CommerciAl courts Act-Time limit for FILING written
statement & REPLICATION
The
pivotal object of enactment of Commercial Courts Act 2015 (CCA) and its
amendment in 2018 is to ensure that the commercial suits are decided expeditiously
and whereas, the procedure as laid down under the Act is quite stringent,
still, as the focus is also on avoiding delay in adjudication of the lis, hence
the enactment is made to cater to that object. The causes of the bottlenecks in
legal proceedings, as observed over the years includes, primarily, enormous delay
in filing written statement and replication, thereby, at the stage of completion
of pleading itself, inordinate delay used to be caused due to one or other
reasons pleaded. The CCA has endeavoured to address such a situation and in a
great deal the roadblocks are being cleared.
As
discussed, in the ordinary suits, the main reason of delay used to be in filing
written statement to the suit and though amendment in Code of Civil Procedure
in the year 2002 had prescribed that for filing written statement, the maximum
period of 120 days from the date of service shall only be available, however,
vide several judicial pronouncements it was held that 120 days period could not
be treated as mandatory and the courts had the discretion to condone the delay
beyond 120 days. The situation as aforesaid; thus, remained unchanged for all
practical purposes. The CCA has now stipulated that not only the maximum period
for filing written statement shall be 120 days and if not filed, the right to
file written statement shall be closed. The provision is made mandatory. In
fact, as per CCA taking recourse to Order VIII Rule 10 of Code of Civil
Procedure, the judgment and decree shall also be pronounced forthwith, in the
event of non- filing of written statement within 120 days from the date of
service of summons. Yet another dimension is that even for filing replication
to the written statement, the maximum prescribed period is 45 days and the
replication to written statement cannot be filed thereafter (Of course, the
same is as per Delhi High Court rules only as applicable to the original
jurisdiction of Delhi High Court). In this manner, the very reason of delay
instrumental in prohibiting progress in a suit has now been addressed. It is
also worth mentioning that the CCA has also provided for filing of statement of
truth along with plaint and written statement, thereby, curtailing the prospect
of delay in procedural logjam. In order to obviate that, the affidavit of
admission and denials as per the prescribed performa is mandated to be filed
along with the plaint and written statement as the case may be. Not only this,
parties to the lis has to state on oath, that apart from the documents so filed
along with plaint and written statement as the case may be, no other documents
are in their power and possession and that the suit or written statement is based
on the pleadings and documents already on record and it is envisaged in CCA
that open ended procedural regime should no longer be available as that is
prone to cause delay. The suit and defence can thus be furthered accordingly,
as per the case and defence as respectively set out. In order to buttress it
further, there has also been stipulation that after framing of issues, no
documents could be filed by the parties.
The
Commercial Courts, Commercial Division and Commercial Appellate Division of
High Courts Act 2015 came into effect on 23.10.2015 and certain amendments in
the Code of Civil Procedure were made in a wake of the Act. The amendments were
made inter alia in Order V Rule 1, sub-rule (1) the following were
substituted:
Provided
further that where the defendant fails to file written statement within the
said period of thirty days , he shall be allowed to file the written statement
on such other days, as may be specified by the Court, for reasons to be
recorded in writing and on payment of such costs as the court deems fit, but
which shall not be later than one hundred and twenty days from the date of
service of summons and on expiry of one hundred and twenty days from the date
of service of summons, the defendant shall forfeit the right to file the
written statement and the court shall not allow the written statement to be
taken on record”.
Similarly,
in Order VIII Rule 1, a new provision stands substituted as under:
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 written statement on
such other day, as may be specified by the court, for reasons to be recorded in
writing and on payment of such costs as
the Court deems fit, but which shall not be later than one hundred and twenty
days from the date of service of summons and on expiry of one hundred and
twenty days from the date of service of summons the defendant shall forfeit the
right to file the written statement and the Court shall not allow the record
statement to be taken on record.
