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Date of Decision: 27th September, 2022 CM(M)-IPD 19/2022
SUNDEEP BHUPINDER SINGH & ANR. ..... Petitioners
Through: Mr.Kunal Khanna, Adv.
Through: Mr.Alok Saxena, Adv.
JUDGMENT
1. Allowed, subject to all just exceptions
2. This petition has been filed by the petitioners challenging the order dated 05.09.2022 passed by the learned District Judge (Commercial Court-02), South Distt., Saket, in CS(COMM) 113/2022, titled Sundeep Bhupinder Singh and Anr. v. Oxon Technology Pvt. Ltd., dismissing the application filed under Order VIII Rule 10 of the Code of Civil Procedure, 1908 (in short, the „CPC‟) by the petitioners/plaintiffs in the suit, while allowing the application under Order VIII Rule 1 of the CPC 2022:DHC:3989 filed by the respondents/defendants in the suit, condoning the four days‟ delay in filing of the written statement, and taking the same on record.
3. The admitted facts are that the respondents/defendants in the suit were served with the summons in the suit on 31.03.2022. The respondents filed their written statement on 04.05.2022, with a delay of four days, however, without the Statement of Truth, Affidavit of Admission and Denial of the documents of the petitioners/plaintiffs in the Suit, and an application seeking condonation of delay in filing of the Written Statement.
4. On 04.05.2022, the learned District Judge passed the following order: “Ld. Counsel for the defendant has filed vakalatnama alongwith written statement, reply to the application U/s 12A of Commercial Courts Act, reply to the application U/o XXXIX Rule 1 & 2 CPC, list of documents with documents and certificate U/s 65B of Indian Evidence Act. Copies have been supplied to the Ld. Counsel for the plaintiff today. Ld. Counsel for the defendant seeks time for filing statement of admission/denial of documents and proper verification U/o VI Rule 15A CPC/statement of truth as amended by Commercial Courts Act. Heard. Let the statement of admission/denial of documents as well as proper verification U/o VI Rule 15A CPC/statement of truth as amended by Commercial Courts Act be filed by the defendants within two weeks with copy to Ld. Counsel for the plaintiff who may file replication alongwith statement of admission/denial of documents qua the documents filed by the defendant within two weeks thereof with advance copy to Ld. Counsel for the defendants. Interim order to continue till next date of hearing. In order to explore the possibility of settlement, ARs of both the parties are directed to join physical mediation on 20.05.2022 at 2.00 pm. In case of any difficulty, parties may contact Mr. Girdhar Gopal (Mob. No. 9871813718), official Incharge, Mediation Center, Saket Court, New Delhi. Intimation in this regard be sent by reader of this court to Ld. Judge In-charge, Mediation Center, Saket Court, New Delhi. Parties as well as counsels shall make genuine efforts for amicable settlement. In case matter does not get settled, both the parties shall file brief submissions in not more than two pages alongwith convenience file at least three days before the next date of hearing. List on 25.07.2022 for settlement, if any/report of mediator, alternatively for completion of pleadings, admission/denial of documents and hearing on the application.”
5. The respondents/defendants in the suit thereafter filed their statement of truth and affidavit of admission and denial of the documents on 20.05.2022, that is, within the period as prescribed by the learned District Judge in its order dated 04.05.2022, as also within the period of 120 days as prescribed in the CPC, as applicable to the commercial disputes.
6. The respondents/defendants in the suit thereafter filed an application under Order XXXIX Rule 4 of the CPC on 06.06.2022, on which notice was issued by the learned District Judge on 09.06.2022. Till this date, the petitioners/plaintiffs in the suit had not taken any objection to the grant of the extension of time to the respondents/defendants in the suit to file their Statement of Truth as also the Affidavit of Admission and Denial of the documents and/or the application seeking condonation of the four days‟ delay in filing of the Written Statement.
7. It is only on 19.07.2022, that the petitioners/plaintiffs in the suit filed their application under Order VIII Rule 10 of the CPC praying that the written statement be not taken on record, for having not been filed within the time prescribed. The respondents/defendants in the suit, as an abundant caution, filed an application under Order VIII Rule 1 of the CPC praying for condonation of four days‟ delay in filing the written statement.
8. By the impugned order, as noted hereinabove, the learned District Judge has allowed the application filed by the respondents/defendants in the suit, while dismissing the application of the petitioners/plaintiffs in the suit; and has condoned the delay of four days by the respondents/defendants in the suit in the filing of the written statement. The learned District Judge in his impugned order has given the following reasons:
9. The learned counsel for the petitioners, placing reliance on the judgement of the Supreme Court in Prakash Corporates v. Dee Vee Projects Ltd., (2022) 5 SCC 112,, submits that in the present case, the respondents/defendants in the suit have not filed any application seeking condonation of delay in the filing of the written statement. The learned District Judge has also neither given any reasons in the order dated 04.05.2022 for extending the time period for the respondents/defendants in the suit to file the Statement of Truth as also the Affidavit of Admission and Denial of the documents nor has the learned District Judge considered the imposition of cost for the condonation of delay. He submits that in this manner, the learned District Judge has completely negated the mandate of the Commercial Courts Act, 2015. He further places reliance on the judgement of this Court in Friends Motel Pvt. Ltd. v. Shreeved Consultancy LLP & Ors., 2020 SCC OnLine Del 2072, to submit that the filing of an application seeking condonation of delay was a must.
