South Delhi Municipal Corporation v. Delhi Gurgaon Super Connectivity Limited & Ors.

1. The present appeal filed by the defendant No. 2 is directed against an order of the learned Joint Registrar dated 09.09.2020, by which defendant No.2’s right to file a written statement was closed.

2. The facts, in so far as they are relevant for the purposes of the present appeal, are as follows:a. The plaintiff, South Delhi Municipal Corporation, instituted the suit for recovery of ₹15,73,95,405/-, alongwith pendente lite and future interest, on 25.02.2017. b. Summons were served upon defendant No. 2, pursuant to which it first entered appearance on 25.05.2017 and submitted before the learned Joint Registrar that it did not receive a copy of the documents. The documents were supplied to it on the same date by learned counsel for the plaintiff. Defendant No.2 was also granted an opportunity to the file the written statement. c. No written statement was filed within the period of 30 days, as granted by the Code of Civil Procedure, 1908 [“CPC”] and the Delhi High Court (Original Side) Rules, 2018 [“Original Side Rules”], but the defendant No. 2 made an application under Order VII Rule 11 of the CPC for rejection of the plaint [I.A. No. 7663/2017]. It appears from the record that the said application was first filed on 03.07.2017. Defendant No. 2 also sought a direction therein for exempting it from filing of the written statement until the final adjudication of the application. Notice in this application was issued on 14.07.2017. d. By various further orders of the learned Joint Registrar, commencing with order dated 29.08.2017, the submission of learned counsel for the plaintiff was recorded that the opportunity to file the written statement by defendant No. 2 be closed. The submission of learned counsel for defendant No. 2 that the written statement has not been filed in view of the pendency of its application under Order VII Rule 11 of the CPC [I.A. 7663/2017] was also recorded. For this purpose, defendant No. 2 relied upon judgments of the Supreme Court in Saleem Bhai vs. State of Maharashtra[1] and R.K. Roja vs. U.S. Rayudu[2]. Although the order dated 29.08.2017 records these submissions, neither the right of defendant No. 2 to file the written statement was closed nor were the aforesaid submissions accepted. e. By a further order dated 15.12.2017, the aforesaid submissions were once again noted and defendant No. 2 was directed to file its written statement “in accordance with law”. f. By an order dated 20.03.2018, the learned Joint Registrar once again noted the aforesaid submission and directed that the matter be listed before the Court. g. I.A. 7663/2017 was ultimately disposed of by order dated 28.01.2020 by the learned Joint Registrar by treating it as an application under Order I Rule 10 of the CPC. It was held that defendant No. 2 is not liable to be deleted from the array of parties. Having so held, the learned Joint Registrar passed the following directions in the suit:- “Written statement, documents, if any and affidavit for admission/denial of documents be filed by defendant No.2 in accordance with law. Plaintiff shall file replication and affidavit for admission/denial of documents within two weeks thereafter. List for completion of pleadings and marking of exhibits to the documents on 18.03.2020.” h. The aforesaid order was assailed by defendant No. 2 in O.A. 31/2020. The appeal was dismissed on 25.02.2020, without modification of the order of the learned Joint Registrar. i. By the impugned order dated 09.09.2020, the learned Joint written statement recording that it was served long back and had failed to file its response to the suit instituted by the plaintiff. j. Defendant No. 2 ultimately filed its written statement on 17.10.2020, alongwith an application for condonation of delay [I.A. 9720/2020]. By an order of the Court dated 22.10.2020, defendant No. 2 was permitted to withdraw the said application with liberty to file a chamber appeal against the order dated 09.09.2020. It is pursuant to this liberty that the petitioner has filed the present appeal and I.A. 10180/2020 for condonation of delay in filing of the appeal.

3. Mr. Neeraj Malhotra, learned Senior Counsel for defendant NO. 2/appellant, relies upon the judgments of the Supreme Court in Saleem Bhai[3] and R.K. Roja[4] to submit that during the pendency of I.A. 7663/2017, defendant No. 2 ought not to have been directed to file its written statement. He further submits that by order dated 28.01.2020, affirmed by the order of the Court dated 25.02.2020, the learned Joint Malhotra submits that, under Chapter VII Rule 4 of the Original Side Rules, a defendant is granted time of 30 days from issuance of summons, which is extendable by a maximum period of 90 days, for filing a written statement. According to him, the intervention of the COVID-19 pandemic further prevented defendant No. 2 from filing the written statement within the aforesaid time. He cites the order of the Supreme Court dated 10.01.2022 in Suo Moto Writ Petition (Civil) 3/2020, passed in the wake of the pandemic, to submit that the maximum condonable period stood extended and this Court may take the written statement filed on 17.10.2020 on record in the suit, subject to such orders of costs as the Court considers it appropriate.

