MOTHERS PRIDE EDUCATION INSTITUTION PVT.LTD. v. SHUKLA SEHGAL

15. He submits that the petitioner never challenged the said order nor sought a review thereof. Instead, the petitioner filed a new written statement on 05.09.2020, this time accompanied with an application seeking enlargement of time for filing of the written statement. He CM(M) 144/2021 Page 8 submits that the learned Trial Court has rightly observed that the remedy of the petitioner was to seek recall of the order dated 25.02.2020 and in absence thereof, the application filed by the petitioner on 05.09.2020 was not maintainable.

16. As far as the applicability of the order dated 23.03.2020 of the Supreme Court extending the period of limitation is concerned, the learned counsel for the respondent submits that the same could be of no avail to the petitioner inasmuch as the period prescribed for filing of the written statement had already expired. Placing reliance on Sagufa Ahmed and Ors. (supra), he submits that the order dated 23.03.2020 is not intended to extend and apply even to the period up to which the Court may condone the delay in filing of the written statement.

17. I have considered the submissions made by the learned counsels for the parties.

18. At the outset, the submission of the learned counsel for the respondent that the remedy of the petitioner was to challenge the order dated 25.02.2020 and in absence thereof, the learned Trial Court was right in refusing to take the written statement on record, cannot be accepted. The learned Trial Court was pleased to direct that the written statement filed by the petitioner be struck off from the record on the ground of it not being in compliance with the provisions of the Code as applicable to the Commercial Disputes and as also not being accompanied with an application seeking condonation of delay in filing the Written Statement. Once the petitioner removes such defects, the petitioner was not to seek a recall of the said order. The CM(M) 144/2021 Page 9 application filed by the petitioner to take the fresh written statement on record was to be adjudicated on its own merit. In any case, the petitioner has challenged the said order before this Court in the present petition as well and therefore, the petitioner cannot be non-suited on this ground in the present petition.

19. As far as the plea of the petitioner of the summons not being in the prescribed format, it is to be noted that the Commercial Courts Act, unlike Order XXXVII of the Code, does not prescribe a separate format of summons to be issued by the court in a suit raising commercial disputes. However, this Court issued a Practice Direction dated 27.11.2015 prescribing a proforma for the summons to be issued by the court in suits relating to commercial disputes. The said Practice Direction is reproduced hereinbelow: “HIGH COURT OF DELHI AT NEW DELHI No.27309/I/Orgl./DHC Dated: 27.11.2015 PRACTICE DIRECTION Hon'ble the Chief Justice, on the recommendations of the Hon'ble Judge In- Charge (Original Side) has been pleased to direct that Summons for settlement of Issues in a Suit relating to Commercial Dispute shall be issued as per proforma given below:- “Summons for Settlement of Issues in a Suit Relating to Commercial Dispute (U/s 6 of the Commercial Courts, Commercial Division and Commercial Appellate Division of High Coutts Ordinance, 2015 amending Order V, Rule 1 of Code of Civil Procedure, 1908) In the Court of ……………….…of……………… Plaintiff CM(M) 144/2021 Page 10 Against ………………….of……………Defendant. To (Name, description and place of residence) Whereas………..has instituted a suit relating to a Commercial dispute against you and you are hereby summoned to file a written statement within 30 days of the service of the present summons and in case you fail to file the written statement within the said period of 30 days, you shall be allowed to file the written statement on such other day, as may be specified by the Court, for reasons to be recorded in writing and on payment of such costs as the Court deems fit, but which shall not be later than 120 days from the date of service of summons. On expiry of one hundred and twenty days from the date of service of summons, you shall forfeit the right to file the written statement and the Court shall not allow the written statement to be taken on record. You are required to appear in this Court in person, or by a pleader duly instructed, and able to answer all material questions relating to suit, or who shall be accompanied by some person able to answer all such questions, on the…………… day of……….., at…… O' clock in the…… noon, to answer the claim; and further you are hereby to produce on the said day all documents in your possession or power upon which you base your defence or claim for set-off or counterclaim, and where you rely on any other document whether in your possession or power or not, as evidence in support or you defence or claim for set-off, or counter-claim you shall enter such documents in a list to be annexed to the written statement. Take notice that, in default of your appearance on the day before mentioned, the suit will be heard and determined in your absence. CM(M) 144/2021 Page 11 Given under my hand and the seal of the Court, this……….. day of ………..20……… Judge By Order (VINOD GOEL) REGISTRAR GENERAL”

20. The purpose of issuing the above Practice Direction is to bring about uniformity in the summons to be served on the defendant in a suit relating to commercial disputes so that the defendant is made aware of the mandate and the limitation prescribed under Order VIII Rule 1 of the Code applicable to such a suit. The proforma does not state that it is applicable only to the Commercial Divisions in the High Court. It, on the bare reading of the same, is applicable to ‘a suit relating to Commercial Disputes’.

