Full Text
HIGH COURT OF DELHI
Date of Decision: 18.02.2021
ELI LILLY AND COMPANY AND ANR. ..... Plaintiffs
Through Mr.Pravin Anand, Ms.Archana Shanker, Ms.Ridhie Bajaj and
Ms.Imon Roy, Advs.
Through Mr.Sai Deepak J., Mr.G.Natraj and Mr.Avinash Sharma, Advocates for
D-1 & D-2.
Mr.Arjun Aggarwal, Adv. for D-3.
This hearing is conducted through video conferencing.
IA No.2441/2021 This application is filed by defendant No.3 under Order 8 Rule 1 CPC seeking condonation of delay of 82 days in filing the written statement.
Learned counsel for the plaintiffs states that they have no objection to the application. The same is allowed. The written statement is taken on record.
Learned counsel for the plaintiffs states that in the discovery certain
IA No.7145/2020 This application is filed under Order 11 Rules 1(6) and 5(as amended)
CPC.
2021:DHC:609 information has to be provided by defendant No.1.
Learned counsel for defendant No.1 states that they have filed certain documents on their own volition. This information is, for the time being, only available with defendant No.1. It is also stated that they have filed these documents without prejudice to the rights and contentions of the parties.
In view of the above, learned counsel for the plaintiffs states that nothing further survives in this application. The same is disposed of.
IA No.4640/2020 List for arguments on 07.05.2021.
Interim orders to continue.
JUDGMENT
1. The application being IA No.11872/2020 is filed by the defendants under Section 5 of the Limitation Act seeking condonation of delay of 89 days in filing the written statement by the defendants. IA Nos.11872 & 7146/2020
2. It is stated that the present suit for alleged infringement of the patent IN 297760 was listed on 19.06.2020 when the defendants appeared through their learned counsel and accepted the notice. It is stated that the defendants tried their best to file the written statement within 30 days. It is stated that for filing the written statement the defendants had to go through multiple patents or non-patent literature running into 7000 pages approximately based on which the plea of invalidity of the suit patent is taken. It is stated that the 30 days period expired on 19.07.2020. The 120 days period to file written statement expired on 17.10.2020. The defendants filed the written statement on 17.10.2020. Thus, there is a delay of 89 days in filing of the written statement. Hence, it is prayed that this court may condone the delay of 89 days in filing of the written statement.
3. The application being IA No.7146/2020 is filed under Order VIII Rules 1 & 10 of the Amended Commercial Courts, Commercial Division And Commercial Appellate Division of High Court Act, 2015 by the plaintiffs praying that the right of the defendants to file the written statement and reply to IA No.4640/2020 may be closed and a judgment in favour of the plaintiffs and against the defendants be pronounced.
4. On 08.12.2020, this court passed the following orders: “1. Summons in the suit and notice in the application to defendant No.3 were issued by this Court on 28th August, 2020. Learned counsel for defendant No.3 enters appearance and states that summons in the suit and notice in the application were received through e-mail and complete set of paper book was supplied on 15th October, 2020. Learned counsel further states that the defendant No.3 will file his written statement along with the application seeking condonation of delay.
2. Learned counsel for the plaintiff points out that the written statement on behalf of the defendant No.1 has been filed on 17th October, 2020 vide diary No.961463/20 and that too beyond the Court working hours i.e. after 4:00 p.m., and is, therefore, filed beyond 120 days. Further no written statement has been filed on behalf of defendant No.2. According to learned counsel as per Rule 14.[2] of the E-filing Rules if document or an application or the suit or pleading is filed beyond 16:00 hours of the Court working day, the filing will be deemed to be made on the next working day.
3. Learned counsel for the defendant No.1 admits that the written statement was filed on 17th October, 2020 at around 9:30 p.m. in the night through E-filing.
4. Summons in the suit and notice in the application was accepted by learned counsel for defendant Nos.[1] and 2 on 19th June, 2020 and thus, the period of limitation started from 20th June, 2020, and on 17th October, 2020, 120 days were complete. Since the written statement had been filed through Efiling after 4:00 p.m., i.e. 9:30 p.m. it would be deemed to be filed on the next working day which was 19th October, 2020 as 18th October, 2020 was Sunday.”
5. Hence, as per the said order, though the written statement was filed within 120 days of service of summons i.e. on 17.10.2020. However, it was filed at around 09:30 PM. and it was deemed to be filed on next working day i.e. 19.10.2020 as 18.10.2020 was a holiday.