Pertinently,
this was further reemphasized by inserting yet another proviso in Order VIII
Rule 10 of Code of Civil Procedure, which reads as under:
Procedure
when party fails to present written statement called by the Court: When
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 pronouncement of such
judgment a decree shall be drawn up.
Provided
further that no court shall make an order to extend the time provided under
Rule 1 of this Order for filing of the written statement.
Bare
perusal of the aforesaid provisions shall demonstrate that ordinarily a written
statement should be filed within a period of Thirty (30) days and extension up
to a total period of 120 days could, only, be granted if sufficient causes are
shown by the defendant and if the court records its satisfaction and that too
with such terms as the Court imposes, Significantly, after a total period of
120 days from the date of service of summons the defendant shall forfeit the
right to file written statement and the written statement cannot be taken
on record thereafter. The provision of Order VIII Rule 10 of CPC again buttress
that, while adding that, the Court has no further power to extend
the time beyond the period of 120 days.
In
order to appreciate the ratio of SCG Contract India Pvt Ltd Vs KS
Chamankar Infrastructure Pvt Ltd AIR 2019 Supreme Court 2691,
it is imperative to cull out the facts in nutshell, in the context of filing of
written statement and as per the table below:
14.07.2017 |
The summons of suit
filed before the high court was served on the defendant |
13.10.2017 |
Despite expiry of
120 days from the date of service of summons, no written statement filed. |
13.10.2017 |
Within the
stipulated period, it appears Application under Order VII Rule 11 of CPC was
filed without filing written statement. |
05.12.2017 |
The application
under Order VII Rule 11 of CPC was dismissed. The written
statement filed by the defendant was taken on record, however, subject to the
costs of Rs 25,000/-The time of filing written statement was extended till 15th
December 2017, failing which right to file written statement was to be
forfeited. |
15.12.2017 |
Written statement
was filed. |
06.08.2018 |
Another application
was filed by the defendant on the premise, that in view of recent amendments
in the Code of Civil Procedure and owing to non- adherence of those
provisions, the written statement was not as yet taken on record and as 120
days had already expired and the high court had permitted time of filing it
till 15.12.2017 only. |
24.09.2018 |
It was held by
another single judge of the high court that as the last date beyond 120 days
was granted to the defendant i.e the written statement was permitted to be
filed till 15.12.2017 and it was filed by that date, albeit without adhering
to the amended provisions of CPC. The order was passed in view of earlier
order dated 05.12.2017. |
The
Special Leave Petition was preferred against both the orders impugned
before the Supreme Court i.e order dated 05.12.2017 and 24.09.2018. It was
contended that the amendments in CPC clearly entails consequences of non-
filing of written statement within stipulated time and that the provisions of
Order VIII Rule 1 of CPC being mandatory, the written statement cannot be taken
on record, if it is filed beyond 120 days from the date of service of summons. It
was further contended that the impugned order against the statutory provision
cannot be construed as res judicata.
The
aforesaid provisions as referred to hereinabove, if weighed with what the High Court
has held, then, it appears that the same is contrary to the ratio as laid down
in a matter reported as SCG Contract India Pvt Ltd (Supra). The
Supreme Court has held that beyond a period of 120 days, written statement
cannot be filed in a commercial suits. The following judgments were referred to
and relied upon and distinguished in its context by the Supreme Court:
(i)
State of Bihar & Ors Vs Bihar Rajya Bhumi Vikas Bank Samiti (2018) 9 SCC
472;
(ii)
Canara Bank Vs NG Subharya Setty & Anr AIR 2018 SC 3395;
(iii)
Bhanu Kumar Jain Vs Archana Kumar & Anr (2005) 1 SCC 787;
(iv)
Shaikh Salim Haji Abdul Khayumsab Vs Kumar & Ors (2006) 1 SCC 46;
(v) KK Roja Vs U.S Rayudu and Anr
(2016) 14 SCC 275;
(vi) Kailash vs Nankhu (2005) 4
SCC 480
(vii)
Salem Advocates Bar Association Vs Union of India (2005) 6 SCC 344;
(viii) State Vs N.S Gnaneswran
(2013) 3 SCC 594;
(ix)
Manohar Lal Chopra Vs Rai Bahadur Rao Raja Seth Hiralal (1962) Suppl 1 SCR
450;
(x)Oku
tech Private Ltd Vs Sangeet Agarwal & Ors CS (OS) 3390/2015 (Delhi
High Court);
(xi)
Maja Cosmetics Vs Oasis Commercial Pvt Ltd 2018 SCC Online Del 6698
In
State of Bihar (Supra) & Canara Bank (Supra) it
is held that the amendments in CPC clearly entails consequences of non- filing
of written statement within stipulated time and that the provisions of Order
VIII Rule 1 of CPC cannot be construed as directory any longer.