21. It is important to note here that till the notification of the Commercial Courts, Commercial Division and Commercial Appellate Division of High Courts (Amendment) Ordinance, 2018, the Suits under the Commercial Courts Act could only be filed before the High Court. After the notification of the Ordinance, the High Court also issued an Administrative Order dated 07th July, 2018, nominating all the District Judges/Additional District Judges of respective districts as Commercial Courts. With the establishment of Commercial Courts at District Court level thereafter, the Suits relating to Commercial Disputes could be filed before the District Courts as well.

22. Section 18 of the Commercial Courts Act also empowers the High Court to issue practice directions to supplement the provisions of CM(M) 144/2021 Page 12 the Code insofar as such provisions apply to the hearing of commercial disputes of a Specified Value.

23. It must be remembered that apart from the limitation on the power of the Courts to condone the delay in filing of the Written Statement by the defendant, the amended provisions of the Code as applicable to Commercial Disputes under the Commercial Courts Act, stipulate compliance of various requirements from the Defendant at the time of filing of the Written Statement, like filing of Statement of Truth, etcetera. Therefore, the proforma summons as prescribed in the Practice Direction also serves the object of putting the defendant to notice that the amended provisions of the Code shall apply and must be adhered to.

24. Therefore, keeping in view the object of the Practice Direction, it is clarified that the proforma format of Summons prescribed by the Practice Direction dated 27.11.2015 is applicable even to the Commercial Courts at the District Courts. This clarification shall however be applicable only prospectively and would not result in reopening of cases where the summons was not sent in this prescribed format.

25. In the present case, the summons issued to the petitioner read as under: Date of Order 02.11.2019 Name of the Process Server Date of Filing PF 24.09.2019 Date of issue 22.11.2019 No.of Documents annexed COPY ATTACHED No. of Process CM(M) 144/2021 Page 13 NEXT DATE OF HEARING 06.01.2020 Date of return IN THE COURT OF SH VIKAS DHULL ADDITIONAL DISTRICT & SESSIONS JUDGE DELHI - (WEST) - 01. ROOM NO. 215, 2nd FLOOR TIS HAZARI COURT DELHI SUMMONS FOR SETTLENENT OF ISSUES (Order V, Rule 1 and 5 of the Code of Civil Procedures) CS NO- 448/19 SHUKLA SEHGAL ….. PLAINTIFF Vs.

MOTHER PRIDE EDUCATION ….. DEFENDANT TO, MOTHER PRIDE EDUCATION INSTITUTION PVT LTD THROUGH MANAGING DIRECTOR/CEO ANIL KUMAR GOEL A3/88, GF, JANAK PURI, NEW DELHI-58 Whereas PLAINTIFF has instituted a Plaint against you copy of the same is attached. You are hereby summoned to file a Written statement within 30 days of the service of the present summons and to appear in this court in person, or by a pleader duly instructed, and able to answer all material questions relating to suit, or who shall be accompanied by some person able to answer all such questions, on 06th JANUARY 2020 at 10'O'Clock in the fore noon answer the claim; and further you are hereby directed to produce on the said day all documents in your possession or power upon which you base your defence or counterclaim, and where you rely on any other document whether in your possession or power or not, as evidence in support of your defence or claim for set-off or counter-claim you shall enter such documents in a list to be annexed to the written statement. Take notice that, in default of your appearance on the day before mentioned, the CM(M) 144/2021 Page 14 suit will be heard and determined in your absence. Given under my hand and seal of the court on this 22nd DAY of NOVEMBER, 2019.”

26. The above Summons does not give any indication to the Defendant that this is a suit filed under the Commercial Courts Act. The number of the suit is also not reflective of the said Suit being a Commercial Suit.

27. The reliance of the respondent on the judgment of this Court in Rane Prakash and Ors (supra) is ill-founded inasmuch as in the said case, there was a clear indication to the defendant that the suit was filed under Order XXXVII of the Code. The defect was in the prescribed format of the summons and the Court held that as long as summons was in the prescribed format, the defendant could not take advantage of any defect therein as the defendant was made aware that the suit was filed under Order XXXVII of the Code. The same is not the case here inasmuch as in the summons issued by the learned Trial Court, there is no indication to the petitioner herein that the suit was filed under the Commercial Courts Act or that the provision of the Code as applicable to Suits relating to Commercial Disputes would be applicable.

