Ashwani Nayyar vs Sunil Anand Sunil Anand Vs Ashwani Nayyar

Indermeet Kaur, J.—The order impugned before this Court is the order dated 18.09.2007 vide which the application filed by the Defendant namely Sunil Anand i.e. his application under Order 12 Rule 6 of the Code (hereinafter referred to as the ''Code'') read with under Order 7 Rule 11 of the Code as also read with Section 8 of the Arbitration and Conciliation Act had been dismissed; this was qua the Defendant. The Plaintiff had also filed an application under Order 8 Rule 10 of the Code seeking a judgment forthwith on the ground that the Defendant inspite of opportunity having been granted to him had not filed his written statement within the stipulated period; judgment should be pronounced forthwith. The impugned order had dismissed both the applications i.e. application filed by the Defendant as also the application of the Plaintiff.

The Plaintiff is Ashwani Nayyar; he has filed the present suit for a declaration seeking a decree of declaration to the effect that the dissolution deed dissolving the partnership between the Plaintiff and the Defendant i.e. dissolution deed dated 31.10.1992 be declared null and void as it was obtained by fraud and mis-representation. This is the gist of the suit filed by the Plaintiff. He is represented today. None has appeared for the Defendant.

The grievance of the Plaintiff is that he was entitled to judgment forthwith and the impugned order granting time to the Defendant to file his written statement suffers from an illegality. Reliance has been placed upon a judgment of the Apex Court reported in Aditya Hotels (P) Ltd. Vs. Bombay Swadeshi Stores Ltd. and Others, to support his submission that until and unless an exception is made out, extension of time should not be granted in filing the written statement; No. such case is made out in the instant case.

The impugned order has in para 17 detailed the reasons for granting permission to the Defendant to file his written statement. The Court has rightly noted that since the application filed by the Defendant under the aforenoted provisions of law i.e. under Order 12 Rule 6 of the Code read with under Order 7 Rule 11 of the Code as also read with Section 8 of the Arbitration and Conciliation Act was yet pending and which has been disposed of only by the impugned order i.e. on 18.09.2007, in view of the aforenoted facts sufficient cause is made out to grant opportunity to file written statement as his aforenoted application was yet pending; it was in these circumstances, opportunity had been granted to the Defendant to file his written statement. Extension of time was rightly granted keeping in view the aforenoted factual scenario; it is not a case where the Defendant had deliberately, negligently or in disobedience of the Court not filed his written statement; as noted supra, it was for the reason that the aforenoted application filed by him which application u/s 8 of the Arbitration and Conciliation Act was yet pending which application has to be filed in the first instance i.e. even before filing the written statement. The impugned order suffers from No. infirmity on this count.

The Defendant is also aggrieved by the fact that his application under Order 12 Rule 6 of the Code read with under Order 7 Rule 11 of the Code as also Section 8 of the Arbitration and Conciliation Act has been dismissed. However, none has appeared for him. The Court has noted the relevant dates.

On 17.04.1996, the Defendant had sought four weeks time to file his written statement; he had in fact submitted himself to the jurisdiction of the Court; his application u/s 8 of the Arbitration and Conciliation Act was not filed in the first instance; he had also been granted opportunity to file written statement which was on his specific request. Record also shows that the Plaintiff has filed the suit on the ground that the dissolution deed had been obtained by fraud; the documents filed by the Plaintiff however did not make out a case of any unambiguous admission on his part which would entitle the Defendant to seek a rejection of the plaint; it was not a case where No. cause of action was made out in favour of the Plaintiff; provisions of Order 12 Rule 6 of the Code seeking a judgment on admission were also satisfied as the documents appended by the Plaintiff along with the plaint did not make out a case of a clear and an unambiguous admission; this application was thus rightly rejected; this part of the order also calls for No. interference.

Both the petitions are disposed of accordingly.