It
is held as under by the Supreme Court in Canara Bank Vs NG Subharya Setty
& Anr AIR 2018 SC 3395:
“An
issue of law which arises between the same parties in a subsequent suit or
proceeding is no re judicata, if, by an erroneous decision given on a statutory
prohibition in the former suit or proceeding, the statutory prohibition is not
given effect to. This is despite the fact that the matter in issue between the
parties may be the same as that directly and substantially in issue in the
previous suit or proceeding. This is for the reasons that in such cases, the
right of the parties are not the only matter for consideration (as in the case
of erroneous interpretation of a statute inter parties), as the public policy
contained in the statutory prohibition cannot be set at naught. This is for the
same reason as that contained in matters which pertain to issues of law that
raises jurisdictional questions. We have seen how, in Natraj Studio AIR 1981
SC 537 (Supra), it is the public policy of the statutory prohibition
contained in Section 28 of Bombay Rent Act that has to be given effect to. Likewise,
the public policy contained in the statutory prohibitions, which need not
necessarily go to jurisdiction of a Court, must equally be given effect to.
Likewise, the public policy contained in other statutory prohibitions, which
need not necessarily go to jurisdiction of a Court, must equally be given
effect to, as otherwise special principles of law are fastened upon parties
when special consideration relating to public policy mandate that this cannot
be done”.
In
Bhanu Kumar Jain (Supra) and Shaikh Salim (Supra)
relied by the respondent while contending that there are vital differences
between principles of res judicata in a subsequent suit and res
judicata in two different stages of the same proceeding. It was contended
that the order dated 05.12.2017 had attained finality and could only be
challenged after pronouncement of judgment and decree and therefore, the order
dated 24.09.2018 is correct. The order dated 05.12.2017 has already been acted
upon and that cannot be re-opened at this stage. Reliance was placed on R.K
Roja (Supra) to contend that as an application under Order VII Rule 11
of the Code of Civil Procedure has been filed and that has to be answered
before proceeding for a trial and therefore written statement could not have
been filed in this backdrop.
The
Supreme Court has categorically distinguished the judgment rendered in Bihar
Vikas Bank Samiti (Supra) in as much as a question was raised, then, as
to whether section 34(5) of the Arbitration & Conciliation Act 1996,
inserted by the amendment Act 3 of 2016 is mandatory or directory. In the said
judgment, the Supreme Court had referred to Kailash Vs Nankhu (Supra)
while also reiterating the text of Order VIII Rule 1 as it stood, during and prior
to the enactment of CCA 2015. Similarly, in Salem Advocate Bar
Association (Supra) it was held that the mere expression “shall” in
Order VIII Rule 1would not make the provision mandatory. The Supreme Court,
then also referred to N. Gnaneshwaran (Supra) in which section
154(2) of Cr.PC was held to be directory in as much as no consequence was
provided if the section was breached. It was held as under:
23.
