ITD Cementation India Limited v. Indian Oil Corporation Limited & Anr.

(i) Nahar Enterprise Vs. Hyderabad Allwyn Ltd and Anr.,

(ii) Gijesh Bedi Vs. Praveen Goyal & Ors., 2012 SCC

(iii) Sunil Alagh Vs. Shivraj Puri and Anr., 2017 SCC

OnLine Del 12368 Contentions on behalf of plaintiff

6. On the other hand, on behalf of plaintiff, the impugned order dated 26th August, 2019 passed by the learned Registrar has been justified. 6.[1] Vide order dated 12th December, 2017, this Court issued summons in the present suit. Further, I.A. No. 14751/2017 of the plaintiff was allowed by this Court thereby granting ten weeks time to file additional documents, which were filed on 20th February, 2018 after serving copies to Appellant/defendant no. 1 in the suit. 6.[2] Appellant/defendant no. 1 admittedly received summons of the suit on 04th January, 2018. Written statement has been filed admittedly on 05th May, 2018, i.e. beyond 120 days i.e. on 121st day. 6.[3] It is contended that Appellant/defendant no. 1 filed I.A. No. 1654/2018 seeking extension of time to file written statement, which was allowed by this Court vide order dated 05th February, 2018. 6.[4] Plaintiff filed I.A. No. 3789/2018 on 21st February, 2018 seeking permission to file further additional documents. This Court allowed the said application on 22nd March, 2018 thereby allowing four weeks time to plaintiff to file additional documents. The said additional documents were filed by plaintiff on 19th April, 2018 after serving copies of the same to the Appellant/defendant no.1 by speed post. 6.[5] Vide order dated 22nd March, 2018, defendants were directed to file their affidavits of admission/denial within four weeks. Appellant/defendant no. 1 was specifically directed to file its written statement with affidavit of admission/denial in terms of order dated 05th February, 2018, which has not been complied with. 6.[6] The Appellant/defendant no. 1 has failed to file its affidavit of admission/denial of documents in terms of Chapter VII Rule 3 of the DHC Rules, 2018. Thus, the written statement of Appellant/defendant no. 1 cannot be taken on record. It is submitted that since the appellant has failed to file the written statement within 120 days, the same shall not be taken on record. Further, since the Appellant/defendant no. 1 has failed to file the affidavit of admission/denial of documents filed by the plaintiff, the documents filed by the plaintiff shall be deemed to have been admitted. 6.[7] On behalf of plaintiff, the following judgments have been relied upon:-

(i) Charu Agrawal Vs. Alok Kalia and Ors.,

MANU/DE/1242/2023

(ii) Ram Sarup Lugani & Ors. Vs. Nirmal Lugani and Ors.,

(iii) Union of India Vs. Popular Construction Company,

(iv) Padam Sen and Ors. Vs. State of Uttar Pradesh,

MANU/SC/0065/1960

(v) SCG Contracts India Pvt. Ltd. Vs. K.S. Chamankar

(vi) Raghunath Rai Bareja and Ors., Vs. Punjab National

(vii) Manohar Lal Chopra Vs. Rai Bahadur Rao Raja Seth

(viii) Vinod Seth Vs. Devinder Bajaj and Anr., 2010 (8) SCC 1

(ix) Odeon Builders Pvt. Ltd. Vs. NBCC (India) Limited, judgment dated 31st October, 2019 in CS (COMM) NO. 1261/2018

(x) Chief Forest Conservator (Wildlife) & Ors. Vs. Nisar

(xi) Iridium India Telecom Ltd. Vs. Motorola Inc., AIR 2005

(xii) Printpak Machinery Limited Vs. M/s. Jay Kaay Paper

(xiii) Akash Gupta Vs. Frankfinn Institute of Air Hostesses,

(xiv) P. Radha Bai and Ors. Vs. P. Ashok Kumar and Anr,

(xv) System Ari India Private Limited Vs. ETA Engineering

(xvi) Gulf DTH FZ LLC Vs. DishTV India Ltd. & Ors., 2016

(xvii) Oku Tech Private Limited Vs. Sangeet Agarwal and Ors.

