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HIGH COURT OF DELHI
JUDGMENT
SH. MAYANK GUPTA ..... Petitioner
Advocates who appeared in this case:
For the Petitioner : Ms. Rahana Ahmed, Advocate
For the Respondent : Mr. Varun Sharma and Mr. Akhil B.
Kukreja, Advocates
[ The proceeding has been conducted through Hybrid mode ]
CM APP No. 5590/2023
1. This is an application seeking exemption from filing certified copies of the annexures.
2. Exemption is allowed, subject to all just exceptions.
3. Application stands disposed of. CM(M) 178/2023 & CM APP No. 5589/2023 (Stay)
4. The petitioner challenges the order dated 31.10.2022 passed in CS(COMM) 167/2022 titled ‘Aditya Birla Fashion and Retail Ltd vs Mayank Gupta’, whereby the application under Section 5 of Limitation Act, 1963 read with Section 151 of CPC, 1908 (hereinafter referred to as “CPC”) seeking condonation of delay in filing affidavit of admission/denial was dismissed.
5. Ms. Rahana Ahmed, learned counsel for the petitioner submits that the summons in the suit were served upon the petitioner/defendant on 01.12.2021. Consequent thereto, written statement alongwith the Statement of Truth was filed by the petitioner/defendant on 21.02.2022.
6. Ms. Ahmed further submits that the application under Order XIII A of CPC was filed by the respondent/plaintiff seeking summary judgment on the ground that in the absence of affidavit of admission/denial on behalf of the petitioner/defendant, the documents are deemed to have been admitted and nothing remained further for trial.
7. Learned counsel for the petitioner also submits that the affidavit of admission/denial alongwith the condonation of delay was filed on 31.08.2021. Ms. Ahmed submits that it was only on the objection raised in the application under Order XIII A of CPC filed, by the respondent/plaintiff that the petitioner/defendant realized that the affidavit of admission/denial was not accompanying the written statement so filed.
8. Learned counsel submits that having regard to the fact that the affidavit of admission/denial itself is a procedural aspect, the mere nonfiling of the same alongwith the written statement is a procedural irregularity which can always be corrected by showing sufficient cause as to why it was not filed, coupled with the fact that the affidavit of admission/denial being filed simultaneously.
9. Learned counsel for the petitioner further relies upon the judgment of ‘Cosco International Pvt Ltd vs. Jagat Singh Dugar’ rendered by this Court in CS(COMM.) 1052/2018 on 06.04.2022, to submit that this Court had considered a similar case and taking into consideration the facts as arising therein, consequently, directed the Registry of this Court to take affidavit of admission/denial on record.
10. Learned counsel also submits that in view of the aforesaid judgment, this Court may also direct the learned Trial Court to take affidavit of admission/denial filed subsequently, on record and quash the impugned order.
11. Per Contra, Mr. Varun Sharma, learned counsel for the respondent submits that though the written statement alongwith the Statement of Truth, may have been filed within the stipulated period of time, however, it was only upon the non-filing of the affidavit of admission/denial as prescribed by the CPC that the respondent/plaintiff filed its application under Order XIII A of CPC seeking summary judgment.
12. Mr. Sharma, learned counsel for the respondent submits that the submission on behalf of the petitioner/defendant that he had realized his mistake only on the filing of the application under Order XIII A of CPC is not tenable, for the reason that the Rules under which the said written statement alongwith the Statement of Truth was filed also contains the stipulation in respect of the affidavit of admission/denial as well.
13. Learned counsel submits that ignorance of procedure of law is no excuse and submits that the impugned order is reasoned and has taken into consideration the judgments passed by Coordinate Bench of Court in CM(M) No. 346/2020 ‘M/s. Ok Play Pvt India Ltd vs. M/s. A.P. Distributors and Anr. as well as in ‘Unilin Beheer B.V. vs. Balaji Action Buildwell’ reported in 2019 SCC OnLine Del 8498 Learned counsel submits that the petition therefore deserves to be dismissed.
14. This Court has considered the rival submissions as well as perused the impugned order and the judgments relied upon by learned counsel for the parties.
15. Undoubtedly, the written statement as well as the Statement of Truth on behalf of the petitioner/defendant appears to have been filed within the stipulated period of time with no objection on that score on behalf of the respondent/plaintiff.
16. However, as admitted, the affidavit of admission/denial of documents of the plaintiff was not accompanying the written statement. It is clear from the reading of Order XI Rule 1 of Commercial Courts Act, 2015 and the provisions contained therein that the timelines prescribed by the amended provisions of Code of Civil Procedure, 1908 as well as the Commercial Courts Act, 2015 are strict and mandatory and there is no question of any leverage which can be afforded to any party which defaulted thereof.
17. This Court has considered the plea of the learned counsel of the petitioner/defendant in respect of the judgment rendered by the Coordinate Bench of this Court in Cosco (Supra) and is unable to agree with the same.
18. This is for the reason that the said judgment was in the facts where the suit was filed in the “Original Side Jurisdiction” of this Court and the process of filing documents in the Registry is something which is not available so far as the District Courts are concerned. It was only 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. It was only on that basis and having found that the affidavit of admission/denial having been filed within that extended period of 30 days, that the Coordinate Bench of this Court had permitted or directed taking on record the admission/denial of the documents accompanying the written statement.
19. In the present case, however, there is no such entitlement obtaining to the petitioner/defendant since the petitioner/defendant waited from 21.02.2022 through till 06.07.2022 when he first came to know that there is an affidavit of admission/denial to be filed alongwith the written statement.
20. The reasons being put forward by Ms. Ahmed is also untenable for the reason that affidavit of admission/denial of the documents as well as the alleged condonation of delay application were, as per her own submission, filed on 31.08.2022 whereas the knowledge of not having filed the affidavit of admission/denial, admittedly, was gained on 06.07.2022 when the respondent/plaintiff filed its application under Order XIII A of CPC seeking summary judgment.
21. This Court has perused the impugned order whereby the learned Trial Court has based its reasoning on the judgments passed by the Coordinate Bench of this Court in M/s. Okay Play and Unilin Beheer B.V. (Supra) whereby the same provisions were tested and also that held that the provisions are mandatory and not having filed the affidavit of admission/denial alongwith the written statement, the affidavit as well as the written statement was not taken on record nor considered for any purposes.
22. The said judgment also considered the aspect if the affidavit of admission/denial would have been filed within the stipulated period of 120 days’ period from the date of service of summons, the delay in filing affidavit of admission/denial, before the expiry of 120 days could be condoned and the affidavit of admission/denial could be taken on record.
23. No such condition arises in the present case.
24. In that view of the matter, this Court is unable to agree with the submissions urged on behalf of the petitioner/defendant and the petition is dismissed being without merits with no order as to costs.
TUSHAR RAO GEDELA, J. MARCH 3, 2023