6. I have heard the learned counsel for the plaintiffs and learned counsel for the defendants.
7. Learned counsel for the defendants states that the written statement was filed within 120 days but in view of the order of this court dated 08.12.2020, the written statement is deemed to have be filed on 19.10.2020 as 18.10.2020 was a Sunday. Hence, there is only one day delay beyond the period of 120 days in filing of the written statement.
8. Reliance is placed on the order of the Supreme Court in ‘Re: Cognizance for Extension of Limitation’ Suo Moto W.P.(C) 3/2020 dated 23.03.2020 where the Supreme Court extended the period of limitation in all such proceedings across the country prescribed under the general law or special law whether condonable or not were to be extended w.e.f. 15.03.2020 till further orders to be passed by the court in the present proceedings.
9. Reliance is also placed on judgments of the Supreme Court in the case of M/s SS Group Pvt. Ltd. v. Aaditiya J. Garg & Anr., 2020 SCC Online SC 1050 and on an order of a Co-ordinate Bench of this court in Boehringer Ingelheim Pharma Gmbh & Co. Kg & Anr. v. Natco Pharma Limited, CS(COMM) No.256/2020 dated 22.12.2020.
10. Reliance is also placed on the judgment of the Division Bench dated 09.02.2021 in FAO (OS) 60/2020 titled, ‘Vinod Kumar Kad & Ors. v. Girish Kumar Kad & Ors.’ where the Division Bench noting the judgment of the Supreme Court in Suo Moto W.P.(C) 3/2020 titled, ‘Re: Cognizance for Extension of Limitation’ and also judgment of the Supreme Court in M/S M/s SS Group Pvt. Ltd. vs Aaditiya J Garg & Anr. (supra) condoned the delay in filling the written statement.
11. Learned counsel for the plaintiffs has however strongly urged as follows:
(i) He states that defendant No.1 has not taken the Covind-19 Pandemic as a ground for the delay, either in this application or in the reply, and hence cannot take advantage of the judgments relied upon. The same would have no application to the facts of this case;
(ii) It is further stated that defendant No.1 has been actively pursuing proceedings in the present law suit and numerous other law suits during this period and therefore evidently was not prevented for pursuing matters due to the pandemic. Reliance is placed on the judgment of the Supreme Court in the case of M/s SCG Contracts India Pvt Ltd. v. K.S.Chamankar Infrastructure Pvt. Ltd. & Ors., Civil Appeal 1638/2019 (2019) SCC 210 dated 12.02.2019.
12. A perusal of IA No.11872/2020 shows that it gives various reasons as to why the written statement could not be filed within 30 days. It is stated that on account of nature of dispute espoused by the plaintiffs the drafting of written statement took 119 days. The reasons given are that: the dispute involving patent rights are highly technical; technical analysis of patent consumed a significant amount of time for drafting the written statement as the defendants has to go through multiple patent and non-patent literature running into approximately 7000 pages, based on which the plea of invalidity of the suit patent is being taken; and the suit patent has multiple jurisdictions and the defendants had to go through the prosecution history of the various jurisdictions. It is pleaded that there is a bonafide delay in filing the written statement of 90 days and hence the plea for condonation of the same.
13. It is no doubt true that as pleaded by the learned counsel for the plaintiffs that the Supreme Court in M/s SCG Contracts India Pvt Ltd. v. K.S.Chamankar Infrastructure Pvt. Ltd. & Ors.(supra) had held that the written statement in commercial suits is to be filed within a period of 30 days. However a grace period of further 90 days is granted which the court can employ for the reasons to be recorded in writing. Beyond 120 days from the date of service of summons, the defendants forfeit the right to file the written statement.
14. I may now look at the order of the Supreme Court dated 23.03.2020 in Re: Cognizance for Extension of Limitation (supra). In that case the court passed the following orders:- “to obviate such difficulties and to ensure that the lawyers and litigants do not have to come physically to file such proceedings in respective courts/tribunal across the country – including the court, it is hereby ordered that a period of limitation in all such proceedings, irrespective of the limitation prescribed under the general law or Special Laws whether condonable or not shall stand extended w.e.f. 15th March 2020 till further order/s to be passed by this Court in present proceedings.” Hence, the Supreme Court had ordered the period of limitation in all the proceedings shall stand extended with effect from 15.03.2020 till further orders.