2016 SCC OnLine Del 6601 (xviii)Unilin Beheer BV Vs. Balaji Action Buildwell, 2019 SCC OnLine Del 8498 Analysis and Findings of court

7. I have heard learned counsel for the parties and have perused the record.

8. The issues to be decided by this Court are two-fold. Firstly, whether the written statement filed on behalf of Appellant/defendant no. 1 has been filed within the limitation of statutory period of 120 days. Secondly, whether the written statement filed on behalf of Appellant/defendant no.1 can be taken on record, when admittedly affidavit of admission/denial of documents has not been filed along with the same.

9. Scrutiny of the pleadings and documents on record, reveals that in the present case summons were served upon the Appellant/defendant no. 1 on 04th January, 2018. Thereafter, the Appellant/defendant no. 1 filed an application seeking extension of time for filing written statement, which was allowed by this Court vide order dated 05th February, 2018. Subsequently, with the leave of this Court, plaintiff filed additional documents on 20th February, 2018, which were served upon the Appellant/defendant no. 1 herein on 20th February, 2018 itself.

10. Thereafter, plaintiff filed another application for filing further additional documents. The said application for filing further additional documents was allowed by this Court vide order dated 22nd March, 2018 and plaintiff was directed to file the second set of additional documents within four weeks of the passing of the said order. Thus, further additional documents were filed on behalf of the plaintiff on 19th April, 2018, which were served upon Appellant/defendant no. 1 on 19th April, 2018. Thereafter, written statement was filed by Appellant/defendant no. 1 on 05th May, 2018.

11. As regards service of summons, holding that it is obligatory to serve copy of plaint and other documents appended thereto, Supreme Court in the case of Nahar Enterprises Vs. Hyderabad Allwyn Ltd. and Another[2], has held as under:-

12. Thus, it is clear that a plaint is required to be accompanied by full set of documents as filed on behalf of the plaintiff for service upon the defendants. In the present case, though the summons were served upon the Appellant/defendant no. 1 on 04th January, 2018, the same cannot be considered to be a complete service. This is for the reason that additional documents were filed by plaintiff firstly on 20th February, 2018 and secondly on 19th April, 2018. Therefore, only when complete set of documents were supplied to the Appellant/defendant no. 1 by the plaintiff on 19th April, 2018 that the service to Appellant/defendant no. 1 was completed.

13. Similarly, in the case of Sunil Alagh Vs. Shivraj Puri and Anr.3, this Court has held in categorical terms that service in the suit cannot be said to be complete unless complete paper book of the suit is supplied to defendants. Thus, it has been held as follows:

14. In view of the aforesaid discussion, it is evident that the service can be said to be completed upon Appellant/defendant no. 1 only on 19th April, 2018 when further additional documents filed by plaintiff were served upon it. In view thereof, the written statement filed on behalf of Appellant/defendant no. 1 on 05th May, 2018 was within limitation.

15. This brings us to the second issue that arises in the present matter whether in the absence of the affidavit of admission/denial of documents, the written statement filed on behalf of Appellant/defendant no. 1 can be taken on record.

16. As regards filing of affidavit of admission/denial of documents, Chapter VII, Rule 3 of the DHC Rules, 2018 states in unequivocal terms that without an affidavit of admission/denial of documents of plaintiff, written statement of defendants shall not be taken on record. The said Rule reads as under:-

17. On the other hand, Order XI Rule 4(1) of the CPC as amended by the Commercial Courts Act, 2015 provides that each party shall submit a statement of admission/denial of documents of all documents disclosed, within 15 days of the completion and inspection or any later date as fixed by the Court. Order XI Rule 4(5) of the CPC as amended by the Commercial Courts Act further provides that an affidavit in support of the statement of admissions and denials shall be filed confirming the correctness of the contents of the statement. Order XI Rule 4(1) and Rule 4(5) of CPC as amended by Commercial Courts Act, 2015 are reproduced as hereunder:- “ORDER XI DISCLOSURE, DISCOVERY AND INSPECTION OF DOCUMENTS

4. Admission and denial of documents.—(1) Each party shall submit a statement of admissions or denials of all documents disclosed and of which inspection has been completed, within fifteen days of the completion of inspection or any later date as fixed by the court.

XXXXX (5) An affidavit in support of the statement of admissions and denials shall be filed confirming the correctness of the contents of the statement.”

18. Thus, on the one hand Chapter VII Rule 3 of the DHC Rules, 2018 requires that affidavit of admission/denial shall be filed along with the written statement, without which the written statement shall not be taken on record. While on the other hand, Order XI Rule 4 of CPC as amended by the Commercial Courts Act provides that it is only when disclosure and inspection of the disclosed documents is complete, that the affidavit of admission/denial of documents is to be filed. However, it is no longer res integra that if there is a conflict between the provisions of the DHC Rules, 2018 and the CPC, then the DHC Rules, 2018 will have an overriding effect on the CPC.

19. Thus, Division Bench of this Court in the case of Ram Sarup Lugani and Another Vs. Nirmal Lugani and Others[4], has categorically held that the DHC Rules, 2018 will prevail over the CPC. It has been held as follows:-

“28. In our opinion, reliance placed by Mr. Mehta on Desh Raj (supra), is also misplaced. No doubt, the Supreme Court has held that a reading of proviso 2 appended to Rule 1 of Order VIII would show that the said Rule is only directory and not mandatory, ultimately the Supreme Court has refused to condone the delay in that case. In fact, the said decision is not applicable to the facts of this case for the reason that in the said judgment, there was no occasion to deal with the scope and effect of Rule 5 of Chapter VII of the DHC Rules. In any event, the DHC Rules will have an overriding effect on the CPC. Notably the Code does not provide for filing of any replication. Order VI, Rule 1 describes “pleadings” to mean plaint or written statement. It is the Delhi High Court (Original Side) Rules, 2018 that provides a time limit for filing the replication and since the said Rules regulate the procedure, the same will have to prevail over the Code. We are in complete agreement with the view taken by the Division Bench of this court in DDA v. K.R. Builders (P) Ltd., reported as (2005) 81 DRJ 708 and relied on in HTIL Corporation, B.V v. Ajay Kohli, reported as (2006) 90 DRJ 410, where it was observed as under: “6. The question as to whether the CPC or the Original Side Rules will apply was considered by a Division Bench of this court in the recent case of DDA v. K.R. Builders P. Ltd., (2005) 81 DRJ 708 (DB). The finding of the Division Bench supported the view of the learned defence counsel that suits filed on the original side of this court would be governed by the rules framed by the High Court to the exclusion of the provisions of the CPC wherever the field is occupied by these Rules and that this court has the power to extend the time for filing the written statement even beyond 90 days. However, the Division Bench also clarified that Rule 3, as it then stood, of Chapter IV of the Delhi High Court (Original Side Rules) does not contemplate unending extensions to be granted on the asking. Rule 3 provided as under:

8. In view of this amendment, the Delhi High Court (Original Side Rules) give the same time schedule for filing a written statement. Written statement, therefore, can be filed within 30 days and thereafter on sufficient ground for such extension being shown on an affidavit but such extension shall not be later than 90 days from the date of service.”

29. In Print Pak Machinery Ltd. v. Jay Kay Papers Converters, reported as AIR 1979 Del 217, answering a reference placed before it for reconciling the consistency between the scheme of Order 37 of the CPC, as amended in 1976 and the provisions Chapter XV of the Delhi High Court (Original Side) Rules, 1967 that deals with “summary suits”, a Full Bench of this court held that the Rules will take a precedence over the Code and observed as under:—

9. These propositions are old and well-established. In Newab Behram Jung v. Haji Sultan Ali Shustry, ILR 27 Bom 572 (1) it was held that, in view of section 129, a rule in the Code did not apply as it was inconsistent with a rule in the Bombay High Court Rules. Similarly, in Virupaksha Rao Naidu v. M. Ranganayaki Ammal, AIR 1925 Mad 1132 (2), it was said: „Section 129 of the Code gives the High Court the power to make rules, regulating the procedure of the Original Side and nothing in the Code will affect such rules. The effect is that if the rules of the High Court, Original Side, and the Code are inconsistent, the rules prevail.‟ Many cases from Calcutta hold the same: Umeshchandra Banerji v. Kunjilal Biswas, AIR 1930 Cal 685 (3), Gowal Das Sidany v. Luchmi Chand Jhawar, AIR 1930 Cal 324 (4); In re: Ram Dayal De, AIR 1932 Cal 1 (5); Shaw & Co. v. B. Shamaldas & Co., AIR 1954 Cal 369 (6) and Manickchand Durgaprasad v. Pratabmull Rameswar, AIR 1961 Cal 483 (7). And, so does the High Court of Allahabad: Mool Chand v. Kamta Prasad, AIR 1961 All 595 (8).

