CITIBANK N A Vs. UPMA GOEL

JUDGEMENT

(1.) Failure to file a written statement within the stipulated period of 90 days from the date of service of summons upon defendant/appellant has culminated in a decree for the recovery of a sum of Rs.8,41,692.73 with costs and future interest @ 8% per annum from the date of filing of the suit till realization. The defendant/appellant questions the validity of the said judgment in the present appeal.

(2.) The appellant bank appears to have extended to the Plaintiff ' Respondent what the bank describes as home credit facility. While the said facility had to be finally closed and the amount yet to be recovered the Plaintiff/Respondent in this appeal filed OS No.103 of 2005 for recovery of a sum of Rs.8,41,692.73 on the premise that the said amount had been paid in excess of what was legitimately due to the Appellant bank. Summons in the said suit were served upon the defendant/Appellant herein on 22nd July 2005. The bank appeared in response to the said notice on 18th August 2005 before the trial court, who adjourned the suit for filing of the written statement to 14th September 2005. The appellant's case is that the copy of the plaint served upon the Plaintiff was not accompanied by the enclosures accompanying the plaint and a complete set of documents was furnished to the Appellant's counsel only on 14th September 2005. The matter was then listed for filing of a written statement on 21st October 2005. On that date, the defendant-Appellant appears to have made an application seeking enlargement of time to file its written statement. The ground urged in the application of the Respondent was that the relevant record relating to the transactions between the Plaintiff and Respondent was lying in Chennai and had to be requisitioned from there to enable the counsel in Delhi to prepare the written statement. The said application was however dismissed on 21st October 2005 itself, even without the Plaintiff/Respondent filing any objection to the same. The Appellant then made another application on 28th October 2005 seeking recall of the order by which the application for extension of time was dismissed. The court remained un-impressed even by that prayer and dismissed the application on 29th October 2005. Simultaneously, the court decreed the suit under Order 8 Rule 1 of CPC on the ground that the defendant- Appellant had failed to file a written statement entitling the Plaintiff to a decree without any trial. The present appeal, as already noticed earlier, assails the correctness of said judgment and decree.

(3.) Appearing for the Appellant, Mr. Anjan Chakravorthy, strenuously argued that the exercise of power vested in the trial court to extend time had been unfairly declined. Relying upon the decision of the Supreme Court in Kailash vs. Nanhku and others, (2005) 4 SCC 480; Rani Kusum (Smt.) vs. Kanchan Devi (Smt.) and Others, (2005) 6 SCC 705 and Ramesh Chand Adawatiya, (2003) 7 SCC 350, he contended that the trial court was competent to grant a reasonable extension for filing of the written statement and that such an extension was not controlled by the provisions of the Order 8 Rule 1 CPC. He further argued that the ground urged by the defendant/appellant for the grant of extension of time in filing of the written statement was also not in dispute as the Plaintiff had not even chosen to file his objection to the applications for extension and for recall of the order of dismissal of the prayer for grant of more time. At any rate, the Plaintiff could not possibly dispute the averment that the record of the bank was lying in Chennai nor could the averment made in the application that the record had been requisitioned from Chennai be questioned by him. He submitted that the Appellant bank was ready and willing to file a written statement within a period of four weeks from today in which event the matter could be remitted back to the trial court for a fresh trial and disposal in accordance with law.