IRIDIUM INDIA TELECOM LTD Vs. MOTOROLA INC

JUDGEMENT

(1.) THIS appeal is directed against an order of the learned Single Judge, extending the time for the first respondent to file. its written statement beyond the period of 90 days, prescribed by Order viii, Rule 1 of the Code of Civil Procedure, by exercising inherent power under section 148 of the Code of Civil Procedure. The learned Single judge extended time by holding that section 148 could be invoked to extend the period prescribed under Order VIII, Rule 1, notwithstanding the Proviso to Order VIII, Rule 1, which curtails the power of a Court to extend time only upto 90 days. The appeal raises important question involving the scope and interpretation of the provisions of Order VIII, Rule 1 of the C. P. C. as amended by the Code of Civil Procedure (Amendment)Act, 2002 (Act 22 of 2002} with effect from 1st July, 2002. The more fundamental issue is whether the provisions of Order VIII, Rule 1 would apply to suits on the Original Side or Original Side Rules continue to prevail by virtue of section 129 of the Code of Civil Procedure.

(2.) THE appellant is the original plaintiff. The appellant is a company whose equity is substantially held by the financial institutions, Banks, insurance Companies and their affiliates. Respondent Nos. 1 and 2 i. e. original defendant Nos. 1 and 2 are Corporations incorporated in USA. The appellant has filed the present suit for recovery of a sum of Rs. 960 crores and certain other reliefs. The suit was filed on 16th September, 2002. The first respondent was served with the plaint and proceedings on 20th September, 2002. The first respondent was served with the Writ of Summons on 9th April, 2003. Under the provisions of Order VIII, Rule, 1, a period of 30 days is available for filing written statement. Under proviso to Order VIII, Rule 1, a Court can extend this period, for the reasons to be recorded in writing, but which shall not be later than 90 days. The 30 day period would have expired on 9th May, 2003. On 2nd may, 2003 the first respondent made an application for extension of time to 90 days which came to be granted vide order dated 2nd May, 2003. While so granting time, the learned Single Judge observed that period of 90 days would be more than sufficient, having regard to the fact that a detailed reply had been filed and the plaint had been served on the first respondent as far back as on 20th September, 2002. As regards the issue as to whether the first respondent can invoke section 148 of the Civil procedure Code and apply for further extension of 30 days beyond 8th july, 2003, the learned Single Judge observed that the request is premature, and could be considered only on 8th July, 2003 provided that the first respondent is capable of making sufficient cause to show that. According to the first respondent, written statement was ready on 8th July, 2002 but it was not signed and, therefore, extension of 30 days was sought under section 148, which was granted by the learned Single Judge.

(3.) TO understand the respective contentions of the parties it would be necessary to refer to the relevant provisions of the Civil Procedure Code as amended by the Code of Civil Procedure (Amendments) Act, 2002. The Statement of Objects and Reasons of the amending Act specifically provides that the amendments is enacted with a view to curtail delay at every stage so that justice is not delayed. Order VIII, Rules 1 and 10, which are relevant for our purpose read as follows; "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, for reasons to be recorded in writing but which shall not be later than ninety days from the date of service of sumirions. " 10. Procedure when party fails to present written statement called for by Court. Where any party from whom a written statement is required under Rule 1 or Rule 9 fails to present the same within the time permitted or fixed by the Court, as the case may be, the Court shall pronounce judgment against him, or make such order in relation to the suit as it thinks fit and on the pronouncement of such judgment a decree shall be drawn up. " a bare reading of the above shows that the amended provisions mark a complete departure from the earlier provisions. Whilst prior to the amendment, there was no embargo in extending time, the amendment expressly limited the power of Court to extend time to 90 days. The amended provisions of Order VIII, Rule 1 were considered by the Supreme Court in (Dr. j. j. Merchant v. Shrinath Chaturvedi, 2003 (1) Bom. C. R. (S. C.)24 : 2002 (6) S. C. C. 635. The Court observed: