AVTAR SINGH Vs. ASSET RECONSTRUCTION COMPANY

JUDGEMENT

(1.) IN the present petition, the challenge is to the order dated 28.7.2011 passed by the learned court below, whereby on account of non- filing of written statement by the petitioner, his defence was struck off. The proceedings in the present case arise out of a suit filed by respondent /plaintiff against the petitioner for recovery of ` 4,37,331.02. For the view I am taking in the present petition, I do not deem it appropriate to issue notice to the respondent, as the same would unnecessarily delay not only the disposal of the present petition but also the suit as well.

(2.) LEARNED counsel for the petitioner submitted that after issuance of notice in the suit, the petitioner appeared through counsel before the learned court below on 3.5.2011. On the next date of hearing i.e. 8.6.2011, written statement could not be filed as the same was not ready and the case was adjourned to 28.7.2011. On 28.7.2011, as the petitioner had gone out of station to attend some family function and could not appear in the court, his counsel prayed for time to file written statement, however, the learned court below struck off his defence before even expiry of 90 days. Due to this reason, the written statement could not be filed in time. It was submitted that delay in filing the written statement was not intentional. The petitioner had, in fact, paid 14 installments of loan and surrendered possession of car himself which was sold by the bank. These pleas are sought to be raised in the written statement. It was further submitted that the plaintiff had failed to lead any evidence inspite of grant of numerous opportunities. The case is fixed for 14.5.2012 for evidence of the plaintiff. The prayer is that order dated 28.7.2011 striking off defence of the petitioner be set aside and one opportunity be granted to file the written statement. He has relied upon judgments of Hon'ble the Supreme Court in Kailash vs Nanhku and others , JT 2005(4) SC 204; Salem Advocate Bar Association, Tamil Nadu v. Union of India, JT 2005(6) SC 486 and M/s R. N. Jadi and Brothers and others v. Subhashchandra, JT 2007(9) SC 165 to submit that Order VIII Rule 1 of the Code of Civil Procedure has been held to be directory in nature and not mandatory.

(3.) CONSIDERING the aforesaid facts, I deem it appropriate to grant one opportunity to the petitioner to file written statement. Accordingly, the petitioner is permitted to file written statement before the learned court below on 14.5.2012 with a copy to counsel for the respondent/ plaintiff. The petition stands disposed of accordingly.