It will be seen from this provision that, unlike section 34(5) and (6), if am
award is made beyond the stipulated or extended period contained in the
section, the consequence of the mandate of arbitrator being terminated is
extremely provided. This provision is in stark contrast with section 34(5) and
(6) where, as has been stated hereinabove, if the period for deciding the
application under section 34 has elapsed, no consequence is provided. This is
one more indicator that the same Amendment Act, when it provided time periods
in different situation, did so intending different consequences.”
Taking
this further, the Supreme Court in SCG Contract India Pvt Ltd
(Supra) has observed that several high courts while dealing with Order VIII
Rule 1 of Code of Civil Procedure has consistently held that, as consequences
of non- filing of written statement has clearly been elucidated, the filing of
written statement within the outer limit of 120 days from the date of service
of summons shall have to held as mandatory (Ref: Oku Tech Private Ltd
(Supra) and Maja Cosmetics (Supra).
The
Supreme Court in SCG Contract India Pvt Ltd (Supra) has further held
that the aforesaid views in Oku tech (Supra) and Maja
Cosmetics (Supra) are correct view. It will make no difference, even if
it is assumed that earlier order dated 05.12.2017 was a final order. It is held
that res judicata cannot stand in the way of an erroneous interpretation of a
statutory prohibition. What has thus clearly emerged is that what was not
provided for in the statute and in fact when filing of written statement beyond
a period of 120 days from the date of service of summons being explicitly
prohibited, a wrong order passed for taking written statement in record,
despite the prohibition cannot be taken as res judicata. Moreover, reliance placed
on Bhanu Kumar Jain (Supra) and Shaikh Salim
(Supra) relates to pre-amendment position and hence on this premise also the same
shall be of no relevance. The Supreme Court, while dealing with R.K Roja
(Supra) has held that it cannot be claimed that application under Order VII
Rule 11 of Code of Civil Procedure shall have to be decided first and
thereafter, if required, written statement could be filed. It was so, in as
much as the Supreme Court in R.K Roja (Supra) itself had observed
in para 6 as under:
“However,
we may hasten to add that the liberty to file an application for rejection
under Order 7 Rule 11 CPC cannot be made as a ruse for retrieving the lost
opportunity to file the written statement.”
The
respondent had also contended that nothing precludes the Court to invoke
inherent powers under section 151 of the Code of Civil Procedure, and it was
argued that procedural provisions as per the amendment in CCA shall not come in
the way of inherent power, else, unjust consequence may follow.
However,
the Supreme Court had rejected the contentions by referring to its own judgment
reported as Manohar Lal Chopra (Supra). The relevant portion of
the said judgment is as under:
“The
suit at Indore which has been instituted later, could be stayed in view of
Section 10 of the Code. The provisions of that section are clear, definite and
mandatory. A court in which a subsequent suit has been filed is prohibited from
proceeding with the trial of the suit in certain specified circumstances. When
there is a special provision in the Code of Civil Procedure for dealing with
the contingencies of two such suits being instituted, recourse to the inherent
power under Section 151 is not justified”.
Therefore,
it was held that clear, definite and mandatory provisions of Order V read with
Order VII Rule 1 and 10 cannot be circumvented by recourse to the inherent
power under Section 151 to do the opposite of what is stated therein.
The
aforesaid discussion, clearly reflects that beyond 120 days period from the
date of receiving summons of the suit, the written statement cannot be filed
and the judgment and decree could be pronounced forthwith. Yet another aspect
is required to be further deliberated i.e even the replication to the written
statement cannot be filed beyond 45 days of receiving written statement as per
original side rules of Delhi High Court. That said, however, the discussion
based on judicial precedents shall have to be dealt with and the same is being
done hereinafter.
REPLICATION
BEYOND 45 days: not permittEd
In Ram
Sarup Lugani Vs Nirmal Lugani & Ors (2021) 276 DLT 681(DB)
clearly stipulates that in a comemrcail suit , replication to the written
statement cannot be field beyond 30 days from the date of se4rvcie of written
statement and at the most Fifteen (15) days extension can be granted, but not
thereafter. Special Leave Petition (C) No.15142/2020 field against the Ram
Sarup Lugani (Supra) appears to have been dismissed by the Supreme
Court on 28th June 2021.
