Full Text
HIGH COURT OF DELHI
Date of Decision: 06.08.2024
RADHA PHOOL FIN-INVESTMENTS PVT. LTD. .....Plaintiff
Through: Mr.Nishant Datta, Mr.Pradeep Bhardwaj, Mr.Chirag Rathi, Mr.Kunal Sejwal, Advs.
Through: Ms.Renuka Arora, Adv.
JUDGMENT
1. This application has already been disposed of vide Order dated 24.02.2022 of this Court. Hence, the same should not be listed in future. I.A. 6337/2022
2. This application has been filed by the defendant praying for condonation of delay of 87 days in filing of the appeal, that is, O.A. 14/2022.
3. For the reasons stated in the application, the delay in filing the appeal is condoned.
4. The application stands disposed of. O.A. 14/2022
5. This appeal has been filed by the defendant challenging the Order dated 21.12.2021 passed by the learned Joint Registrar (Judicial) (hereinafter referred to as ‘Impugned Order’), dismissing the application, that is, I.A.1466/2019, filed by the defendant seeking condonation of delay in filing the written statement. Factual Background:
6. Before adverting to the submissions of the learned counsels for the parties, brief chronological events giving rise to the appeal are given as under: a) It is not disputed that the defendant was served with the summons of the Suit on 22.09.2018; b) The defendant filed its written statement on 15.01.2019 albeit without any affidavit of admission/denial of the documents filed by the plaintiff; c) The defects were duly marked in the written statement and same was filed on 15.02.2019 by the defendant, however, again without any affidavit of admission/denial of the documents; and, d) The affidavit of admission/denial of the documents was finally filed by the defendant on 21.02.2019, that is, beyond the period of 120 days of service of summons. The maximum extendable period of 120 days having expired on 19.01.2019.
7. The learned Joint Registrar (Judicial), placing reliance on the judgment of the Supreme Court in SCG Contracts (India) (P) Ltd. v. K.S. Chamankar Infrastructure (P) Ltd. & Ors., (2019) 12 SCC 210 and of this Court in Unilin Beheer B.V. v. Balaji Action Buildwell, 2019 SCC OnLine Del 8498 has held that the period of 120 days of filing of the written statement is sacrosanct and cannot be extended. It was further held that the written statement, though filed, would be deemed to have not been filed in case the affidavit of admission and denial of the documents has not been filed alongwith it. Even for the affidavit of admission/denial of the documents, the prescribed timeline cannot be extended and would remain the same as is prescribed for the written statement. The learned Joint Registrar (Judicial) further held as under: “......if the written statement has been filed within 120 days but without the affidavit of admission/denial, non-filing of affidavit of admission/denial is only a defect, and if this defect is cured within the prescribed period of 30 days, the written statement and affidavit of admission/denial would be deemed to have been filed within prescribed statutory period and can be taken on record.”
8. The learned Joint Registrar (Judicial) has held that as the affidavit of admission/denial of the documents was filed beyond the period of 120 days, and even beyond the prescribed period of 30 days for the removal of the objection, hence, the written statement cannot be taken on record.
9. Aggrieved of the above finding, the defendant has filed the present appeal. Submissions of the learned counsel of the appellant/defendant:
10. The learned counsel for the appellant/defendant, placing reliance on the Judgments of this Court in COSCO (India) Ltd. v. Paramsukh Nirman (P) Ltd., 2019 SCC OnLine Del 9633 (hereinafter referred to as ‘COSCO-I’) and COSCO International (P) Ltd. v. Jagat Singh Dugar, 2022 SCC OnLine Del 1113 (hereinafter referred to as ‘COSCO-II’), submits that once the written statement is filed, albeit without an affidavit of admission/denial of the documents, the rigors of the timeline for filing of the written statement would no longer apply, because it would only be a matter of removing a defect in filing of such written statement.
