitation could not enure to the benefit of the defendants, submitting that the said order was applicable only for institution of a suit or other legal proceedings before the various courts and was not applicable to proceedings post such institution. It was submitted that the period from 14th March, 2021 till further orders, were to stand excluded in computing the periods described under Section 23(4) and 29A of the Arbitration and Conciliation Act, 1996, Section 12A of the Commercial Courts Act, 2015 and Provisos (b) and (c) of Section 138 of the Negotiable Instruments Act, 1881 and was therefore not applicable to the provisions of the Commercial Courts Act, 2015 prescribing periods of limitation for various steps post institution.
11. It was further submitted that the Supreme Court in SCG Contracts (India) Private Limited Vs. K.S. Chamankar Infrastructure Private Limited (2019) 12 SCC 210 had held that the court had no power to extend the period for filing of a written statement beyond 120 days, as Order VIII Rule 1 of the CPC was mandatory. Reliance has been placed on the judgment of this Court in Bharat Kalra Vs. Raj Kishan Chabra, 2021 SCC OnLine Del 3976 to submit that there had to be sound explanation for the delay and only a vigilant litigant could be protected. Reliance has also been placed on the judgment dated 13th February, 2020 of a Coordinate Bench of this court in O.M.P.(COMM) No.507/2019 titled M/s Steel Stripes Wheels Ltd. Vs. M/s Tata AIG General Insurance Co. Ltd. to submit that improper filing could not extend the period of limitation.
12. It was submitted by learned counsel that as per the copies forwarded to him by the learned counsel for the defendants through email, the written statement was dated 9th April, 2021 but as it was without an affidavit of admission and denial, the filing was non est. When the second email was sent to the learned counsel for the plaintiffs, once again the written statement was not accompanied with the affidavit. Thus, according to the learned counsel, no written statement has been filed till date. Moreover, the application for condonation of delay in filing the written statement was also not filed along with the written statement. Reliance has also been placed on the judgment of this Court in Ok Play India Pvt. Ltd. Vs. A.P. Distributors, 2021 SCC OnLine Del 4043 to contend that the application for condonation had to be filed along with the written statement and in the absence of such an application, the delay could not be condoned. Thus, he has prayed that the plaintiffs’ application be allowed and the defence be struck off, closing the defendants’ right to file the written statement.
13. It is to state the obvious that a litigant has to be vigilant. A litigant who is careless or negligent cannot seek to benefit from his inaction and the court would certainly seek reasonable explanation for delay in taking steps within the period of limitation, as prescribed. It is to be also seen that it is not the length of the delay that is determinative of the favourable exercise of discretion, but the existence of just reasons preventing the defendants from taking action.
14. The plaintiffs have placed on the record various emails that had been sent to their counsel by the learned counsel for the defendants. According to the learned counsel for the plaintiffs, these emails were accompanied with the written statement. From the email (Document No.6), it is noticed that a written statement was sent on 6th May, 2021 as attachment. That written statement had been signed and dated as 9th April, 2021 by Sh. Rajiv Ranjan and his affidavit had also been signed on the said date. On 14th July, 2021 what was forwarded to the learned counsel for the plaintiffs was an application under Section 5 of the Limitation Act, 1963 for condonation of delay in filing the written statement as also the written statement. The written statement is the same that was sent earlier, dated 9th April, 2021. It is to be noticed that the application under Section 5 of the Limitation Act, 1963 as placed by the learned counsel for the plaintiffs is also dated 9th April, 2021 signed by Sh. Rajiv Ranjan, Deputy Director seeking condonation of delay of 20/80 days in filing the written statement.
15. The entire argument of the learned counsel for the plaintiffs was that this application was not found on the court record, as was reflected in the orders of the learned Joint Registrar and therefore no application along with the written statement had been filed as was required under law. Moreover, the affidavit of admission/denial was also not filed. Till the filing of that document in August, 2021, it could not be said that the written statement had been duly filed.
16. It is the considered view of this Court that the documents of the plaintiffs support the contention of the learned counsel for the defendants that the written statement had been filed on 6th May, 2021 along with the condonation of delay application but they were returned under objections. The written statement placed on the court record, notes on it that the written statement was received on 6th May, 2021 and was “re-filed” on 27th July, 2021. The said filing was along with the affidavit of admission/denial of documents. That affidavit has been filed by Sh. Kiran Pal, Deputy Director and is dated 13th July, 2021. Thus, it is clear that when the written statement was initially filed, it was in fact accompanied with an application for condonation of delay. The written statement and application were returned under objection. The application for condonation then filed with the date 10th August, 2021 was returned under objection only on 24th August, 2021 and was re-filed on 4th October, 2021. While it appears that repeatedly the written statement and applications were being returned under objections, it is also not as if the defendants were careless or negligent. To that extent the facts differ from those in Bharat Kalra (supra) and Ok Play India Pvt. Ltd. (supra).
17. The explanation offered for the delay in filing the affidavit is that the Deputy Director being a resident of Ghaziabad could not travel to Delhi and further the working at the office had been impacted as the attendance had been pared down to 30% of the strength. This explanation is based on facts, in view of the actual situation prevailing between April and June, 2021 in Delhi. It is not a figment of imagination conjured up to overcome limitation. In fact three officials also lost their lives to Covid-19. There also
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appears to have been a change in the officer manning the post of Deputy Director as is borne out from the signatures on the written statement being that of Sh. Rajiv Ranjan whereas the affidavit of admission/denial has been signed by Sh. Kiran Pal. 18. Despite the challenges posed by the exceptional circumstances prevailing at the time, it cannot be overlooked that the defendants actually made an attempt to file the written statement in the month of April/May, 2021, as it appears that despite the problems, the defendants had prepared their written statement way back on 9th April, 2021. But, on account of non-availability of officials to file a sworn statement before the court, the same was filed subsequently on 27th July, 2021. The explanation appears to be bona fide. 19. For the reasons stated therein, the application being I.A. No.13113/2021 for condonation of delay in re-filing is allowed. 20. In view of the explanation offered which appears to be reasonable and cogent, I.A. No.13112/2021 is allowed and the delay in filing the written statement along with the affidavit of admission/denial also stands condoned. The written statement be taken on record along with the affidavit of admission/denial. 21. Resultantly, I.A. No.10163/2021 of the plaintiffs under Order VIII Rule 10 CPC for proceeding ex-parte against the defendants is dismissed. 22. Replication along with affidavit of admission/denial be filed within thirty days. 23. List on 10th February, 2022 for framing of issues. 24. The order be uploaded on the website forthwith.