The
Delhi High Court (Original Side) Rules, 2018, which are set out below in the
context shall further reinforce the situation:
Rule
4. Extension of time for filing written
statement.--If the Court is satisfied that the defendant was prevented by
sufficient cause for exceptional and unavoidable reasons in filing the written
statement within 30 days, it may extend the time for filing the same by a
further period not exceeding 90 days, but not thereafter. For such extension of
time, the party in delay shall be burdened with costs as deemed appropriate.
The written statement shall not be taken on record unless such costs have been
paid/ deposited. In case the defendant fails to file the affidavit of
admission/ denial of documents filed by the plaintiff, the documents filed by
the plaintiff shall be deemed to be admitted. In case, no written statement is
filed within the extended time also, the Registrar may pass orders for closing
the right to file the written statement.
Rule
5. Replication.- The replication, if any, shall be
filed within 30 days of receipt of the written statement. If the Court is
satisfied that the plaintiff was prevented by sufficient cause for exceptional
and unavoidable reasons in filing the replication within 30 days, it may extend
the time for filing the same by a further period not exceeding 15 days but not
thereafter. For such extension, the plaintiff shall be burdened with costs, as
deemed appropriate. The replication shall not be taken on record, unless such
costs have been paid/ deposited. In case no replication is filed within the
extended time also, the Registrar shall forthwith place the matter for
appropriate orders before the Court. An advance copy of the replication
together with legible copies of all documents in possession and power of
plaintiff, that it seeks to file along with the replication, shall be served on
the defendant and the replication together with the said documents shall not be
accepted unless it contains an endorsement of service signed by the
defendant/his Advocate.
Rule
6. Affidavit of admission/denial of documents with
replication.-Alongwith the replication, the plaintiff shall also file an
affidavit of admission/ denial of documents filed by the defendant, without
which the replication shall not be taken on record.
Rule
7. Affidavit
of admission/ denial of documents, even if `replication not filed.-
Irrespective of whether the plaintiff files the replication or not, the
plaintiff shall be bound to file affidavit of admission/ denial of documents
filed by the defendant alongwith the written statement within the time
permissible for filing replication. In case the plaintiff fails to file the
said affidavit, the documents filed by the defendant shall be deemed to be
admitted. The Court or the Registrar, as the case be, shall exhibit documents
admitted by the parties."
In
Louis Dreyfus Company India Pvt Ltd vs Nutrilite Agro Products Pvt Ltd, CS(COMM)
538/2020 decided on 10th January, 2024, it s held as under:
7.
In terms of the Delhi High Court (Original Side) Rules, 2018, specific
timelines have been fixed for filing of written statements and replication
as contained in Rules 4 & 5 respectively. The decision in Ram
Sarup Lugani (supra) leaves no manner of doubt that the maximum
time limit available for filing of replication is 45 days. The relevant portion
of the said judgment is set out below:
"21.
A conspectus of the decisions referred to above leaves no manner of
doubt that where ever the phrase "but not thereafter" has been used
in a provision for setting a deadline, the intention of the legislature is to
treat the same as a pre-emptory provision. Thus, if Rule 15 of the DHC Rules
mandates filing of a replication within a period of 30 days reckoned from the
date of receipt of the written statement, with an additional period of 15 days
provided and that too only if the court is satisfied that the plaintiff has
been able to demonstrate that it was prevented to do so by sufficient cause or
for exceptional and unavoidable reasons, can the time for filing the
replication be extended for a further period not exceeding 15 days in any event,
with costs imposed on the plaintiff. The critical phrase "but not
thereafter used in Rule 15 must be understood to mean that even the court
cannot extend the period for filing the replication beyond the outer limit of
45 days provided in the DHC Rules. Upon expiry of the said period, the
plaintiff's right to file the replication would stand extinguished. Any other
meaning sought to be bestowed on the above provision, would make the words
"but not thereafter", inconsequential.
