Desh Raj v Balkishan (D) Through proposed LR Ms. Rohini, Civil Appeal No. 433 of 2020 arising out of Special Leave Petition (Civil) No. 6217 of 2019 – 20.01.2020
The Special Leave Petition is filed before the bench comprising of the CJI. S.A. Bobde, Justice B.R. Gavai and Justice Surya Kant, after the appellant’s Revision Petition, was dismissed by the Delhi High Court.
The respondent filed the case against the appellant in the civil court for the breach of contract by the appellant regarding the sale of ancestral property. The summon was served against the appellant but the appellant’s counsel failed to file the written statement even after the extension of time being given by the court. So the civil court closed the appellant’s opportunity of filing the written statement and struck off his defense. After approaching the Delhi High Court by filing the revision petition, the court by relying upon the order of Oku tech Pvt. Ltd. v Sangeet Agarwal and ors summarily dismissed the petition, based on the fact that there was no discretion with courts to extend the time for filing the written statement after service of summons.
Here the primary contention of the appellant made before the bench is that the High Court’s reliance on Oku tech (supra) was erroneous and the Order VIII Rule 1 of CPC as amended by the Commercial Courts Act, 2015 was applicable to commercial disputes only. But the present matter is non-commercial and the un-amended Order VIII Rule 1 of CPC would be applicable.
Based on the contention made by the appellant, the question arises here is
Whether the amended or un-amended Order VIII Rule 1 of CPC would be applicable to the present case?Whether the court has discretion to extend the time limit for filing the written statement regarding the non-commercial disputes in case of delay in filing the written statement?Whether the appellant has made out a case of exercising discretionary jurisdiction?Whether the appellant can be given the opportunity to file the written statement?
The Commercial Courts Act, 2015 through section 16 has amended the CPC in its application to commercial disputes.The court hence got the clear view that non-commercial disputes fall within the ambit of the un-amended provision of CPC.
The court lacks discretion in prescribing the time limit for filing the written statement in case of delay only for commercial disputes. The bench decides the second issue by referring the judgment pronounced in the case, SCG Contracts India Pvt. ltd v KS Chamankar Infrastructure Pvt ltd which upheld the judgment of Oku Tech(Supra) which was referred by the Delhi High Court undoubtedly rendered the context of the judgment is for commercial dispute as per the amended provisions of CPC.
By coming to the third issue, the bench observed that the present dispute does not fall within the parameters specified under section 2(c) of commercial Courts Act, 2015 and in particular sub-clause (vii) as the immovable property here is not of a nature which is ” used exclusively in trade or commerce”.
Hence the appellant is correct in contending that the high court overlooked the nature of the dispute and mistakenly applied the ratio of a case rendered in light of a modified version of the CPC, which would only be applicable to commercial disputes.
While looking into the final issue, it is clear that the reason for not filing the written statement is due to the non-appearance of the appellant’s counsel before the civil court during hearing dates. After taking the circumstance of the case into consideration, and without laying down the discretion being exercised hereinafter as a precedent, the bench directs that the written statement filed by the appellant be taken on record with a copy to counsel for the respondent within one week from the order dated.
Thus the bench set aside the orders of the court and the appeal is disposed of in the above terms by granting the Special Leave Petition.
View/ Download the judgment: Desh Raj v Balkishan (D) Through proposed LR Ms. Rohini,
– Prithisha S
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