11. The conclusion thus drawn from section 129 can also be reached from section 4(1) of the Code, though not in the manner that was suggested in argument. Section 4(1) of the Code provides that: „In the absence of any specific provision to the contrary, nothing in this Code shall be deemed to limit or otherwise affect any special or local law now in force or any special jurisdiction or power conferred, or any special form of procedure prescribed, by or under any other law for the time being in force.‟ It has been held that rules made by a High Court or the Supreme Court to regulate their procedure and practice are a „special law‟ as they deal with a particular subject: The Union of India v. Ram Kanwar, AIR 1962 SC 247 (11); Punjab Cooperative Bank Ltd., Lahore v. Official Liquidators, Punjab Cotton Press Co. Ltd. (in liquidation), AIR 1941 Lah 257 (12) and The Deities of Sri. Audinarayana Swamy and Anjenayaswami Temples of Donepudi v. R. Hanumacharyulu, AIR 1962 AP 245 (13). Nevertheless, the Original Side Rules of Delhi High Court would not be protected by section 4(1) of the Code. Only those „special laws‟ are saved which are „now in force‟, which means 1908. But, they are a „special form of procedure prescribed‟ by or under a law „for the time being in force‟, and would be covered on that account. There is no „specific provision to the contrary‟ and the result is that nothing in the Code „shall be deemed to limit or otherwise affect‟ anything in the Original Side Rules.”

20. Similar view that Delhi High Court Rules shall prevail over the CPC was taken by the Division Bench of this Court in the case of Akash Gupta Vs. Frankfinn Institute of Air Hostess[5].

21. It is settled law that in case of a conflict between a Special law and a General law, the Special law must always prevail. Supreme Court in the case of Iridium India Telecom Ltd Vs. Motorola Inc[6]., has held as follows:-

48. Finally, it was argued by Mr Jethmalani that the Letters Patent, and the rules made thereunder by the High Court for regulating its procedure on the original side, were subordinate legislation and, therefore, must give way to the superior legislation, namely, the substantive provisions of the Code of Civil Procedure. There are two difficulties in accepting this argument. In the first place, Section 2(18) CPC defines “rules” to mean “rules and forms contained in the First Schedule or made under Section 122 or Section 125”. The conspicuous absence of reference to the rules regulating the procedure to be followed on the original side of a chartered High Court makes it clear that those rules are not “rules” as defined in the Code of Civil Procedure, 1908. Secondly, it is not possible to accept the contention that the Letters Patent and rules made thereunder, which are recognised and specifically protected by Section 129, are relegated to a subordinate status, as contended by the learned counsel. We might usefully refer to the observations of the Constitutional Bench of this Court in P.S. Sathappan v. Andhra Bank Ltd. [(2004) 11 SCC 672: JT (2004) 8 SC 464] With reference to Letters Patent, this is what the Constitution Bench said: (SCC p. 709, para 32) “32[148]. It was next submitted that clause 44 of the Letters Patent showed that Letters Patent were subject to amendment and alteration. It was submitted that this showed that a Letters Patent was a subordinate or subservient piece of law. Undoubtedly, clause 44 permits amendment or alteration of Letters Patent, but then which legislation is not subject to amendment or alteration? CPC is also subject to amendments and alterations. In fact it has been amended on a number of occasions. The only unalterable provisions are the basic structure of our Constitution. Merely because there is a provision for amendment does not mean that, in the absence of an amendment or a contrary provision, the Letters Patent is to be ignored. To submit that a Letters Patent is a subordinate piece of legislation is to not understand the true nature of a Letters Patent. As has been held in Vinita Khanolkar case [Vinita M. Khanolkar v. Pragna M. Pai, (1998) 1 SCC 500: JT (1997) 9 SC 490] and Sharda Devi case [Sharda Devi v. State of Bihar, (2002) 3 SCC 705: JT (2002) 3 SC 43] a Letters Patent is the charter of the High Court. As held in Shah Babulal Khimji case [Shah Babulal Khimji v. Jayaben D. Kania, (1981) 4 SCC 8: (1982) 1 SCR 187] a Letters Patent is the specific law under which a High Court derives its powers. It is not any subordinate piece of legislation. As set out in aforementioned two cases a Letters Patent cannot be excluded by implication. Further it is settled law that between a special law and a general law the special law will always prevail. A Letters Patent is a special law for the High Court concerned. The Civil Procedure Code is a general law applicable to all courts. It is well-settled law, that in the event of a conflict between a special law and a general law, the special law must always prevail. We see no conflict between the Letters Patent and Section 104 but if there was any conflict between a Letters Patent and the Civil Procedure Code then the provisions of the Letters Patent would always prevail unless there was a specific exclusion. This is also clear from Section 4 of the Civil Procedure Code which provides that nothing in the Code shall limit or affect any special law. As set out in Section 4 CPC only a specific provision to the contrary can exclude the special law. The specific provision would be a provision like Section 100-A.”” (Emphasis Supplied)

