FRANKFINN AVIATION SERVICES PRIVATE LIMITED v. TATA SIA AIRLINES LTD.

Delhi High Court · 24 Jul 2023 · 2023:DHC:5126

Prathiba M. Singh

CS(COMM) 54/2022

2023:DHC:5126

civil petition_allowed Significant

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The Delhi High Court held that procedural defects in filing replication, such as absence of affidavit of admission/denial, can be cured within 30 days and allowed the replication to be taken on record with costs.

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CS(COMM) 54/2022
HIGH COURT OF DELHI
Date of Decision: 24th July, 2023

CS(COMM) 54/2022 and I.A. 1795/2022, 3651/2022, 3652/2022, 10407/2023
FRANKFINN AVIATION SERVICES PRIVATE LIMITED ..... Plaintiff
Through: Mr. Kapil Midha & Ms. Samiksha Gupta, Advs. (M: 9318887589)

VERSUS

TATA SIA AIRLINES LTD. ..... Defendant
Through: Ms. Kruttika Vijay, Mr. Aditya Gupta, Mr. Mukul Kochhar, Advs.

CORAM:

JUSTICE PRATHIBA M. SINGH Prathiba M. Singh, J. (Oral)

JUDGMENT

1. This hearing has been done through hybrid mode. I.A.10407/2023 (for delay)

2. This is an application filed by the Plaintiff seeking condonation of delay in filing replication. Ld. Counsel for the parties have been heard. The written statement was taken on record on 7th March, 2022. The Plaintiff filed its replication on 18th April, 2022, however, without the affidavit of admission/denial. The Registry raised objections in respect of the same on 19th April, 2022 and the Plaintiff filed the final replication on 10th May,

2022.

3. It is submitted by ld. Counsel for the Plaintiff that within the overall time of 30 days given in aggregate to remove defects by the Delhi High Court Original Side Rules, 2018 (hereinafter ‘Original Side Rules’), the Plaintiff has removed the defect of non-filing of admission/denial. He places reliance upon the judgments in COSCO India Ltd. v. Paramsukh Nirman Pvt. Ltd. 2019:DHC:3745 and COSCO International Pvt. Ltd. v. Jagat Singh Dugar 2022:DHC:1406.

4. On the other hand, ld. Counsel for the Defendant relies upon the judgment in Unilin Beheer B.V. v. Balaji Action Buildwell 2019 SCC OnLine Del 8498 to argue that once the initial replication is itself not accompanied by the admission/denial affidavit, that defect cannot be cured later as the same is mandatory. Further, it is her submission that under chapter IV, Rule 3 of the Original Side Rules, the maximum time that can be permitted to a party to refile is 7 days at a time, and the same is 30 days in case there are objections raised at multiple stages in respect of the pleading/document.

5. Heard. This Court in COSCO India Ltd. (Supra) has held that there is difference between ‘filing a document’ and ‘bringing the same on record’. Further, removal of defects has to be seen in the overall scheme of 30 days which is permitted under Chapter IV Rule 3 of the Original Side Rules. Moreover, the Court in the said judgment has considered the dictum of Unilin Beheer B.V. (supra) and held as under:

“10. However, under Chapter VII, Rule 3 of the Delhi High Court (Original Side) Rules, once a written statement is filed, the same would not be brought on record without the affidavit of admission/denial. It would be one of the defects in the written statement if it is not accompanied with the affidavit of admission/denial. For re-filing and removing defects, there is a total 30 days’ period which is available to

parties. Chapter I Rule 14 cannot be used to dispense with the mandatory requirements under the Rules, but only in respect of those rules where it is only a question of practice and procedure. The time of seven days from re-filing within the total period of 30 days would have to be considered 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. XXX

14. Under these overall circumstances, this Court holds that the written statement along with the affidavit of admission/denial would be liable to be taken on record as filing, re-filing, etc. are procedural matters which the High Court Registry follows. Broadly if the timelines are adhered to, the Court would not strike out the defence of a party, especially in a suit where recovery of such a huge amount is being sought….”

6. It is submitted by ld. Counsel for the Plaintiff that an SLP filed against the above order in Cosco India Ltd (supra) has been dismissed by the Supreme Court. The said order in Special Leave to Appeal (C) NO. 2138/2020 titled Cosco (India) Limited v. Paramsukh Nirman Pvt. Ltd. dated 31st January, 2020 is extracted below: “We are not inclined to entertain the Special Leave Petition under Article 136 of the Constitution of India. The Special Leave Petition is, accordingly, dismissed. Pending application(s), if any, stand disposed of.”

7. Having perused the judgments filed by both the parties, and taking into consideration the fact that the replication was filed by the Plaintiff within the stipulated time of 45 days, and the objections raised by the Registry have been removed within 30 days, the replication is directed to be taken on record subject to payment of Rs.10,000/- as costs to the Defendant. Let the cost be paid within two weeks.

8. Application is disposed of. CS (COMM) 54/2022 & I.As.1795/2022, 3651/2022, 3652/2022

9. List for hearing in all remaining applications on 4th December, 2023.

PRATHIBA M. SINGH JUDGE JULY 24, 2023/dk/sk

FRANKFINN AVIATION SERVICES PRIVATE LIMITED v. TATA SIA AIRLINES LTD.

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