11. She submits that the defect for non filing of the affidavit of admission/denial of the documents was only later given by the Registry and the same was duly removed within the prescribed period. There was no insistence by the Registry of this Court on an application by the defendant for condonation of delay in re-filing of the written statement with the affidavit of admission/denial of the documents. She submits that, therefore, in view of the above Judgments, the written statement ought to be taken on record. Submissions of the learned counsel of the respondent/plaintiff:
12. On the other hand, the learned counsel for the plaintiff/respondent in the appeal, placing reliance on the Judgment of this Court in Unilin Beheer B.V. (supra), submits that this Court has held that to give full effect to the provision of Chapter VII, Rule 3 of the Delhi High Court (Original Side) Rules, 2018 (in short, ‘Delhi High Court Rules’), it must be held that the written statement filed without the affidavit of admission/denial of the documents shall be deemed to have not been filed, and documents filed by the plaintiff shall be deemed to have been admitted by the defendant.
13. He submits that therefore, in the present case, the written statement is deemed not to have been filed till 21.02.2019, which is, beyond the period of 120 days from the receipt of the summons by the defendant. Analysis and findings:
14. I have considered the submissions made by the learned counsels for the parties.
15. This Court in Unilin Beheer B.V. (supra), while considering an issue as to whether the written statement filed without the affidavit of admission/denial of the documents can be taken on record, held as under:
read together have the effect of providing that on non-filing of affidavit of admission/denial with written statement, though the written statement has to be read but the documents of plaintiff deemed to be admitted. However to hold so, would tantamount to rendering otiose the words “……without which the written statement shall not be taken on record” in Rule 3 supra and negate the bar in Rule 3 to taking the written statement on record if unaccompanied with an affidavit of admission/denial of documents.
26. It is the settled rule of statutory interpretation that interpretation which renders otiose any part of a statute, should be avoided.
27. On the contrary the effect of holding that in such a situation, the written statement shall be deemed to have been not filed and the documents filed by the plaintiff deemed to be admitted, would allow full play to both Rules, without making any part thereof otiose. On further consideration, no inconsistency/contradiction is found in the two Rules. This interpretation is also in consonance with the legislative intent. xxx
29. To, inspite of aforesaid changes in Rules hold, that in such a situation the written statement shall be read though the documents filed by the plaintiff deemed to be admitted, has the potential of resulting in anomalous situation. The senior counsel for the plaintiff has canvassed that though the plaintiff did not file affidavit of admission/denial of documents along with the written statement to the Counter Claim but has in the written statement to the Counter Claim, dealt with the documents. Holding, that the written statement containing a denial of documents will be read, would come in the way of giving full effect to the deemed admission of the documents provided for in Rule 4, as happens under Order XII Rule 2A supra of CPC and undo the effect of the new Rules. xxx
32. It is also deemed appropriate to clarify that what has been held by the Supreme Court in SCG Contracts India Pvt. Ltd. supra qua filing of the written statement would equally apply to filing of the affidavit of admission/denial of documents and time for filing thereof also cannot be extended beyond the maximum permitted.”
16. In Cosco-I (supra), this Court while considering the question as to whether a written statement filed without an affidavit of admission/denial of the documents, which is later filed, can be taken on record or not, and being cognizant of the Judgment of this Court in Unilin Beheer B.V. (supra), explained the position of law by holding as under:
as a matter of practice and procedure in the present case inasmuch as there is a fundamental difference between the „filing of the written statement‟ along with the affidavit of admission/denial and „bringing the same on record‟. If the affidavit of admission/denial is not accompanying the written statement, however, upon the Registry pointing out the said defect, the same can be cured within 30 days. If the said defect is cured, it cannot be held that the written statement and the affidavit of admission/denial cannot be brought on record.
11. While the timelines for filing the written statement within 120 days, are absolutely mandatory, removal of defects has to be seen in the overall period of 30 days which is permitted under Rule 3 of Chapter IV. In the present case, the first filing was on 15th January, 2019, the second filing was on 25th January, 2019 and the final filing was on 15th February, 2019. The time of 120 days expired only on 22nd January 2019, thus the written statement was filed within the 120 days period. The defects, which were pointed out by the Registry i.e. not filing of admission/denial affidavit was cured within the broad frame work of Chapter IV, Rule 3 i.e. within 30 days of the initial filing of the written statement.
