LAW_HUB

Rule 1 of Order 8 of Code of Civil Procedure (hereafter referred as C.P.C) briefly states that when the defendant is served with summons he has 30 days to file a written statement in his defense. If somehow defendant failed to file his written statement within 30 days, he can file the same on some other day specified by the court but t shan’t be later than 90 days from the day the summons were first served.

Rule 10 of Order 8 of C.P.C states that if party fails to file his written statement within 30 days or even 90 days defined under Rule 1 of Order 8 of C.P.C then 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.

However Supreme court in certain cases have said that in certain “exceptional cases”, defendant can file his written statement even after 90 days.

Here are some Supreme Court cases which provide us with the Ratio Decidendi on the same point.

# Salem Advocate Bar Association v UOI, 2005, 6, SCC, 344

In this case Supreme Court has interpreted the above Rule 1 of Order C.P.C. The court held “…despite use of word ‘shall’ the court has been given the discretion to pronounce or not to pronounce the judgment against the defendant even if written statement is not filed within 90 days.

The court said in interpreting Rule 1 of Order C.P.C, Doctrine of Harmonious Construction should be applied.

Apex court also held “… Court has wide power to make such order in relation to such suit as it thinks fit. However we wish to make it clear that the order extending time to file a written statement can’t be made in routine. Time can only be extended in only Exceptional cases.”

# Atcom Technologies Ltd. v Y.A. Chunawala and Co. 2018, 6, SCC, 639

Here also the Supreme court relied on the precedent set in Salem Advocate Bar association case. It was held that in exceptional cases onus upon the defendant is higher to successfully plead and show that he had a genuine reason or cause for not filing the written statement within 30 days.

Now there are certain guidelines held in a judgment given by Guwahati High court. We’ll discuss those guidelines below;

# Manager (Finance) Hindustan Paper Corporation v Canara Bank

The court in it’s ratio said;

1. “Ordinarily a written statement shall be filed within 90 days from the date on which summons were issued, however in exceptional cases courts have the power to extend the period.”
2. ” I have to point out that C.P.C is divided into two parts and while the main body of the code which consists of Sections, rules framed under various orders of code indicate the procedure”
3. ” Rule 1 of Order 8 of C.P.C are part of Procedural law. The procedural law is ‘Handmaid of Justice’ and can’t override the necessity to do justice between the parties to the suit. No part of procedural law and not even Order 8, Rule 1 or Rule 10, can be treated to have ‘disempowered the court’ or can be said to in the way of the court to make exception in an ‘Appropriate Case.’
4. “In Kailash v Nankhu, apex court has made it clear that a court may for reasons to be recorded in writing by way of exception, extended the prescribed period of 90 days if the court is satisfied.”
5. ” Circumstances should be exceptional occasioned by reasons beyond the control of the defendant and such extension was required in the interest of justice and grave injustice would be occasioned if the time was not extended”
6. “The defendant should be vigilant. The extension of time sought by the defendant from the court, shouldn’t be granted just as a matter of routine and merely for the asking.”
7. ” The court may impose costs on the person asking for the extension in two cases. Firstly ‘to deter‘ the defendant from seeking extension of time just for the asking. And secondly ‘to compensate’ the plaintiff for the delay and inconvenience.”

In International Commercial Arbitration, question arises as to which substantive law would govern the arbitration process? The answer to this, validity of the arbitration and “seat” or “place” is considered.

“Venue” is considered simply to be a “geographical location” as per parties’ convenience.

“Seats” decides the actual appropriate court which would’ve the exclusive jurisdiction to the case.

Where a “seat” is specified procedural aspects of that country are considered. However if the parties failed in this regard it’s governed by the law of the place of arbitration.

# Enercon India Ltd and Ors v Enercon Gmbh

• Dispute arose under International Property License Agreement (IPLA)
• Parties stated that venue would be London and governing law would be Indian Arbitration and Conciliation Act, 1966.
• Question was whether London court could’ve jurisdiction where the venue was in London.
• Supreme Court distinguished between the seat and the venue of the arbitration and held “express mention in the judgement that London was the venue, doesn’t lead to the conclusion that it was the Seat of arbitration”.
• Thus it is not necessary for the seat and venue to be the same.

# UOI v Hardy Exploration and Production (inc), unreported, 2018

• Parties had entered a production-sharing contact in November 2016, for the extraction, development and production of hydrocarbons in a  geographic block in India.
• Eventually a dispute arose as UOI allegedly relinquish the rights of Hardy Exploration and Production (HEPI).
• HEPI initiated arbitration proceedings against UOI.
• Arbitration Tribunal specified Kuala Lumpur as the venue of arbitration and it was conducted in Kuala Lumpur.
• Award was challenged (unsuccessfully) by the government under Section 34 of Arbitration and Conciliation act, 1966 by a single judge and by a division bench of Delhi High Court.
• High Court held that Indian courts don’t have jurisdiction to entertain the government’s application under Section 34 of the act.
• An appeal was filed in Supreme Court.
• Apex court held that parties were free to agree on the place of arbitrarion, and if this wasn’t specified, arbitration tribunal would decide on the question.
• In this case just because the Arbitrators held meeting in Kuala Lumpur and signed the award it “didn’t amount to determination of seat”.
• Supreme Court further said “venue of an arbitration couldn’t by that very fact be considered to be its “seat” and that “place” COULD BE EQUATED with the “seat” if no conditions precedent were attached to it.

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