15. Reference may also be had to the judgment of Supreme Court in the case of M/s SS Group Pvt. Ltd. v. Aaditiya J. Garg & Anr.(supra). That was a case pertaining to delay in filing the written statement before National Commission under the Consumer Protection Act. The Supreme Court held as follows: “10. It is true that the decision of the Constitution Bench of this Court in New India Assurance Co. Ltd. (supra) clearly provides that no written statement is to be allowed to be filed beyond the period of 45 days as per Section 38 of the Consumer Protection Act, 2019. However, in this context, it is noteworthy to refer to the order dated 23.03.2020 passed by this Court in SMW(C) No. 3 of 2020, titled as “In Re: Cognizance for Extension of Limitation”, which reads as under: “This Court has taken Suo Motu cognizance of the situation arising out of the challenge faced by the country on account of Covid-19 Virus and resultant difficulties that may be faced by litigants across the country in filing their petitions/applications/suits/appeals/all other proceedings within the period of limitation prescribed under the general law of limitation or under Special Laws (both Central and/or State). To obviate such difficulties and to ensure that lawyers/litigants do not have to come physically to file such proceedings in respective Courts/Tribunals across the country including this Court, it is hereby ordered that a period of limitation in all such proceedings, irrespective of the limitation prescribed under the general law or Special Laws whether condonable or not shall stand extended w.e.f. 15th March 2020 till further order/s to be passed by this Court in present proceedings.
16. Hence, the court noted the judgment of the Constitution Bench in New India Assurance Company Limited vs Hilli Multipurpose Cold Storage Private Limited, 2020 (5) SCC 757 wherein it was held that the Consumer Court has no power to extend the time for filing response to the complaint beyond 45 days. That being the legal position the Supreme Court in view of the order dated 23.03.2020 passed by the Supreme Court in “Re: Cognizance for Extension of Limitation”(supra) held that the limitation for filing written statement in the proceedings before the National Commission We are exercising this power under Article 142 read with Article 141 of the Constitution of India and declare that this order is a binding order within the meaning of Article 141 on all Courts/Tribunals and authorities. This order may be brought to the notice of all High Courts for being communicated to all subordinate Courts/Tribunals within their respective jurisdiction. Issue notice to all the Registrars General of the High Courts, returnable in four weeks.
11. The above order is still operative and by subsequent orders, the scope has been enlarged so that the said order applies in other proceedings also. xxxxx
13. In view of the aforesaid, in our opinion, the limitation for filing the written statement in the present proceedings before the National Commission would be deemed to have been extended as it is clear from the order dated 23.03.2020 that the extended period of limitation was applicable to all petitions/ applications/ suits/ appeals and all other proceedings. As such, the delay of four days in filing the written statements in the pending proceedings before the National Commission deserves to be allowed, and is accordingly allowed.” would deem to have been extended in view of the order of the Supreme Court dated 23.03.2020.
17. Similarly, a Co-ordinate Bench of this Court in Boehringer Ingelheim Pharma Gmbh & Co. Kg & Anr. v. Natco Pharma Limited, (Supra) vide order dated 22.12.2020 condoned one day delay in filing the written statement beyond 120 days relying upon the judgment of the Supreme Court in M/S Ss Group Pvt. Ltd. vs Aaditiya J Garg(supra).
18. Similarly, reference may be had to the judgement of the Division Bench of this court in ‘Vinod Kumar Kad & Ors. v. Girish Kumar Kad & Ors.(supra). The Division Bench held as follows: “6. We are unable to find any merit in the submission of learned counsel for the appellant. It is an admitted position that the time within which the respondents could file their written statement in terms of the 2018 Rules expired during the period when the pandemic had already set in and, as a consequence, regular functioning of Courts across the country, including the Apex Court as also this Court, stood suspended. In response to this situation, the Supreme Court took suo moto cognisance of the problems faced by litigants across the country, in filing pleadings within the period of limitation and, consequently, on 23.03.2020 passed the following order in SMW (C) No. 3/2020 titled In Re: Cognizance for Extension of Limitation: “This Court has taken Suo Motu cognizance of the situation arising out of the challenge faced by the country on account of Covid-19 Virus and resultant difficulties that may be faced by litigants across the country in filing their petitions/applications/suits/ appeals/all other proceedings within the period of limitation prescribed under the general law of limitation or under Special Laws (both Central and/or State). To obviate such difficulties and to ensure that lawyers/litigants do not have to come physically to file such proceedings in respective Courts/Tribunals across the country including this Court, it is hereby ordered that a period of limitation in all such proceedings, irrespective of the limitation prescribed under the general law or Special Laws whether condonable or not shall stand extended w.e.f. 15th March 2020 till further order/s to be passed by this Court in present proceedings. We are exercising this power under Article 142 read with Article 141 of the Constitution of India and declare that this order is a binding order within the meaning of Article 141 on all Courts/Tribunals and authorities. This order may be brought to the notice of all High Courts for being communicated to all subordinate Courts/Tribunals within their respective jurisdiction. Issue notice to all the Registrars General of the High Courts, returnable in four weeks.”