10. On the other hand, the learned counsel for the respondents submits that in the present case, there was a delay of only four days in filing the Written Statement. Though, initially, the affidavit of admission and denial of the documents as also the statement of truth was not filed by the respondents/defendants in the suit, this deficiency was rectified within the time granted by the learned District Judge in his order dated 04.05.2022. At that stage, the petitioners/plaintiffs in the suit never raised any objection and it is only when the respondents/defendants in the suit filed their application under Order XXXIX Rule 4 of the CPC that the petitioners/plaintiffs in the suit, to thwart the hearing of the said application, filed the application under Order VIII Rule 10 of the CPC contending that the written statement could not be taken on record.
11. I have considered the submissions made by the learned counsels for the parties.
12. Though, admittedly, the written statement, as filed on 04.05.2022, could not be taken on record, it is a matter of fact that by the order dated 04.05.2022, the learned District Judge granted an extension of a period of two weeks to the respondents/defendants in the suit to file the Statement of Truth and the Affidavit of Admission and Denial of documents, so as to bring it in conformity with the provisions of the CPC, as applicable to the Commercial Disputes. There was, therefore, an extension of time granted to the respondents/defendants in the Suit to file their Written Statement. The respondents/defendants in the suit have admittedly filed their statement of truth as also the affidavit of admission and denial of the documents within the time extended by the learned District Judge.
13. Though, the learned counsel for the petitioners submits that the said order dated 04.05.2022 does not give any reasons for the grant of such extension nor considers the question of imposition of cost on the respondents/defendants in the suit for the delay in filing of the Written Statement, as the said order is not in challenge before this Court, I need not comment on the same. The fact remains that the learned District Judge by the said order had granted an extension of time to the respondents/defendants in the suit and the respondents/defendants in the suit, availing of this opportunity, have filed the written statement in the manner prescribed by the CPC, as applicable to the Commercial Disputes.
14. As far as the submission of the learned counsel for the petitioners, that in absence of an application filed by the respondents/defendants in the suit giving reasons for seeking extension of time to file their written statement being filed within 120 days of the service of summons, the written statement could not be taken on record, I must note that the learned counsel for the petitioners himself, very fairly, has drawn the attention of this Court to the order dated 12.09.2022 passed by the Supreme Court in SLP(C) 9733-9734/2022, titled M/s A.P. Distributors v. Ok Play India Pvt. Ltd., wherein the Supreme Court has held as under: “Leave granted. Having heard learned counsel for the respective parties and in the facts and circumstances of the case and considering the fact that the written statement was filed on the 34th day of the service of notice of summons, however, the application for condonation of delay was filed which was beyond the period of 120 days, the High Court has taken too technical view in setting aside the order passed by the learned Commercial Court directing to accept the written statement filed on behalf of the appellants/defendants. The High Court was not justified in setting aside the order passed by the learned Trial Court directing to take the written statement on record. In view of the above and for reasons stated hereinabove, the present appeals succeed. The impugned judgment and orders passed by the High Court are hereby quashed and set aside and the order passed by the learned Trail Court directing to take written statement on record after condoning the delay in submitted the written statement is hereby restored. The present Appeals are accordingly allowed. No costs.”
15. In view of the above, the submission of the learned counsel for the petitioners cannot be accepted. There was a delay of only four days in filing of the written statement and the time for filing of the statement of truth and the affidavit of admission and denial of the documents was extended by the learned District Judge by its order dated 04.05.2022, which remains unchallenged and has attained finality. In view of the said order, in fact, the very filing of the application by the petitioners/plaintiffs in the suit under Order VIII Rule 10 of the CPC was not warranted.
16. The judgment of the Supreme Court in Prakash Corporates (supra) shall have no application to the facts of the present case. In the said judgment, the Supreme Court while reiterating the mandate of the provisions of Order VIII Rule 1 of the CPC and Order VIII Rule 10 of the CPC, as applicable to the commercial disputes, has held as under: “19......Tersely put, as per the mandate of the said provisions: (a) the defendant is under an obligation to file the written statement of his defence within 30 days of service of summons; (b) if he fails to file the written statement within the said period of 30 days, he may be allowed to file the written statement on such other day as the Court may specify for reasons to be recorded in writing and on payment of such costs as the Court may impose but this other day, in any case, cannot go beyond 120 days from the date of service of summons;
(c) on expiry of 120th day from the date of service of summons, the defendant forfeits the right to file the written statement and no Court can make an order to 32 extend such time beyond 120 days from the date of service of summons…..”
17. The Supreme Court found that therein that the written statement had been filed beyond the 120th day of the service of summons. The Supreme Court thereafter considered the effect of the orders passed in re: Cognizance for Extension of Limitation, Suo Motu Writ Petition (C) No. 3 of 2020. In the present case, the Written Statement was admittedly filed within the 120 days of the service of summons on the defendants.
18. As far as the judgment of this Court in Friends Motel Pvt Ltd. (supra) is concerned, in view of the judgment passed by the Supreme Court M/s A.P. Distributors (supra) as referred hereinabove, and in the facts of the present case, the same shall have no application.
19. In view of the above, the present petition is dismissed. There shall be no order as to cost.
NAVIN CHAWLA, J SEPTEMBER 27, 2022/Arya/AB