Full Text
HIGH COURT OF DELHI
Date of Decision: 13th December, 2022
M/S. DALIP SINGH ADHIKARI ..... Plaintiff
Through: Mr. Vineet Kumar, Adv.
Through: Mr. Navdeep Singh and Mr. Mandeep Singh Kapoor, Advs.
JUDGMENT
1. The present appeal has been filed by the M/s. New India Assurance Company Limited/ Defendant/ Appellant herein, against the order dated July 12, 2022, passed by the Joint Registrar in I.A. No. 10473/2022 and I.A NO. 10472/2022 in C.S.(COMM) No. 713/2021) with the following prayer;- “It is, therefore respectfully prayed that the present petition may be kindly be allowed and order of Ms Vandana Jain, Joint Registrar (Judicial) Hon'ble High Court of Delhi in case no. C.S. (Comm.) No. 713/2021 titled 'M/s Dalip Singh Adhikari Vs. M/s The New India Assurance Co Ltd.' passed on 12.07.2022 may kindly be set aside with costs. Any other further order which this Hon'ble Court may deem fit and proper under the circumstances of the case may be passed.” O.A. No. 30/2022 in CS(COMM) 713/2021 Page 2
2. It is the case of the appellant / defendant that, on December 24, 2021, an advance copy of the suit was served on the appellant/defendant and Shri J.P.N.Shahi, Advocate, appeared on behalf of appellant company. The paper book was supplied to the counsel for the appellant/defendant. The office of the appellant Company situated at Delhi appointed another Advocate to defend the case.
3. It is the case of the appellant/defendant that the counsel suddenly, in middle of March 2022, returned the brief for unknown reasons. In the last week of March 2022, the appellant company appointed the present counsel; who took some time to draft the written statement.
4. The counsel for the appellant stated that the counsel had filed the written statement along with the affidavit of admission / denial of documents of the plaintiff, documents on its behalf and Vakalatnama. The same were acknowledged by the Registry by assigning separate diary numbers.
5. On April 01, 2022, the counsel for the petitioner received an e-mail from the registry raising objections regarding the fresh notice of motion and the question of maintainability under Order VIII Rule I A, as the same has been omitted as per Commercial Court Act. He stated that no objection was raised by the registry with regard to Written Statement and affidavit of admission / denial of documents.
6. It appears the e-mail sent by the registry had also put objections that, all the pages of the documents filed which are O.A. No. 30/2022 in CS(COMM) 713/2021 Page 3 copies of original, need to be marked with TC (True Copy) and also Page No. 65 of the documents is not legible. The email from the registry, went unnoticed; till July 05, 2022, when he logged into his mail, to know that there is a mail from the registry with respect to the objections/defects in the filing, dated March 30, 2022.
7. It is stated that the objections were removed and applications under Section 5 of the Limitation Act, being I.A.No. 10472/2022 and I.A. No.10473/2022, were re-filed on July 7, 2022. These applications were for seeking enlargement of time in filing the written statement (I.A. No.10472/2022) and condonation of delay of 60 days in re-filing the applications and list of documents (IA NO. 10473/2022).
8. It is the case of the appellant herein, that no reply was filed by the respondent / plaintiff. The learned Joint both the applications being I.A. No 10472/2022 and I.A. No 10473/2022 and thereby directing the Registry to take off the Written Statement / affidavit and documents from the record. The Joint Registrar in the order dated July 12, 2022, observed as under;- “Arguments on the IA heard. Record perused. The perusal of record shows that the Learned counsel for defendant had appeared on 24.12.2021 without issuance of summons and asked for supplying the paper book. He e-filed the written statement along with affidavit of admission/denial on 30.03.2021 for the first time. The objections were O.A. No. 30/2022 in CS(COMM) 713/2021 Page 4 raised on the same which as per the application itself were removed only after 05.07.2022. As per the order of Hon'ble Supreme Court in Suo Motu W.P. (C) 3/2020, passed on 10.01.2022, the discretionary period of 90 days in filing the written statement was to start from 01.03.2022 in the cases where the defendant had been served between 15.03.2020 till 28.02.2022 and the Statutory period of 30 days prescribed in CPC for filing of written statement was over by 28.02.2022. Nowhere in the application, it has been stated as to when the paper book was supplied by the plaintiff to the defendant or it was not supplied within the given time frame. In the order dated 24.12.202, it was clarified that the time for filing the written statement would start from that day itself. Therefore, the period of 90 days, in view of the benefit given by the Supreme Court in the aforesaid Writ Petition started from 01.03.2022. Defendant admittedly filed the written statement on 30.03.2021 and allowed it to remain under scrutiny/objections till 05.07.2022. Despite availing benefit of extension of limitations period granted by Hon'ble Supreme Court, the written statement was not placed on record before 30.05.2022. The defendant allowed it to remain under scrutiny beyond 30.05.2022 only on the ground of oversight. The explanation of oversight given in the application cannot extend the period of limitation for filing the written statement as it came to an end on 30.05.2022. I do not find any merits in the application seeking condonation of delay in refiling of the application and documents and the other application seeking enlargement of time in filing written statement. Hence, both the IAs stands dismissed. O.A. No. 30/2022 in CS(COMM) 713/2021 Page 5 Written statement and affidavit of admission/denial of documents and documents efiled on behalf of defendant, is taken off the record.”
