IN THE HIGH COURT OF DELHI AT NEW DELHI SUBJECT : CODE OF CIVIL PROCEDURE Date of Decision: FAO(OS) 455/2012 and CM No.

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1 IN THE HIGH COURT OF DELHI AT NEW DELHI SUBJECT : CODE OF CIVIL PROCEDURE Date of Decision: FAO(OS) 455/2012 and CM No.16502/2012 (Stay) GODREJ CONSUMER PRODUCTS LIMITED... Appellant Through: Mr.Rajiv Tyagi, Ms.Chanchal Biswal, Mr.Ajay Kumar and Mr.Gyanendra Sharma, Advocates. versus DABUR INDIA LIMITED... Respondent Through: Mr.Sudhir K.Makkar with Ms.Meenakshi Singh, Advocates. CORAM: HON'BLE MR. JUSTICE SANJAY KISHAN KAUL HON'BLE MS. JUSTICE INDERMEET KAUR SANJAY KISHAN KAUL, J. (Oral) 1. The appellant as defendant in the suit failed to file the written statement within the time stipulated or extended whereafter the written statement was sought to be brought on record by filing an application under Order 8 Rule 1 of CPC after delay of 209 days beyond a period of 90 days. The learned single Judge, despite the extraordinary delay, showed indulgence by permitting the written statement to be taken on record, but subject to payment of costs of Rs.1,00,000/- to the respondent and it is only on the imposition of costs that the appellant has filed the present appeal. 2. In order to appreciate as to what is the basis of filing such an application, averments made in the application have to be seen. The only averments made in the application is that the appellant was searching for some scientific literature to establish its case and for this reason there was delay in filing of the written statement. In the impugned order, however, learned counsel for the appellant apparently tried to improve the case of the appellant by canvassing that since the matter at the interlocutory stage went right up to the Supreme Court, focus of the appellant was lost in that process

2 and the written statement was not filed. Clearly, the second aspect cannot be taken note of as it does not form a part of the averments in the application. 3. In our view, in fact, the so-called search for scientific matter was no ground to have extended the time period for filing of the written statement. However, we are not faced with an appeal from the respondent which would require us to pass an order in that direction and we are only required to examine whether the imposition of costs was exorbitant or whether the costs ought to have been imposed in the given facts and circumstances of the case. 4. Learned counsel for the appellant firstly canvassed that there were no reasons given in the impugned order for such costs being imposed. The second limb of his submission is that the standard of costs to be imposed must be laid down and it cannot be so high. The last limb of the submission is that the provisions of Order 8 Rule 1 CPC have been held to be directory and not mandatory. 5. Dealing with the last aspect first, no doubt the Supreme Court has held that the time period can be extended for just and reasonable cause but it is not to be done in a routine manner. The very legislative intent of having time-bound schedules for completion of trials gets lost if, in routine, the time period is extended. 6. As far as the reasons for imposition of costs are concerned, the learned single Judge does not find the case of the appellant completely justified, but has, in fact, shown indulgence while noticing the pleas and granting time to the appellant to bring the written statement on record in fact even beyond the pleadings in the application. 7. Learned counsel for the appellant in his elaborate submissions has sought to take us through the provisions of Sections 35, 35A, 35B of CPC to contend that at best the present case would fall within the purview of Section 35B of CPC. He further submits that as per sub-section (2) of Section 35B, if costs are not paid, they are to be included as costs awarded under the decree and the payment of the costs could not have been conditional for purposes of bringing the written statement on record. 8. We reject all these arguments. A bare reading of Section 35B (1) of the said Act shows that for the reasons to be recorded, the costs shall be a condition precedent to the further prosecution. Thus, conditional costs are very much within the domain of Section 35B (1).

3 9. The aspect of costs has agitated the minds of various judicial forums. The reason is that the matters keep on getting delayed without adequately compensating a party for the expenses incurred. In this behalf, learned counsel for the appellant has referred to para 38 of the judgment in Salem Bar Association, Tamil Nadu v. Union of India; AIR 2005 SC The same reads as under: Section 35 of the Code deals with the award of costs and Section 35-A with the award of compensatory costs in respect of false or vexatious claims or defences. Section 95 deals with grant of compensation for obtaining arrest, attachment or injunction on insufficient grounds. These three sections deal with three different aspects of the award of costs and compensation. Under Section 95 costs can be awarded up to Rs 50,000 and under Section 35-A, the costs awardable are up to Rs Section 35-B provides for the award of costs for causing delay where a party fails to take the step which he was required by or under the Code to take or obtains an adjournment for taking such step or for producing evidence or on any other ground. In the circumstances mentioned in Section 35-B an order may be made requiring the defaulting party to pay to the other party such costs as would, in the opinion of the court, be reasonably sufficient to reimburse the other party in respect of the expenses incurred by him in attending court on that date, and payment of such costs, on the date next following the date of such order, shall be a condition precedent to the further prosecution of the suit or the defence. Section 35 postulates that the costs shall follow the event and if not, reasons thereof shall be stated. The award of the costs of the suit is in the discretion of the court. In Sections 35 and 35-B, there is no upper limit of amount of costs awardable. 10. A bare reading of the last three sentences makes it abundantly clear that there is no upper limit to the amount of costs to be awarded. 11. Learned counsel for the appellant has also referred to the judgment in Zolba v. Keshao & Ors.; AIR 2008 SC Firstly, that is an order and not a judgment. The order of the Supreme Court is not to be read like a statute as repeatedly emphasized by the Supreme Court itself. In fact, para 7 of the judgment, itself states that it is being made in the given facts and circumstances of the case. Secondly, the judgment only refers to the fact that the provisions of Order 8 Rule 1 of CPC are not mandatory and that ordinarily a party should not be denied the opportunity of participating in the process of justice dispensation. In the facts of the present case, the appellant

4 has been permitted to participate, but the only condition is of costs. Thus, this judgment also has no application. 12. We are thus of the view that the learned single Judge has been more than indulgent in permitting the appellant to bring the written statement on record on the condition of payment of costs of Rs.1 lakh. 13. In the end, we must note the aspect of the value of judicial time. Frivolous proceedings result in wastage of judicial time when the courts are already over-burdened with various matters. On a simple issue, like that of costs being imposed as a pre-condition for bringing on record the written statement, after a delayed period of 209 days beyond a period of 90 days, half an hour of this court has been spent. Costs are discretion of the court. A litigant must pay for the judicial time spent and for the costs incurred by the respondent in engaging a counsel. 14. We thus dismiss the appeal with costs of Rs.20,000/-. Sd/- SANJAY KISHAN KAUL, J MARCH 04, 2013/dm Sd/- INDERMEET KAUR, J FAOOS NO.455/2012 Page 1 of 5

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