CM(M) 496/2017 & CM(M) 498/2017

1. The petitioners have invoked the jurisdiction of this Court under Article 227 of the Constitution of India with the prayer for setting aside the order dated 3rd February 2017 whereby the opportunity to file the written statement has been declined as well the order dated 4th July, 2016 striking off their defence. The prayer of the petitioners is that in view of the circumstances in which the written statement could not be filed within the stipulated time, one opportunity may be given to the petitioners/defendants to file the written statement.

2. On behalf of the petitioners, it has been contended that the delay in filing the written statement was due to the following reasons:-

(i) The previous counsel engaged by the petitioners did not prepare the written statement on time.

(ii) Thereafter, the petitioners/defendants engaged another counsel who appeared before learned trial Court on 4th July, 2016 but despite request for one more opportunity, the right of the defendants to file the written statement was closed.

(iii) The partnership firm of petitioner No.1 company consists of Sh. Harpal Singh, petitioner no.2 herein and his wife, Rachna Singh, petitioner no.3 herein. The husband is the managing partner who had been travelling in India and abroad in connection with the business which also caused delay in filing the written statement.

(iv) The concerned official of the petitioners’/defendants’ firm who was handling the matter relating to the respondent/plaintiff company left the job and since the dispute pertained to the transaction for the period 2010 to 2014 relating to supply of goods by the respondent/plaintiff company, the time consumed in collecting relevant information from the record also contributed to delay.

3. Learned counsel for the respondent has strongly opposed these petitions taking the following pleas:-

(i) It is not the case of the petitioners that since the date of service till defence was struck off or the application was filed seeking condonation of delay in filing the written statement, the managing partner was out of India.

(ii) Inconsistent pleas were taken in the application which have been noted by the learned trial Court while passing the impugned order thereby declining the permission to the petitioners to file the written statement.

(iii) Though blame has been put on previous counsel for delay in filing the written statement but no complaint was made to the Bar Council against the said counsel.

4. Perusal of the record shows that two Civil Suits bearing No.87/2016 and 88/2016 were filed on 3rd February, 2016 by the respondent/plaintiff M/s Asian Colour Coated Ispat Limited seeking recovery of amount of Rs.98,23,357/- and Rs.39,72,117/- respectively along with pendent lite and future interest.

5. After the service of summons for settlement of issues in March, 2016 (date of service not mentioned), Mr. Ashok Bannidini, Advocate appeared on behalf of the petitioners/defendants and filed memo of appearance. He also sought time to file vakalatnama and written statement. The matter was adjourned to 4th July, 2016 for filing the replication and in the meantime direction to the petitioners/defendants to file the written statement within 30 days.

6. On 4th July 2016, Mr. Amit Pai, Advocate appeared on behalf of the petitioners/defendants and sought further time to file the written statement. On that date Mr. Amit Pai, Advocate submitted that the petitioners/defendants were travelling in different parts of the country for their business purpose hence written statement could not be prepared. This was not considered sufficient by the learned trial Court to grant further adjournment and defence was struck off.

7. Thereafter, case was adjourned to 19th September, 2016 for plaintiff’s evidence. In the meantime, three applications under Section 151 CPC were filed by the petitioners/defendants for recalling the order dated 4th July, 2016 incorporating the reasons due to which petitioner