M/S. LIFESTAR PHARMA PRIVATE LIMITED v. M/S. STARLIFE HEALTHCARE

1. This hearing has been done through hybrid mode. I.A.3480/2021 (for delay in filing written statement) & I.A.2953/2021 (for delay in filing affidavit of admission/denial)

2. These are two applications filed by the Defendant seeking condonation of delay in filing the written statement and in filing the affidavit of admission/denial.

3. The Defendant had first entered appearance in this matter on 10th February, 2020, which was the first date of listing of the suit. On the said date, the Defendant was directed to file its written statement. Thereafter, the written statement and affidavit of admission/denial ought to have been filed within the prescribed period, as per the Commercial Courts Act, 2015. However, the written statement and the affidavit of admission/denial were filed only on 23rd September, 2020, i.e., with a delay. On the next date before Court, being 1st December, 2020, the Defendant did not appear and 2022:DHC:1386 Court notice was issued, post which the present applications were filed by the Defendant.

4. Ld. counsel for the Plaintiff opposes the applications, relying upon the judgment of the Supreme Court in Sagufa Ahmed & Ors. v. Upper Assam Plywood Products Pvt. Ltd. & Ors. [Civil Appeal Nos.3007-3008 of 2020, decided on 18th September, 2020]. The relevant portion of the said judgment reads as under: “19. But we do not think that the appellants can take refuge under the above order. What was extended by the above order of this Court was only “the period of limitation” and not the period upto which delay can be condoned in exercise of discretion conferred by the statute. The above order passed by this Court was intended to benefit vigilant litigants who were prevented due to the pandemic and the lockdown, from initiating proceedings within the period of limitation prescribed by general or special law. It is needless to point out that the law of limitationfinds its root in two latin maxims, one of which is Vigilantibus Non Dormientibus Jura Subveniunt which means that the law will assist only those who are vigilant about their rights and not those who sleep over them. XXX

23. Therefore, the expression “prescribed period” appearing in Section 4 cannot be construed to mean anything other than the period of limitation. Any period beyond the prescribed period, during which the Court or Tribunal has the discretion to allow a person to institute the proceedings, cannot be taken to be “prescribed period”.”

5. Accordingly, she submits that as per Sagufa Ahmed (supra), since the period of limitation had expired before 15th March, 2020 in this case, the delay cannot be condoned.

6. On the other hand, ld. counsel for the Defendant relies upon the judgment of the Madras High Court in Stanford Laboratories Pvt. Ltd. v. Centaur Pharmaceuticals Pvt. Ltd and Anr. [C.S. (Comm.Div) No.684 of 2019, decided on 20th April, 2021]. In Stanford (supra), the Defendant had filed their written statement in July, 2020, when the 30 days’ time limit for filing the same had expired in February, 2020. The limit for condonation of delay had expired in May, 2020. In this decision, after considering the judgment in Sagufa Ahmed (supra), the order of the Supreme Court dated 8th March, 2021, in Suo Moto Writ (Civil) No. 3 of 2020 titled In Re: Cognizance for Extension of Limitation, has been relied upon, to condone the delay in filing the written statement. The Madras High Court has observed that the condonation of delay would also apply in computing prescribed periods within which Courts or Tribunals can condone delay. The relevant extract of Stanford (supra), also examining the Supreme Court decisions, reads as under:

12. But then, the Hon’ble Supreme Court vide its order dated 08.03.2021, while disposing the Suo Motu Writ Petition (Civil) No.3 of 2020, had given quietus to the contentious issue by issuing the following directions:-

7. The said judgment of the Madras High Court has been upheld by the Supreme Court in Centaur Pharmaceuticals v. Stanford Laboratories Pvt. Ltd. [SLP No.17298/2021 dated 4th January, 2022], in the following terms: “Having heard the learned counsel for the respective parties, we are of the opinion that, in the facts and circumstances of the case, the High Court has not committed any error in extending the period of limitation in filing the written statement and consequently taking on record the written statement filed on behalf of the respondent-original defendant. Even as held by this Court in the subsequent orders even the period of limitation which could have been extended and/or condoned by the Tribunal/Court is excluded and/or extended even up to 07.10.2021. In that view of the matter, we see no reason to interfere with the impugned judgment and order passed by the High Court. Hence, the Special Leave Petitions stand dismissed. Consequent upon the dismissal of the Special Leave Petitions, the interim order passed by this Court stands vacated.”

8. In view of this legal position and the facts of this case, the delay in filing the written statement and affidavit of admission and denial is condoned, subject to payment of Rs.10,000/- as costs. The said costs shall be paid by the Defendant to the ld. Counsel for the Plaintiff within two weeks.