Punjab and Haryana High Court: In a revision petition filed under Article 227 of the Constitution challenging the order dated 07-03-2024, whereby, an application to set aside of the order dated 26-05-2023 was partly allowed, Harkesh Manuja, J., stated that a cumulative analysis of all the circumstances showed that the petitioner while defending its case, acted in irresponsible and negligent manner and if any prejudiced was being caused to him, it was because of his own act and conduct and for that he was bound to bear consequences. Additionally, suit in the present case was filed by the respondent in the beginning of 2023 and even in August 2024, the case had not come to a closure and still dragging on its feet; while the respondent was still waiting for the outcome of this case to get its dues. Thus, in these circumstances, respondent could not be made to suffer for petitioner’s fault.
Therefore, the Court stated that no interference was warranted in the order dated 26-05-2023 passed by the Commercial Court, and accordingly dismissed the present petition.
Background
The respondent-plaintiff filed a recovery suit of Rs. 1,65,05,278 against the petitioner. Upon notice, the petitioner-defendant appeared on 13-03-2023 through an Advocate and filed memo of appearance but no written statement was filed. However, on 24-04-2023, the petitioner’s counsel, apart from filing his Vakalatnama, also filed an application under Order 7 Rule 11 of Civil Procedure Code, 1908 (‘CPC’), seeking rejection of the plaint. Thereafter, the petitioner’s counsel did not appear and thus, the petitioner proceeded ex-parte vide order dated 26-05-2023.
Subsequently, on 13-10-2023, the petitioner filed an application to set aside the ex-parte proceedings which was dismissed by the Court vide the order dated 07-03-2024 and allowed the petitioner to join the proceedings from the stage the same were pending at the time of filing of application.
Analysis, Law, and Decision
The Court stated that the perusal of Order 9 Rule 7 of CPC made it apparent that in a case where defendant had been declared ex parte, and he “appears at or before” on the date of next hearing and able to provide “good cause for his previous non-appearance”, then he might be heard as if he had appeared on the day fixed for his appearance. The Court noted that in the present case, the petitioner’s primary grievance was that if an ex-parte order was not set aside and he was not allowed to join the proceeding as on 26-05-2023, it would cause serious prejudice to its right, in absence of any written statement being filed.
The Court stated that a joint perusal of the Order 5 Rule 1(1), Order 8 Rule 1 and Order 8 Rule 10 of the CPC would show that ordinarily a written statement was to be filed within a period of thirty days, though a further grace period of ninety days might be granted by the Court for reasons to be recorded in writing. However, beyond 120 days from the date of service of summons, the plaintiff should forfeit the right to file the written statement and the Court should not allow the written statement to be taken on record.
The Court stated that no exceptional circumstances was present in the present case. The petitioner’s counsel first appeared on 13-03-2023 and in view of that, the period of 120 days expired on 11-07-2023, but till then no written statement was filed by the petitioner. Thus, on account of absence, the petitioner was declared ex parte and even the application to set aside this order was made after expiry of five months.
The Court stated that in this application, no sufficient reason was mentioned by the petitioner for delay and apparently blunt excuse was provided that the representative of the petitioner fell ill and no instructions could be issued to the Advocate. Apart from the illness, no reason at all was provided to explain that what took them around 5 months to file this application. Thus, the Court stated that the explanation provided by the petitioner was not to be treated, sufficient at all.
The Court stated that a cumulative analysis of all the circumstances showed that the petitioner while defending its case, acted in irresponsible and negligent manner and if any prejudiced was being caused to him, it was because of his own act and conduct and for that he was bound to bear consequences. Additionally, suit in the present case was filed by the respondent in the beginning of 2023 and even in August 2024, the case had not come to a closure and still dragging on its feet; while the respondent was still waiting for the outcome of this case to get its dues. Thus, in these circumstances, respondent could not be made to suffer for petitioner’s fault.
Therefore, the Court stated that no interference was warranted in the order dated 26-05-2023 passed by the Commercial Court, and accordingly dismissed the present petition.
[Score Rating Agency and Constituting (P) Ltd. v. OMG Network India (P) Ltd., 2024 SCC OnLine P&H 10470, decided on 16-09-2024]
Advocates who appeared in this case:
For the Petitioner: Prateek Sodhi, Advocate and Jasmine, Advocate;
For the Respondent: Mayank Arora, Advocate for Abhinav Agrawal, Advocate.
Buy Constitution of India HERE