28. The submission of the learned counsel for the respondent that the petitioner could otherwise have become aware of the suit being one filed under the Commercial Courts Act also cannot be accepted. The submission that a one-time process fee was filed is not something easily discernible from the summons so as to impute knowledge of the CM(M) 144/2021 Page 15 suit being a Commercial Suit on the petitioner. Equally, the reliance on the paragraph 20 of the Plaint and the number of the suit in the plaint also cannot be used as a sufficient notice to the petitioner of the Suit being filed and entertained under the Commercial Courts Act, inasmuch as the summons itself does not give any indication that the suit is commercial in nature. The Commercial Suits are numbered as CS(Comm.) whereas the summons mentioned the suit number as CS No.448/2019. In paragraph 20 of the plaint the sentence claiming the Suit to be filed under the Commercial Courts Act is handwritten. It is also not uncommon that a suit filed as a Commercial Suit is not entertained as such by the Court and is instead treated as an Ordinary Suit. In such a case, the draft plaint that is sent along with the Summons may still use the category of CS(Comm.) and the paragraph describing it as a Commercial Suit may still have remained unamended. Therefore, the above are not sufficient to attribute knowledge to the defendant/petitioner herein of the Suit being Commercial.

29. As far as the email sent to the petitioner enclosing the summons, merely because the subject to the email made a reference to the number of the suit as CS (Comm.), again may not be adequate to draw the attention of the petitioner to the rigours of special provisions of the Code to the suit.

30. It is reemphasized that apart from Order V Rule 1 and Order VIII Rule 1 restricting the power of the Court to condone the delay in filing of the Written Statement, there are other provisions of the Code at the stage of filing of the Written Statement, like verification, filing CM(M) 144/2021 Page 16 of a Statement of Truth, filing of documents etcetera, which are applicable only to the Commercial Disputes. Therefore, it is essential that the defendant must be put to notice that the Suit is one where such rigours will be applicable. It cannot be left to the interpretation or presumption or deduction of the defendant in such vague manner.

31. The submission of the petitioner that it became aware of the suit being filed under the Commercial Courts Act only on 25.02.2020 when its written statement was taken off the record for not being accompanied with Statement of Truth and Affidavit of Admission/Denial of documents, therefore, deserves acceptance.

32. The question then is; what will be the effect of such belated knowledge of the Defendant of the Suit being one under the Commercial Courts Act as far limitation on the power of the Court to condone the delay in filing of the Written Statement by the Defendant as contained in Order V Rule 1 and Order VIII Rule 1 and 10 of the Code as applicable to the Commercial Disputes, is concerned.

33. To answer the above, let us first consider the provisions of Order V Rule 1(1) and Order VIII Rule 1 and 10 of the Code as applicable to Ordinary Suits and as applicable to Commercial Suits. The same are quoted herein below:- ORDINDARY SUITS:- Order V Rule 1(1) of the Code

34. In Salem Advocate Bar Association, T.N. v. Union of India, (2005) 6 SCC 344, the Supreme Court interpreted the above provisions of the Code as applicable to the Ordinary Suits, as under:-

10 Order 8, the court in its discretion would have the power to allow the defendant to file written statement even after expiry of the period of 90 days provided in Order 8 Rule 1. There is no restriction in Order 8 Rule 10 that after expiry of ninety days, further time cannot be granted. The court has wide power to “make such order in relation to the suit as it thinks fit”. Clearly, therefore, the provision of Order 8 Rule 1 providing for the upper limit of 90 days to file written statement is directory. Having said so, we wish to make it clear that the order extending time to file written statement cannot be made in routine. The time can be extended only in exceptionally hard cases. While extending time, it has to be borne in mind that the legislature has fixed the upper time-limit of 90 days. The discretion of the court to extend the time shall not be so frequently and routinely exercised so as to nullify the period fixed by Order 8 Rule 1. In Kailash v. Nanhku, (2005) 4 SCC 480 wherein this was the only question before the Supreme Court and wherein a three-Judge Bench has come to exactly the same conclusion.”

35. In SCG Contracts (India) Private Ltd. v. K.S. Chamankar Infrastructure Pvt. Ltd. & Ors., (2019) 12 SCC 210, the Supreme CM(M) 144/2021 Page 21 Court highlighted the change brought about by the provisions of the Code as applicable to Commercial Disputes, in the following words: