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SUPREME COURT OF INDIA
Rohinton Fali Nariman, Vineet Saran, JJ.
M/S. SCG CONTRACTS INDIA PVT. LTD. – Appellant(s)
Versus
K.S. CHAMANKAR INFRASTRUCTURE PVT. LTD. AND OTHERS – Respondent(s)
Civil Appeal No. 1638 of 2019 (Arising out of Special Leave Petition (C) No. 103 of 2019)
Decided on : 12-02-2019
Facts of Case:
Money Suit was filed in which date no written statement had been filed. Meanwhile, Order 7, Rule 11 application was filed. This application was taken up and rejected by first impugned order. After rejecting Order 7, Rule 11 application, Single Judge recorded that none appeared for plaintiff in spite of advance copy stated to have been given.
Findings of Court:
Clearly, therefore, 05.12.2017 order which applies in face of amendments made to Civil Procedure Code cannot be sustained. When we come to second order dated 24.09.2019, only reason for this order is that 05.12.2017 has attained finality.
Result – Appeal allowed.
The legal document emphasizes that statutory provisions regarding the filing of written statements in civil suits are clear, mandatory, and cannot be circumvented through inherent powers or judicial discretion. Specifically, the law sets a strict time limit of 30 days for filing a written statement, with a maximum grace period of 90 days, totaling 120 days from the date of service of summons. Beyond this period, the defendant forfeits the right to file a written statement, and the court has no authority to extend this deadline further (!) (!) .
It is crucial to recognize that the provisions are designed to be mandatory, and their non-compliance leads to the forfeiture of the defendant’s right to submit a written statement, which must then be excluded from the record (!) (!) . Attempts to justify extensions or to ignore these statutory timelines by invoking inherent powers are not permissible, as such actions would undermine the statutory framework and public policy underlying these provisions (!) (!) .
Furthermore, even if a court erroneously allows a belated written statement or overlooks the statutory prohibition, such decisions are not sustainable and can be challenged on the grounds that they violate mandatory procedural rules. The law aims to ensure timely prosecution and defense, and any deviation from these prescribed timelines cannot be justified on the basis of judicial discretion or perceived fairness (!) (!) .
In conclusion, the strict adherence to the prescribed timelines for filing written statements is mandatory, and any order permitting a delay beyond the statutory period is invalid. The appropriate course is to exclude the belatedly filed written statement from the record, reinforcing the importance of procedural compliance and the non-derogable nature of these statutory provisions.
JUDGMENT
R.F. Nariman, J.
Leave granted.
2. In the present case, a Suit was filed on 10.03.2017 claiming a sum of Rs. 6,94,63,114/-. The Defendant No.1 was served with the summons in the Suit on 14.07.2017. 120 days from this date takes us to 11.11.2017, by which date no written statement had been filed. Meanwhile, however, an Order 7, Rule 11 application was filed. This application was taken up and rejected by the first impugned order dated 05.12.2017. After rejecting the Order 7, Rule 11 application, the learned Single Judge recorded that none appeared for the plaintiff inspite of advance copy stated to have been given. He also records that the counsel for the defendant No.1 now states that seven days time be granted to file a written statement. Para 14 of the aforesaid order then reads as follows:
"14. Subject to the defendant No.1 paying costs of Rs. 25,000/- to the counsel for the plaintiff on or before 15th December, 2017, the time for filing the written statement is extended till 15th December, 2017. If either of the conditions is not complied with, the right of the defendant No.1 to file written statement shall stand closed without any further order."
3. In obedience to this order, a written statement was filed on 15.12.2017 by the defendant No.1. By a belated application dated 06.08.2018, it was averred that the recent changes that have been made in the Code of Civil Procedure were not adhered to as a result of which the written statement which had yet to be taken on record could not so to be taken on record in view of the fact that 120 days had elapsed from the date of service of summons of this Suit.
4. On 24.09.2018, another learned Single Judge took up this application and held that the 05.12.2017 order being final, even though the provisions of law may provide otherwise, the defendant No.1's written statement which was filed on 15.12.2017 should be taken on record. The petitioner has filed a Special Leave Petition against the aforesaid two orders.
5. Learned counsel appearing on behalf of the petitioner has taken us through the recent amendments made in the Code of Civil Procedure and argued, laying great emphasis on State of Bihar and Others v. Bihar Rajya Bhumi Vikas Bank Samiti, (2018) 9 SCC 472 as well as Canara Bank v. N.G. Subbaraya Setty and Anr. AIR 2018 SC 3395 for the proposition that the amendments so made now provide for the consequence of nonfiling of written statement, and as this is so, the provisions of Order 8 Rules 1 and 10 can no longer be said to be directory but can only be said to be mandatory. In this view of the matter, since a statutory prohibition now exists, the doctrine of res judicata cannot be availed.
6. As against this, learned counsel appearing on behalf of the respondents has argued, basing himself on the decisions in Bhanu Kumar Jain v. Archana Kumar and Another, (2005) 1 SCC 787 and Shaikh Salim Haji Abdul Khayumsab v. Kumar and Others, (2006) 1 SCC 46 that the vital difference between res judicata in a subsequent suit and res judicata in two different stages of the same proceeding must be kept in view. He stated that as the 05.12.2017 order had attained finality and could only now be challenged after the decree in the Suit is passed, clearly, the order of 24.09.2018 is correct. He also stated that by now the order dated 05.12.2017 had been acted upon and a wrongful act of the Court therefore, cannot prejudice him. He also argued citing the judgment of R.K. Roja v. U.S. Rayudu and Another, (2016) 14 SCC 275 that as an Order 7, Rule 11 application had been filed and that had to be answered before trial of the Suit could commence, it was clear that a written statement could not be filed. He then relied upon Section 151 of the Code of Civil Procedure which preserves the inherent power of the court, more particularly, that of a Court of record - the High Court, and can be invoked in cases like the present where grossly unjust consequences would otherwise ensue.
7. Having heard learned couns
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