Dismissed

The State of Jharkhand Represented through the Principal Secretary Rural Development Department v. Himanchal Construction Company Private Limited through Sri Bhupendra Nath Dikshit

Jharkhand HC18 Nov 2022C.M.P./200/2020

Case brief

AI extract

What is this about?

This miscellaneous civil petition challenged an order taking off a belated written statement under CPC Order VIII Rule 1. The petitioner argued defective service lacking plaint copies and unauthorized filing. The Court, viewing the plea as a dilatory tactic, dismissed the petition.

What did the court decide?

Instant petition dismissed. Civil Misc. Petition stands dismissed.

The State of Jharkhand Represented through… — Civil Procedure and Limitation | Jharkhand HC (2022)

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C. M. P. No. 200 of 2020

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IN THE HIGH COURT OF JHARKHAND AT RANCHI

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The State of Jharkhand represented through the Principal Secretary, Rural Development Department, Ranchi

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The Deputy Secretary, Rural Development Department, Ranchi

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The Deputy Commissioner, Khunti

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The Chief Engineer, Rural Development Department, Ranchi

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The Chief Engineer, Rural Development Special Zone, Ranchi

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The Superintending Engineer, Rural Development Department, Ranchi

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The Executive Engineer, Rural Works Department, Chatra

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The Executive Engineer, Rural Development Special Division, Ranchi

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… …. Petitioners

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Versus Himachal Construction Company Private Limited … …. Opp. Party

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CORAM: HON'BLE MR. JUSTICE GAUTAM KUMAR CHOUDHARY

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----For the Petitioners : Mr. Praveen Akhouri, S.C. (Mines)-I For the Opp. Party : Mr. Shresth Gautam, Advocate

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Oral Order

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06 / Dated : 18.11.2022

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Learned counsel for the petitioners is permitted to file the reply to counter affidavit filed on behalf of the opposite party.

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The instant civil misc. petition has been filed for quashing the order dated 13.11.2019 passed in the Original Suit No. 1/2018 by the Additional Judicial Commissioner-XIII-cum- Presiding Officer, Commercial Court, Ranchi whereby and whereunder, the written statement, filed on behalf of the defendants-petitioners, was taken off from the record for being filed beyond the stipulated time of 120 days under .

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The petitioners are the defendants and the suit has been filed for the following reliefs:

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“A money decree for recovery of Rs. 1,21,09,19,381 (Rupees One Hundred Twenty One Crore Nine Lakh Nineteen Thousand Three Hundred and Eighty One only) with 12% interest thereon pendente lite and future till realization of decretal amount which also includes compensation for loss/damage caused to the plaintiff.

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After institution of said original suit, notices were issued to the defendants vide order dated 10.08.2018. In pursuance of the notice, all the defendants /petitioners appeared before the court below on 28.09.2018 and the written statement was filed on 10.01.2019 on behalf of the defendant.

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On 1.4.2019 the plaintiff filed the petition for not admitting the written statement as it was filed beyond the stipulated period of 120 days under Order VIII Rule 1 of CPC as amended by Commercial Courts Act, 2015. This petition has been allowed against which present petition has been preferred.

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It is submitted by learned counsel for the petitioners that the notices were served on defendant nos.1, 5 and 7 on 05.09.2018 and on defendant nos.4, 6 and 8 on 06.09.2018. There was delay in filing the written statement and, therefore, in view of the ratio of the Hon’ble Apex Court the written statement was not permitted to be taken on record by the impugned order.

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It is submitted that there was no due service of notice as the mandate of Order V Rule 1 of C.P.C. of annexing the plaint along with annexures along with the service of notice was not followed. Consequently the petitioners were not fully equipped to file written statement. In this regard, reliance has been placed by the Hon’ble Apex Court in 2017 SCC Online Delhi 12368 (Sunil Alagh Vs. Shivraj Puri & Anr.) wherein it has been held that the service of notice in the suit cannot be said to be complete unless complete paper book has been supplied.

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With regard to the point raised in paragraph 27 of the counter affidavit filed by the plaintiff-opposite party, wherein it has been stated that petitioner no. 7 had executed Vakalatnama in favour of private lawyer, in order to go around the mandatory provisions of filing of written statement in 120 days and allow the written statement to be taken on record, it is submitted that Petitioner no. 7 appeared without due notice with plaint and after getting knowledge about the case later on through proper Government Pleader his appearance was made and thereafter written statement was filed.

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It is submitted by learned counsel for the plaintiff-opposite party that there is no denial at any stage that the written statement was filed beyond the stipulated statutory period of 120 days. The order-sheet of the Court below will reflect prompt issuance of notices and on 28.09.2018, all the defendants had appeared through Government Pleader except defendant no. 7 who had appeared through private lawyer. Defendant no. 7 filed written statement on 28.01.2020 without any authorization on the part of others or counter signature of other defendants which is mandated under Order VI Rule 14 of C.P.C. The plaintiff filed the petition before the Court below to take off the written statement which was contested by the petitioners but at no point of time this plea was taken that the notices were served without necessary plaint or document. Under the

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circumstance, the belated plea of incomplete notices being served is only to circumvent the bar of filing the written statement within the stipulated time. 10. As far as the plea of notices being not served on defendant no. 3 is concerned, despite absence of any service report to that effect the declaration of service by the Court below, the track report has been filed (Annexure-1 at page25 of the counter affidavit) wherein it says that it was served on 05.09.2018 which has also been reckoned by the Court below. 11. Lastly it is submitted that once the Vakalatnama has been filed by the private lawyer on behalf defendant no. 7, the written statement should have been filed by him and not by the Government Pleader under Order III Rule 1 and 4 of C.P.C.

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There are incontrovertible sequence of events supported by irrefutable evidence that notices were served on the petitioners on 5-6^th September 2018. The statutory period of 120 days from 6^th September 2018 expired on 4^th of January 2019. The written statement has been filed on 10^th January 2019. The plea that the notices were issued without any copy of the plaint or the annexures therewith has been raised for the first time before this Court and therefore cannot be accepted. The second plea that Defendant no. 7 had to appear before the Court below through a private lawyer as he was not aware of the nature of matter in which the notices were issued also lacks conviction, as all other officers had appeared through Govt. Pleader. The ignorance under the circumstance appears to be constructed to get away from the rigors of the amended provisions of CPC in the light of Commercial Courts Act. This Court appreciates the fact that high stakes are involved in the present case, but its precisely to inject and infuse vigor to such proceedings before the Commercial Courts the amendments have been brought in the statute.

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Instant petition lacks merit. Civil Miscellanies Petition stands dismissed.

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(Gautam Kumar Choudhary, J . )

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AKT

The State of Jharkhand Represented through the Principal Secretary Rural Development Department v. Himanchal Construction Company Private Limited through Sri Bhupendra Nath Dikshit

Case brief

What is this about?

What did the court decide?

The State of Jharkhand Represented through the Principal Secretary Rural Development Department v. Himanchal Construction Company Private Limited through Sri Bhupendra Nath Dikshit

Case brief

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What did the court decide?

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