22.
The next contention of Mr. Mehta that the words "the Registrar shall
forthwith place the matter for appropriate orders before the court" used
in Rule 5 of the DHC Rules indicates that the court would still have the power
to accept a replication filed beyond a period of 45 days, is also untenable.
The Supreme Court has emphasized that the answer to the problem as to whether a
statutory provision is mandatory or is directory in nature, lies in the
intention of the law maker, as expressed in the law itself. The words
"replication, if any, shall be filed within 30 days of the receipt of the
written statement and further, the words "further period not exceeding 15
days, but not thereafter used in Rule 5 will lose its entire meaning if we
accept the submission made on behalf of the appellants that even if the
timeline for filing the replication cannot be extended by the Registrar, there
is no such embargo placed on the court.
23.
The court must start with the assumption that every word used in a statute, has
been well thought out and inserted with a specific purpose and ordinarily, the
court must not deviate from what is expressly stated therein. The period
granted for filing the replication under Rule 15 of the DHC Rules is only 30
days and on expiry of 30 days, the court can only condone a delay which does
not exceed 15 days over and above 30 days and that too on the condition that
the plaintiff is able to offer adequate and sufficient reasons explaining as to
why the replication could not be filed within 30 days. As observed earlier,
since the terms 'Court' and 'Registrar' have been defined in the DHC Rules,
Rule 5 requires that the court alone can extend the time to file the
replication beyond the period of 30 days from the date of receipt of the
written statement. Even the discretion vested in the court for granting
extension of time is hedged with conditions and the outer limit prescribed is
15 days. If the replication is not filed within the extended time granted, the
Registrar is required to place the matter back before the court for closing the
right of the plaintiff to file the replication."
Delay in filing admission/denial affidavit by the
defendaNt
The
CCA is in code in itself and therefore it contains certain modalities for
strict compliance and failure in adhering to such prescription leads to stern
measure. The judicial precedents are also evolving in the context. An
interesting situation emerged in a matter captioned as Mayank Gupta Vs
M/s Aditya Birla Fashion and Retail Ltd in CM (M) 178/2023 wherein the
issue before the Delhi High Court was as under:
The
application u/s 5 of Limitation Act seeking condonation of delay in filing
affidavit of admission/ denial was dismissed by the District Commercial Court
was dismissed and hence petition under article 227 of the Constitution of India
was preferred before the hon’ble Dehi High Court.
The
facts leading to the petition in brief are summarised as under:
(i)
Summons of the suit was served on the petitioner/defendant on 01.12.2021.
(ii)
The written statement along with statement of truth was filed on 21.02.2022.
(iii)
Application under Order XIII A CPC was also filed by the respondent/plaintiff
seeking summary judgment on a premise that in the absence of affidavit of
admission/denial on behalf of defendant, the plaintiff shall be entitled to
judgment and decree, since, the plaint and documents shall be deemed to have
been admitted and the process of trial shall not be necessary.
(iii)
The admission/denial affidavit was filed on 31.08.2021.
(iv)
As per the petitioner, after filing of application under Order XIII A of CPC,
the mistake of not filing admission/denial affidavit along with the written
statement was realised by the petitioner/defendant and hence it was filed.
(v)
According to the petitioner being a procedural aspect, mere non filing of
admission/denial affidavit should not be construed against the petitioner/defendant.
RELIANCE by the Petitioner
To
buttress its contentions the petitioner had placed reliance on a matter Cosco
International Pvt Ltd Vs Jagat Singh Dagar CS (Comm) 1052/2018-
rendered by Delhi High Court on 16.04.2022 wherein registry of the High Court
was directed the registry of the High Court to take affidavit of
admission/denial on record. Therefore, the impugned order should be set aside
and the trial court ought to be directed to take on record affidavit of
admission/denial filed by the petitioner while allowing the application for
condonation of delay in filing the aforesaid application.