9. Mr. Navdeep Singh, the learned Counsel for the appellant/defendant stated that the Chapter IV, Clause 3 of the Delhi High Court (Original Side) Rules, 2018, relates to the action taken under Defective pleadings/ documents, which read as under:- “3. Defective pleadings/ document:a. If on scrutiny, the pleading/ document is found defective, the Deputy Registrar/ Assistant Registrar, In-charge of the Filing Counter, shall specify the objections, a copy of which will be kept for the Court Record, and return for amendment and re-filing within a time not exceeding 7 days at a time and 30 days in aggregate. b. If the pleadings/ documents are not taken back for amendment within the time allowed under sub-rule (a), it shall be registered and listed before the Court for its dismissal for non-prosecution. c. If the pleadings/ documents are filed beyond the time allowed under sub-rule (a) the pleading/ document must be accompanied with an application for condonation of delay in refilling of the said pleading/ document.” O.A. No. 30/2022 in CS(COMM) 713/2021 Page 6
10. He submitted that, it is clear that the pleading and documents are two distinct parts and, the rules nowhere states that the pleading and documents are to be filed together.
11. He stated that, in this case admittedly Written Statement and affidavit of admission / denial of plaintiffs documents along with documents were filed on March 30, 2022 and in view of the judgment of the Supreme Court in the case of Re: Cognizance for Extension of Limitation, Suo Moto W.P.(C) 03/2020, the filing was within limitation prescribed by the Supreme Court. Furthermore, the filing of the Written Statement along with affidavit of admission and denial of plaintiffs’ documents, Documents, Applications and Vakalatnama were acknowledged by the Registry and assigned them separate diary numbers being:a. Diary/Filing No.481479/2022 – for written statement with admission/denial affidavit. b. Diary/Filing No.481558/2022 – for documents; c. Diary/Filing No.490298/2022 – for applications.
12. He stated that, it is the documents wherein, the objections were marked by the registry. The appellant was required to clear the same and re-file the documents within the prescribed time. Unfortunately, the objections put by the registry came to his attention only on July 05, 2022, because of which the objections could not be cured on time. He also stated the written statement and affidavit of admission/denial of plaintiffs’ documents were not under objections and could O.A. No. 30/2022 in CS(COMM) 713/2021 Page 7 not have been directed to be taken off the record by the learned Joint Registrar.
13. The objections with regard to documents having been removed and re-filed on July 7, 2022, the delay being not abnormal, the learned Joint Registrar could not have rejected the application for condonation of delay in re-filing the documents vide the impugned order. That apart, he stated that the objection put by the registry on the documents being, that the documents have not been marked as True Copy and page No.65 being illegible, cannot be construed as non-est filing and as such, the condonation of delay in re-filing should have been allowed by taking the documents on record.
