AI Drafter 
TaxTMI 
TaxTMI 
2018 (5) TMI 1919
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.... 166 days). The learned Single Judge condoned the delay vide order dated March 15, 2016 with a cost of Rs. 5 lakhs which was ordered to be paid by the respondents to the appellant. Aggrieved by the said order condoning such an inordinate delay, the appellant preferred appeal before the Division Bench which has affirmed the order passed by the Single Judge and dismissed the appeal of the appellant. 3. The dispute between the parties is with regard to the dues allegedly payable by the respondents to the appellant of about Rs. 11.9 crores with additional interest as per the particulars of claim annexed to the suit. According to the appellant and as per the arrangement between the parties, the respondents have failed and neglected deliberately with ulterior motives and mala fide intentions to refund the money or handover possession of certain flats in a building named 'Emerald Court' situated at Andheri (E) in Mumbai in respect of which Agreements for Sale have been executed. 4. The case set up by the appellant is somewhat like this: (a) It may be mentioned that respondent Nos. 1, 3 and 4 are the owners of a parcel of land admeasuring 30,262 sq. mtrs. situated at Village....
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....velopers Ltd. regarding the terms of the aforesaid Tripartite Agreement dated April 1, 1996. (c) As per the appellant, in December 1996, by mutual consent, parties cancelled the said Tripartite Agreement dated April 1, 1996. (d) Various further documents were executed between the parties and it is not necessary to give detailed narration thereof. Suffice is to state that as per the version of the appellant, it was agreed that out of Rs. 7,11,75,000/- advanced by the appellant to M/s. Shree Siddhivinayak Developers Ltd., Rs. 3,77,30,000/- would be adjusted towards purchased consideration for 11 flats that would be purchased by the appellant in a building known as 'Emerald Court' at the Kondivita Plot. The balance amount of Rs. 3,34,45,000/- was agreed to be refunded by M/s. Shree Siddhivinayak Developers Ltd. to the appellant. This arrangement was on account of M/s. Shree Siddhivinayak Developers Ltd. expressing their inability to repay the appellant entirely. However, even when some additional amounts were paid towards the aforesaid flats, the respondent No. 2 failed to deliver the 11 flats in respect of which agreement was entered into. The appellant and responde....
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.... 5 years and 54 days in filing the written statement (though as per the appellant, delay was 14 years and 166 days). 6. Notice of Motion No. 1212 of 2015 in Suit No. 4870 of 1999 was taken up for hearing and vide order dated October 28, 2015, it was dismissed by the learned Single Judge who refused to condone the delay with, inter alia, following observations: "4. It is obvious from the affidavit in support of Notice of Motion that the defendants had completely and knowingly neglected the proceedings. ............. The facts of the case on hand disclose patent inordinate delay on the part of the defendants and as such attracts the doctrine of prejudice. The delay is to the extent of completely ignoring the proceedings. Taking a liberal view of such gross facts would amount doing injustice to the plaintiff and allowing premium on the negligence of the defendants." 7. Intra-Court appeal was filed by the respondents against the said order before the Division Bench of the High Court which was also dismissed by the Division Bench on January 6, 2016 holding that 'the Defendants had completely and knowingly neglected the proceedings'. It would be pertinent....
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....n balanced, then, we do not think that in further appellate jurisdiction such an order deserves interference. The Appeal is devoid of merits and is dismissed. By consent of parties, the time to take inspection of the documents and complete pretrial formalities is extended by eight weeks." 9. As is clear from the above, the circumstance which weighed with the High Court in condoning the delay was that though the suit was filed in the year 2000, summons were served only in the year 2009. Plea of the appellant that summons were actually served in the year 2000 itself was not accepted. On this basis, the High Court came to the conclusion that since appellant itself took time of 9 years after institution or following of the suit, to serve the summons upon the respondents herein, equities were balanced by allowing the respondents to file the written statement, more so, when no irreparable loss or prejudice was caused to the appellant and no case of mala fides was made out against the respondents. 10. Notice in the Special Leave Petition was issued on July 18, 2017 which was duly served upon all the five respondents. However, none of the respondents have entered appearance. Accordin....
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....beit, in Form 4 of Appendix B, as stipulated in Rule 2 of Order XXXVII of the Code of Civil Procedure, 1908. May be, thereafter, Writ of Summons were not served again upon the respondents. However, in any case, these summons were served in the year 2009. Therefore, it was incumbent upon the respondents to show as to in what manner they were prevented from filing the written statement. 14. It has to be borne in mind that as per the provisions of Order VIII Rule 1 of the Code of Civil Procedure, 1908, the defendant is obligated to present a written statement of his defence within thirty days from the date of service of summons. Proviso thereto enables the Court to extend the period upto ninety days from the date of service of summons for sufficient reasons. Order VIII Rule 1 of the Code of Civil Procedure, 1908 reads as under: "1. Written statement.- The defendant shall, within thirty days from the date of service of summons on him, present a written statement of his defence: Provided that where the defendant fails to file the written statement within the said period of thirty days, he shall be allowed to file the same on such other day, as may be specified by the Court, ....