22. In view of the aforesaid, it is clear that the provisions of Rule 3 of Chapter VII of DHC Rules, 2018 that require that affidavit of admission/denial of documents shall be filed along with the written statement, without which the written statement shall not be taken on record, shall have an overriding effect over the provisions of Order XI of CPC as amended by the Commercial Courts Act. Therefore, in the absence of the affidavit of admission/denial of documents, the written statement filed on behalf of the Appellant/defendant no. 1 cannot be taken on record.

23. In view of the law as discussed hereinabove, it is clear that the DHC Rules, 2018, being a Special Law will prevail over the CPC, as amended by the Commercial Courts Act. The Commercial Courts Act merely inserts amendments to the CPC. The CPC being a General Rule will not prevail over the DHC Rules, 2018, which is in the nature of a Special Law.

24. It is to be noted that Section 7 of the Delhi High Court Act, 1966 empowers this Court to make its own Rules with respect to practice and procedure for exercise of its Ordinary Original Civil jurisdiction. Further, Section 129 of the CPC also empowers the High Courts to make Rules to regulate procedures of its Original Civil Jurisdiction, as it deems fit. Thus, the DHC Rules framed by this Court shall override and prevail over the provisions of CPC.

25. Accordingly, for the purposes of issues concerning written statement, Rules and Chapters of the DHC Rules would be applicable and not Orders and Rules of CPC. Therefore, plea of the Appellant/defendant no. 1 that the provisions under CPC, as amended as per the Commercial Courts Act would govern the filing of the written statement over the DHC Rules, is untenable in law.

26. Since the Appellant/defendant no. 1 has failed to file the affidavit of admission/denial of documents in terms of Chapter VII Rule 3 of DHC Rules, 2018, the written statement filed on its behalf cannot be taken on record. Further, since Appellant/defendant no. 1 has failed to file the affidavit of admission/denial of documents, the documents filed by the plaintiff shall be deemed to be admitted.

27. This Court in the case of Unilin Beheer B.V. Vs. Balaji Action Buildwell[7], has held that in the event of written statement being filed without affidavit of admission/denial of documents, the written statement 2019 SCC OnLine Del 8498 shall not be taken on record and documents filed by the plaintiff shall be deemed to be admitted. Thus, it has been held as follows:-

28. Similar view has been taken by this Court in the case of Odeon Builders Pvt. Ltd. Vs. NBCC (India) Limited[8] and Mayank Gupta Vs. Aditya Birla Fashion and Retail Ltd[9], wherein it has been reiterated that when affidavit of admission/denial of documents has not been filed along with the written statement, the written statement cannot be taken on record.

29. This Court notes that the affidavit of admission/denial of documents has not been filed by Appellant/defendant no. 1 even till date. Rather, it is submitted that the affidavit of admission/denial of documents is ready with the Appellant/defendant no. 1, however, since documents have been denied being illegible, the filing of the same shall serve no purpose. This clearly shows that it is not even the case of the Appellant/defendant no. 1 that affidavit of admission/denial of documents has been filed subsequently. Thus, it is clear that no affidavit of admission/denial of documents has been

2023 SCC OnLine Del 1485 filed by the Appellant/defendant no. 1 till date. Therefore, the written statement filed on behalf of Appellant/defendant no. 1 has rightly been taken off the record.

30. Filing of application being I.A. No. 6861/2018 for modification of order of this Court directing the appellant/defendant no.1 to file affidavit of admission/denial along with the written statement or any other similar application on behalf of Appellant/defendant no.1, cannot absolve its liability cast under Chapter VII Rule 3 of the Delhi High Court Rules, 2018 to file affidavit of admission/denial of documents along with the written statement.

31. In view of the detailed discussion as hereinabove, no merit is found in the present appeal. The same is accordingly dismissed, along with the pending I.A. 15132/2019.

32. List for directions before the Roster Bench on 20th October, 2023.

JUDGE OCTOBER 06, 2023/ak/c