Court exercises jurisdiction under Article 227 to ensure justice after a seven-year delay in filing written statements in MOFA-related specific performance suits.
In a significant judgment, the Bombay High Court has allowed M/s Real Gem Buildtech Pvt. Ltd., the defendant in a long-pending civil suit, to file its written statement after a delay of over seven years. The suits, filed by M/s East Tradvest Pvt. Ltd. and M/s Mayuresh Structure Pvt. Ltd., allege failure by the defendant to execute agreements for flats despite receiving substantial payments. The trial court had earlier denied the defendant’s application to condone the delay in filing the written statement, citing a lack of formal service of the writ of summons.
The case revolves around specific performance suits under the Maharashtra Ownership Flats Act, 1963 (MOFA), where plaintiffs claim that the defendant did not fulfill its obligations despite having accepted more than 25% of the total sale consideration. The defendant argued that the writ of summons was never served, and thus the time to file the written statement under Order VIII Rule 1 of the Code of Civil Procedure, 1908 (CPC), had not commenced.
Justice Gauri Godse, presiding over the matter, emphasized the technical impropriety in denying the defendant the right to file a written statement without proof or waiver of service of summons. The judgment clarified that filing a vakalatnama or replying to an interim application does not constitute a waiver of service of the writ of summons. The court exercised its jurisdiction under Article 227 of the Constitution to ensure justice, directing the trial court to permit the defendant to file its written statement within four weeks.
The decision underscores the importance of procedural fairness, as refusing permission to file a written statement would effectively prevent the defendant from defending the suit. Justice Godse pointed out that the trial court had not recorded any finding of express waiver of service of summons nor issued any order for filing a written statement, thus leading to the conclusion that the time for filing had not commenced.
This ruling comes as a relief to the defendant, who had filed the application for condonation of delay as a precautionary measure. The court criticized the technical approach taken by the trial court, urging a pragmatic resolution to expedite the suits filed in 2011. The trial court has been directed to decide the suits expeditiously, with cooperation from both parties, to avoid further unnecessary adjournments.
The judgment is expected to impact similar cases where procedural delays hinder the administration of justice, reaffirming the necessity of ensuring defendants have a fair opportunity to present their defenses.
Bottom line:-
The period for filing a written statement under Order VIII Rule 1 of the Code of Civil Procedure, 1908, commences only upon service of a writ of summons, or its express waiver by the defendant, or when the court directs the filing of a written statement. Filing a vakalatnama or a reply to an interim application does not constitute a waiver of service of the writ of summons.
Statutory provision(s):
- Article 227 of the Constitution of India
- Order VIII Rule 1 of the Code of Civil Procedure, 1908
- Maharashtra Ownership Flats Act, 1963