7. When the Apex Court has clearly passed directions to accommodate difficulties encountered by litigants in filing pleadings on time, and the spirit of the reasoning in the impugned order is in line with the course set by the Supreme Court, we are of the opinion that the learned Single Judge was absolutely justified in condoning the delay in filing written statement. In fact, this order passed by the Supreme Court extending the period of limitation is continuing even as on date, for which purpose we may refer to a recent order passed by the Supreme Court on 17.12.2020 in C.A. NO. 4085/2020 titled M/s SS Group Pvt Ltd Vs. Aaditiya J. Garg & Anr. “The above order is still operative and by subsequent orders, the scope has been enlarged so that the said order applies in other proceedings also. In the present matter, it is an admitted fact that the period of limitation of 30 days to file the written statement had expired on 12.08.2020 and the extended period of 15 days expired on 27.08.2020. This period expired when the order dated 23.03.2020 passed by this Court in SMW(C) No.3 of 2020 was continuing. In view of the aforesaid, in our opinion, the limitation for filing the written statement in the present proceedings before the National Commission would be deemed to have been extended as it is clear from the order dated 23.03.2020 that the extended period of limitation was applicable to all petitions/ applications/suits/appeals and all other proceedings. As such, the delay of four days in filing the written statements in the pending proceedings before the National Commission deserves to be allowed, and is accordingly allowed. In the circumstances, we allow these appeals, set aside the order passed by the National Commission and direct that (i) the written statement filed by the appellant shall be taken on record; and, (ii) the matter shall thereafter be proceeded with expeditiously and in accordance with law.”
8. We are also unable to agree with the learned counsel for the appellant that merely because online filing was permitted by this Court with effect from 08.05.2020–or even from 22.04.2020, COVID-19 pandemic stopped hampering regular filings. We cannot lose sight of the fact that in most cases, when it comes down to filing written statements, the defendant often has to visit his counsel personally at his office to give appropriate instructions for preparation thereof.; unfortunately, this has not been possible for many litigants in the last one year owing to lockdown as well as the social distancing practices imposed on account of the pandemic. We, therefore, see no reason to disregard the respondent’s version that the written statement could not be filed within the time granted by the Court, since the respondents could not visit the office of their counsel, especially between March-July 2020, when the pandemic had just set in. In fact, even as on date, social distancing is the norm and, notwithstanding partial resumption of physical hearing at the Court, many counsel are still entering appearance virtually. On that note, we may observe that even though we are holding physical court today for which learned counsel for the respondent is present in Court, learned counsel for the appellant has chosen to join the proceedings only through video conferencing. He has duly been accommodated in this manner by us, through hybrid mode hearing. When such an accommodation–on the ground of the pandemic, is being granted to the learned counsel for the appellant, there is absolutely no reason as to why the respondents should be deprived of a similar accommodation, especially since there are orders of the Supreme Court in this regard.”
19. A perusal of order of the Supreme Court in Re: Cognizance for Extension of Limitation(Supra) clearly shows that the Supreme Court has extended the period of limitation in all the proceedings irrespective of the limitation prescribed under the general law or special law whether condonable or not which was to be extended with effect from 15.03.2020 till further orders that were to be passed by the Supreme Court. It is not the case of the plaintiffs that there has been any modification in the said order dated 23.03.2020 passed by the Supreme Court in the aforenoted judgment.
20. In my opinion, the plea of the plaintiffs that the reasons granted for seeking condonation of delay by defendant No.1 do not pertain to any activity relating to the Covid-19 pandemic appears to be misplaced. Normal functioning has been disrupted. In most cases, staff is mostly working from home and not reporting to the office. All such factors would have contributed towards the delay in filing of the written statement. The factors are implicit given the situation.
21. In view of the said stated legal position, I allow the present applications. The 92 days delay in filing the written statement is condoned. The written statement of defendant No.1 is taken on record. The applications stand disposed of accordingly.