14. Mr. Singh has relied upon the judgment of this court in Sharma Kalypso Pvt. Ltd. v. Engineers India Limited in O.M.P (COMM) 363/2019, wherein it was held that in the case of Delhi Development Authority v. Durga Construction Co, 2013 SCC OnLine Del 4451, the Division Bench of this court, stated that, on one hand the practice of filing the petition initially as a mere bunch of papers, but on the other hand filing an application and re-filing the same after, removing the defects, stand on a completely different footing in so far as provision of limitation is concerned. It is also held that, Section 34(3) of the Act, do indicate the intention of the legislature is to ensure that there is no undue delay in filing an application under Section 34 of the Act. The same does not provide any time limit for re-filing the application. Any O.A. No. 30/2022 in CS(COMM) 713/2021 Page 8 restriction with regard to the power / jurisdiction of the court in condoning the delay in re-filing cannot be read into the provision of Section 34(3) of the Act. Furthermore, the court has distinguished the issue of re-filing and stated that the refiling is different from the case of delay in filing, inasmuch as, the party has already evinced its intention to take recourse to the remedies available in courts and has also taken steps in that regard. It cannot be assumed that the party has given up his rights to avail legal remedies.
15. The submission is, the filing of documents being within time as prescribed by the Supreme Court, and re-filing of the same got delayed as the counsel could not access his email account till July 05, 2022, and the same having been refiled immediately thereafter on July 07, 2022, and the documents filed are not bunch of papers, but a proper filing except that they have not been marked as True Copy and page No.65 being not legible, the learned Joint Registrar should have condoned the delay in re-filing and taken the documents on record.
16. He stated that, it is settled law, ordinarily litigation should be adjudicated on the merits of the contentions of the parties and the same should not be terminated by default, either of the plaintiff or of the defendant. The cause of justice, require that as far as possible, adjudication is to be done on merits. He seeks the prayer made in the appeal. O.A. No. 30/2022 in CS(COMM) 713/2021 Page 9
17. On the other hand, the learned counsel for the plaintiff/respondent justifies the order passed by the learned Joint Registrar. He contested the appeal by stating that the written statement/documents returned under objections having not been re-filed within the stipulated time granted by the registry and taken back in objections only on July 05, 2022 and re-filed on July 07, 2022, after a period of more than three months, have been rightly rejected and directed to be taken off the record by the Joint Registrar.
18. He seeks the dismissal of the appeal.
19. Having considered the submissions made by the learned counsel for the parties, at the outset, I may state that appellant herein has filed the written statement with affidavit of admission/denial of the plaintiff’s document and the documents in support of written statement vide separate filing numbers as noted above, on March 30, 2022.
20. The same were scrutinized by the Registry on March 31, 2022. On April 01, 2022, the Registry had marked the applications as defective in view of the fact that Order VIII Rule 1A has been omitted and the document were not marked True Copy and one document was illegible. It was only on July 05, 2022, the applications were taken back for removing the defects and on July 07, 2022, an application being I.A. No.10473/2022 was filed under Section 5 of the Limitation Act, seeking condonation of delay in re-filing the applications and documents. O.A. No. 30/2022 in CS(COMM) 713/2021 Page 10
21. The defects were primarily with regard to the documents not marked as T.C.(True Copy) and page No. 65 not being legible. In other words, there was no objection with regard to the written statement and affidavit of admission/denial of documents filed by the plaintiff.
22. When the above applications were listed before the Joint Registrar, it appears, the Joint Registrar was under the impression that the written statement and the documents have been returned under objections and the same remained under scrutiny/objections till July 05, 2022, even though time had expired on May 30, 2022.
23. I have seen the provisions of the Commercial Court Act, 2015 which amended the provisions of the CPC. I have also seen the Delhi High Court (Original Side) Rules, 2018. Insofar as the commercial suits are concerned, there is no rule unlike a rule, that contemplates if the written statement is not filed along with affidavit of admission/denial of plaintiff’s documents then the written statement cannot be taken on record. In other words, there is no rule under both provisions, which stipulates, if the documents are not filed along with the written statement, then the written statement shall not be taken on record.
24. Having said so, the issue which requires consideration is, whether the documents which were under objections having remained in scrutiny/objections till July 07, 2022, when they were re-filed, the written statement and the O.A. No. 30/2022 in CS(COMM) 713/2021 Page 11 documents can be directed to be taken off the record. The answer to this has to be in the negative for the reason that, there was no defect with regard to the written statement, and affidavit of admission/denial of plaintiff’s documents to that extent, they have been validly filed.
25. Insofar as the documents are concerned, admittedly they have not been re-filed within the stipulated time of 30 days, from the date when registry had raised the objections on the same. They were re-filed with an application for condonation of delay in re-filing.
26. The reasoning given seeking condonation of 60 days delay in re-filing the application and list of documents are primarily in paragraphs 2, 3, 4 and 5, which are reproduced as under:-
27. The re-filing of documents is a question of practice and procedure. The appellant could have filed the documents by May 30, 2022 in view of order of the Supreme Court. Even if the appellant/defendant had filed the documents on March 30, 2022 and objections were raised by the Registry on April 01, 2022, it was obligatory on the part of appellant/defendant to take back the documents lying under objections, rectify the same and re-file the same within 7 days. The objections / defects put shall not make the filing of the documents on March 30, 2022, a non-est filing. Surely, the filing of documents with the above objections, cannot be compared with filing of documents which is in effect a non-est filing. So, in that sense the Courts have drawn a distinction between a case where the documents were filed beyond time and a case where the filing is within time and without any serious objection. In this regard, learned counsel for the appellant / defendant has rightly referred the judgment in the case of Sharma Kalypso Pvt. Ltd. (supra) wherein the Court has referred to paragraph 17 of the judgment in the case of Durga O.A. No. 30/2022 in CS(COMM) 713/2021 Page 13 Construction (supra), in which the Division Bench of this Court has held as under:
17. The cases of delay in re-filing are different from cases of delay in filing inasmuch as, in such cases the party has already evinced its intention to take recourse to the remedies available in courts and has also taken steps in this regard. It cannot be, thus, assumed that the party has given up his rights to avail legal remedies. However, in certain cases where the petitions or applications filed by a party are so hopelessly inadequate and insufficient or contain defects which are fundamental to the institution of the proceedings, then in such cases the filing done by the party would be considered non est and of no consequence. In such cases, the party cannot be given the benefit of the initial filing and the date on which the defects are cured, would have to be considered as the date of the initial filing. A similar view in the context of Rules 1 & 2 of Chapter IV of the Delhi High Court (Original Side) Rules, 1967 was expressed in Ashok Kumar Parmar v. D.C. Sankhla, 1995 RLR 85, whereby a Single Judge of this Court held as under: “Looking to the language of the Rules framed by Delhi High Court, it appears that the emphasis is on the nature of defects found in the plaint. If the defects are of such character as would render a plaint, a non-plaint in the eye of law, then the date of presentation would be the date of re-filing after removal of defects. If the defects are formal or ancillary in nature not effecting the validity of the plaint, the date of presentation would be the date of original presentation for the purpose of calculating the limitation for filing the suit.” O.A. No. 30/2022 in CS(COMM) 713/2021 Page 14 A Division Bench of this Court upheld the aforesaid view in D.C. Sankhla v. Ashok Kumar Parmar, 1995 (1) AD (Delhi) 753 and while dismissing the appeal preferred against decision of the Single Judge observed as under: “5……. In fact, that is so elementary to admit of any doubt. Rules 1 and 2 of (O.S.) Rules, 1967, extracted above, do not even remotely suggest that the re-filing of the plaint after removal of the defects as the effective date of the filing of the plaint for purposes of limitation. The date on which the plaint is presented, even with defects, would, therefore, have to be the date for the purpose of the limitation act.”
28. Though the original side rules state the re-fling shall not exceed 30 days in aggregate and the application shall be listed before the Court for its dismissal and non-prosecution, but that can be in a case where the objections were not removed at all. As I have said, the re-filing is a matter of procedure and a party specifying justifiable reasons for not refiling the documents within time stipulated, the Court / JR (in this case) is within its right by giving reasons, take the documents on record. Even otherwise, I find when the written statement has been validly filed there is no reason to reject the documents filed in support of the written statement.
29. In view of my above finding, the present appeal need to be allowed and the written statement along with affidavit of admission denial of documents (filed by plaintiff) and documents filed by the appellant / defendant, shall be taken O.A. No. 30/2022 in CS(COMM) 713/2021 Page 15 on record. The IA Nos. 10472/2022and 10473/2022 stand allowed. The appeal is disposed of. CS(COMM) 713/2021
30. The plaintiff shall file replication along with affidavit of admission / denial of documents filed by the defendant within a period of 30 days from today.
31. List before Joint Registrar on January 24, 2023 for further proceedings.
V. KAMESWAR RAO, J.
DECEMBER 13, 2022