4. Mr. Rakesh Mittal, learned counsel for the plaintiff, on the other hand, submits that summons were served upon defendant No. 2 prior to 25.05.2017 and a complete set of documents were also handed over on the said date. In these circumstances, he submits that the time granted to defendant No. 2 for filing of the written statement started running, at best, on 25.05.2017 and could not be extended by the mere Supra (note 1). Supra (note 2). filing of I.A. 7663/2017. He submits that, although a specific prayer was made in the said application for enlargement of time for filing the written statement, no such order was passed by the learned Joint 7663/2017, the learned Joint Registrar only permitted filing of the written statement, documents, if any, and affidavit of admission/denial “in accordance with law”. According to Mr. Mittal, the time for filing the written statement had already expired much prior to the order dated 28.01.2020, and defendant No. 2, therefore, suffered from a legal disability against filing of its written statement thereafter. He points out that, despite the specific prayer for this purpose in O.A. NO. 31/2020, the Court did not extend the time granted for filing of the written statement. According to Mr. Mittal, the filing of I.A. 9720/2020, seeking condonation of delay of 1209 days in filing of the written statement, itself demonstrates that defendant No. 2 was aware of the belated filing.

5. Having heard learned counsel for the parties, I am of the view that, having regard to the entirety of the facts and circumstances of the case, defendant No. 2 is entitled to the relief sought in the present appeal.

6. Turning first to the application for condonation of delay, it appears that defendant No.2 first sought condonation of delay in filing the written statement by way of I.A. 9720/2020. The present appeal has been filed only after withdrawal of the said application. The delay in filing of the appeal is, therefore, condoned.

7. On the merits of the appeal, Mr. Mittal is right in submitting that summons and documents were duly served upon defendant No. 2 by 25.05.2017. The defendant No. 2 had a period of 30 days from 25.05.2017 for filing of the written statement, which would ordinarily have expired on 25.06.2017. However, defendant No. 2 filed I.A. 7663/2017 immediately thereafter. As noted above, the said application was filed under Order VII Rule 11 of the CPC on 03.07.2017. The Court’s calendar for the year 2017 shows that the Court reopened on 03.07.2017, after the summer vacation which was from 01.06.2017 to 30.06.2017. Mr. Mittal contends that the Registry was open from 01.07.2017 for filing. Even assuming this to be the case, the filing of the application under Order VII Rule 11 of the CPC was within the condonable period of 30 days plus 90 days, provided under the Original Side Rules.

8. The two judgments relied upon by Mr. Malhotra support the position that a defendant ought not to be called upon to file the written statement during the pendency of the application under Order VII Rule 11 of the CPC. In Saleem Bhai[5], the Supreme Court has observed as follows:-

9. In view of the fact that I.A. 7663/2017 was filed by defendant No.2 on 03.07.2017, as noted above, I am of the view that the application cannot be taken to have been filed by defendant No. 2 as a ruse for retrieving the lost opportunity to file the written statement. The opportunity had not yet been lost, as defendant No. 2 filed I.A. 7663/2017 during the maximum condonable period for filing of the written statement.

10. In any event, by the order dated 28.01.2020, while disposing of the aforesaid application, the learned Joint Registrar specifically directed that the written statement, documents and affidavit of admission/denial be filed by defendant No. 2 in accordance with law. The aforesaid direction was not assailed by the plaintiff at any stage. I am unable to accept Mr. Mittal’s arguments that the use of the words “in accordance with law”, in fact, signifies that the period of limitation having commenced on 25.05.2017, defendant No. 2 could not file its written statement thereafter. Such a contention renders the Supra (note 2). aforesaid direction entirely nugatory. It was open to the plaintiff to have made this argument before the learned Joint Registrar on the said date, or indeed to challenge the aforesaid order, if according to the plaintiff, the liberty was wrongly granted. The plaintiff did not take these steps, and must now accept the consequences of the order dated 28.01.2020.

11. Mr. Mittal’s submission that defendant No. 2 itself took a contrary position in I.A. 9720/2020 is also untenable. The order passed by the Court on the said application dated 22.10.2020 was as follows:-

12. In paragraph 2 of the aforesaid order, the contention of learned Senior Counsel is recorded to the effect that there is, in fact, no delay Emphasis supplied. in filing of the written statement. However, in view of the learned Joint Registrar’s order dated 09.09.2020, the application was withdrawn with liberty to file a chamber appeal. The recording of this contention, in the order dated 22.10.2020, while granting liberty to the defendant No. 2 to withdraw the application, negates Mr. Mittal’s contention to the contrary.