12. Mr. Asheesh Jain, Ld. counsel has rightly pointed out that as per Unilin Beheer B.V. (supra), the time period for filing of admission/denial affidavit which is 120 days is not extendable as per para 32 of the said judgment. The purpose of admission/denial of documents is for a party to take a stand as to whether the documents of the Plaintiff are being admitted or denied. The written statement sets out the fundamental defence of the Defendant, and the affidavit of admission/denial is merely a notation of the stand of the Defendant, which is expected to be contained in the written statement. In the present case, the written statement having been filed within the 120 days' period, the stand of the Defendant in respect of the documents has already come on record. What is only not filed is a chart in the form provided specifically mentioning as to whether there is admission or denial of the documents. In the facts of the present case, the Court does not deem it appropriate to interfere in the order of the Joint Registrar. It is also relevant to point out that the replication has also been filed by the Plaintiff along with the affidavit of admission/denial. Both have been filed on 27th July, 2019.”
17. In Cosco-II (supra), another learned Single Judge of this Court, again considering the above issue and also upon taking note of the above referred judgments, reiterated as under:
16. For clarity, it is reiterated that what Order V Rule 1(1) and Order VIII Rule 1 CPC provide is the outer time-limit for filing of the written statement of defence. The filling by the defendant of an affidavit of admission/denial of the plaintiff's documents, is a separate requirement under Chapter VII Rule 3 and 4 of the Delhi High Court (Original Side) Rules, 2018; and the consequence for not filing such affidavit is that the written statement shall not be taken on record and that the plaintiff's documents shall be deemed to be admitted by the defendant. However, the filing of a written statement within the prescribed time but without an accompanying affidavit of admission/denial of documents, does not amount to non-est filing, since it cannot be said that nothing was filed at all. It would, however, amount to a defect, that is required to be cured after it is brought to the attention of the party by the Registry. Chapter VII Rule 3 only bars taking on record a written statement that is filed without an accompanying affidavit of admission/denial of documents. Filing of the written statement and it being taken on record are two separate and distinct matters.”
18. From the above, it would be evident that the outer time for filing of the written statement along with the affidavit of admission/denial of the documents, including the period by which the delay in filing the same can be condoned, is 120 days from the date of the receipt of the summons by the defendant and the said time limit is sacrosanct. A delay beyond 120 days cannot be condoned by the Court. However, where the written statement is filed albeit without the affidavit of admission/denial, it is merely a defect which must be thereafter cured in terms of the Chapter IV, Rule 3 of the Delhi High Court Rules and within the time prescribed therefor.
19. In the present case, the Registry of this Court has not raised any objection for non-removal of the defects in the written statement within the time prescribed in Chapter IV, Rule 3 of the Delhi High Court Rules. In terms of the Judgments of this Court in Cosco-I (supra) and Cosco-II (supra), therefore, the written statement ought to have been taken on record once the defects pointed out in the filing of the written statement, including filing of the affidavit of admission/denial of documents, had been removed by the defendant within the period prescribed by the Registry of this Court. Conclusion:
20. The Impugned Order therefore cannot be sustained and is set aside.
21. The written statement alongwith affidavit of admission and denial of the documents filed by the defendant is taken on record. CS(COMM) 1053/2018
22. The replication, if any, shall be filed by the plaintiff within the prescribed period.
23. The parties shall file the Joint Schedule of Documents within two weeks thereafter.
24. The learned counsels for the parties submit that the present suit is connected with CS(COMM) 1051/2018 and CS(COMM) 1052/2018, which are listed before the learned Joint Registrar (Judicial) on 9th October, 2024.
25. The present Suit shall therefore be listed alongwith the abovementioned Suits on 9th October, 2024 before the learned Joint NAVIN CHAWLA, J AUGUST 6, 2024/Arya/VS Click here to check corrigendum, if any