Contention of the RespondeNt
(i)
The admission /denial affidavit was filed belatedly and there is no
prescription in law to file it beyond the statutory period of 120 days when the
written statement should mandatorily be accompanied by affidavit of
admission/denial.
(ii)
The petitioner had already preferred application under Order XIII A of CPC for
seeking summary judgment.
(iii)
The lacuna of non- filing of admission/denial affidavit in time cannot be
filled subsequently and that too when the petitioner/defendant comes to know of
filing of the application by the plaintiff for seeking summary judgment. Realising.
(iv)
The alleged realization of mistake of non- filing of admission/denial affidavit
shall not aid the petitioner/defendant in as much as the rule entailing filing
of written statement also include the obligation of filing admission/denial
affidavit.
(v) Ignorance of procedure of law is no
excuse.
(vi)
The order of trial court whereby the application for seeking condonation of delay
in filing admission/denial affidavit was rightly dismissed.
RELAINCE BY THE
RESPONDENT
(i)
M/s Ok Play Pvt India Ltd Vs M/s A.P Distributors and Anr- CM (M) No. 346/2020-Delhi
High Court
(ii
M/s Unileen Beheer Vs Balaji Action Buildwell 2019 SCC OnLine Del 8498 -Delhi
High Court
It
was held that no doubt written statement and statement of truth was filed by
the petitioner/respondent within stipulated time as prescribed under law.
However, admission/denial affidavit was not field along with written statement
which is ex facie contrary to the mandate of Order 11 Rule 1 of CCA 2015 as it
is categorially contained therein that the timelines prescribed by the amended
provisions of Code of Civil Procedure as also the CCA 2015 are strict and
mandatory and hence no leverage can be accorded to any defaulting party.
In
Mayank Gupta (Supra) the Delhi High Court has differed from the judgment in Cosco
(Supra) of the co-ordinate bench of Delhi High Court, because, the judgment in Cosco
(Supra) was rendered in the context of the “original side” jurisdiction of
Delhi High Court and the process of filing of documents in the registry of
Delhi high court in original side is not available to the District Courts. In
the district courts it is pertinent to mention that the time period provided under
the rules of 30 days from the date of
being made aware of the defects of filing of the pleadings that the party has
entitlement to file within the said time. Thus, only when it was found that the
affidavit of admission/denial having been filed within the extended period of
30 days, that the co-ordinate bench of Delhi High Court had permitted/directed
that the affidavit of admission/denial documents accompanying the written
statement. Therefore, judgment in Cosco (Supra) was found to be
not applicable in Mayank Gupta (Supra). In fact, in Mayank
Gupta (Supra) also, there is no such entitlement, since, the
petitioner/defendant waited from 21.02.2022 when he became aware about
requirement of filing admission/denial affidavit along with written statement,
still waited till 06.07.2022. Admittedly, application for condonation of delay
was filed on 31.08.2022, though, in any case, knowledge of the said requirement
was gained on 06.07.2022, when the respondent/plaintiff had filed its
application under Order XIII A of CPC for seeking summary judgment. The ld
trial court while rejecting the application for seeking condonation of delay
had placed reliance on M/s Okay Play (Supra) and Unilin
Beher B.V (Supra). Since, admission/denial affidavit was not filed
within the outer limit of 120 days, hence, the delay could not have been
condoned, rules being mandatory and does not admit of any exception.
The
petition is Mayank Gupta (supra) was accordingly dismissed by
Delhi High Court.
The
discussion based on the aforesaid judgments based on the Commercial Courts Amendment
of 2018, leading to a categorical conclusion as regards the filing of written
statement, admission denial affidavit and replication within the stipulation
time does not admit of any exception as the words couched about in the respective
rules as set out above leaves no room of doubt that the specific time line in commercial
suit has to be adhered to, without iota of doubt.
--------
Anil K Khaware
Founder &
Senior Associate
Societylawandjustice.com