ATLANTA LIMITED v. NATIONAL HIGHWAYS & INFRASTRUCTURE DEVELOPMENT CORPORATION LIMITED

1. This is an application by the plaintiff for a direction that the replication filed by it on 22.08.2019, be taken on record, by condoning the delay in filing under the Original Side Rules of this Court.

2. Summons in the present suit were issued on 16.11.2018. The defendant No.1 filed its written statement on 30.03.2019. The plaintiff contended that the said written statement was delayed in view of the provisions of Order VIII Rule 10 of the Civil Procedure Code, 1908 (hereinafter referred to as the “CPC”) and filed I.A.7959/2019 for a 2019:DHC:5787 direction that the written statement be taken off the record. The said application was dismissed by an order dated 09.07.2019 and it was held that the written statement had in fact been filed within time. The plaintiff’s appeal against that judgment [FAO (OS) (COMM) 184/2019] remains pending. However, in the meantime, the plaintiff has filed its replication and an affidavit of admission/denial of the documents filed by the defendant No.1 on 22.08.2019.

3. Before adverting to the contentions of the parties, the relevant rules of this Court may be noticed. Chapter VII, Rules 5, 6 and 7 deal with filing of the replication by the plaintiff and the affidavit of admission/denial of defendant’s documents. These Rules provide as follows: “CHAPTER VII [APPEARANCE BY DEFENDANT, WRITTEN STATEMETN, SET OFF, COUNTER-CLAIM AND REPLICATION] xxxx xxxx xxxx

5. Replication.-The replication, if any, shall be filed within 30 days of receipt of the written statement. If the Court is satisfied that the plaintiff was prevented by sufficient cause for exceptional and unavoidable reasons in filing the replication within 30 days, it may extend the time for filing the same by a further period not exceeding 15 days but not thereafter. For such extension, the plaintiff shall be burdened with costs, as deemed appropriate. The replication shall not be taken on record, unless such costs have been paid/deposited. In case no replication is filed within the extended time also, the orders before the Court. An advance copy of the replication together with legible copies of all documents in possession and power of plaintiff, that it seeks to file along with the replication, shall be served on the defendant and the replication together with the said documents shall not be accepted unless it contains an endorsement of service signed by the defendant/his Advocate.

6. Affidavit of admission/denial of documents with replication.-Alongwith the replication, the plaintiff shall also file an affidavit of admission/denial of documents filed by the defendant, without which the replication shall not be taken on record. [Such affidavit referred to in this Rule shall be in accordance with the provisions of Rule 4 of Order XI of the Code, as applicable under the Commercial Courts Act.]

7. Affidavit of admission/denial of documents, even if replication not filed.-Irrespective of whether the plaintiff files the replication or not, the plaintiff shall be bound to file affidavit of admission/denial of documents filed by the defendant alongwith the written statement within the time permissible for filing replication. In case the plaintiff fails to file the said affidavit, the documents filed by the defendant shall be deemed to be admitted. The Court or the Registrar, as the case be, shall exhibit documents admitted by the parties. [The affidavit referred to in this Rule shall be in accordance with the provisions of Rule 4 of Order XI of the Code, as applicable under Commercial Courts Act.]” (Emphasis supplied)

4. Mr. Chirag M. Shroff, learned counsel for the plaintiff submits that, in the facts of the present case, the replication filed by the plaintiff ought to be regarded as having been filed within the maximum permissible period of 45 days as the plaintiff’s application for rejection of the written statement was dismissed only on 09.07.2019. It is his submission that the plaintiff was not obliged to file the replication during the pendency of that application and its time to do so started running only on the date of delivery of the judgment. Mr. Shroff also drew my attention to the order dated 30.04.2019 passed in I.A. 5402/2019, by which the plaintiff was permitted to obtain a digital copy of the court record in order to ascertain whether the written statement and an affidavit of admission/denial filed by the defendant No.1, which was served upon it, was accurate and correct as per the court record. Alternatively, learned counsel argued, on the basis of principles analogous to Section 14 of the Limitation Act, 1963, that the time taken in prosecution of that application ought to be excluded from the computation of time available to the plaintiff of filing of the replication. Mr. Shroff relied upon the judgment of the Supreme Court in Consolidated Engineering Enterprises vs. Principal Secretary, Irrigation Department and Ors. 2008 (7) SCC 169 to contend that such a course is permissible even in cases where a special statute lays down a distinct time frame.

5. Mr. Rajiv Bansal, learned Senior Counsel appearing for defendant No.1 opposed the application relying upon the above quoted Rules. He submits that the time for filing of the replication and the affidavit of admission/denial of documents by the plaintiff in terms of these Rules are mandatory and incapable of extension beyond the maximum period provided therein, i.e. 30 days, extendable by 15 days. He cites the judgment of the Supreme Court in SCG Contracts India Pvt. Ltd. vs. K. S. Chamankar Infrastructure Pvt. Ltd. and Ors. AIR 2019 SC 2691, to argue that the plaintiff is not entitled to any extension of time. He also cites the recent decision by a Coordinate Bench in Odeon Builders Pvt. Ltd. vs. NBCC (India) 2019 SCC OnLine Del 10795 [CS (COMM)1261/2018, decided on 31.10.2019], which holds that the period available under the aforesaid Rules is mandatory.

6. Having heard learned counsel for the parties, I am of the view that the relief sought in this application cannot be granted. The undisputed factual situation is that the written statement was filed on 30.03.2019 and the replication was filed only on 22.08.2019. The plaintiff’s contention that the written statement was delayed, has been specifically rejected by the judgment dated 09.07.2019. In paragraph 9 of that judgment, it has been held as follows:- “9. In the above background, the written statement viewed from any angle has been filed in time. The objection that it was not accompanied by the affidavit of admission/denial is not correct. The vakalatnama was also on record. There is no doubt that as per the judgment of the Supreme Court in SCG Contracts (supra), the time for filing the written statement is mandatory. However, in the present case, which involved a construction contract, the Plaintiff itself wanted measurements to be carried out and the Defendant, in order to deal with the averments made in the Plaint, wanted to peruse the actual measurements and the Local commissioner’s report. Accordingly, the Court had considered it appropriate to grant the Defendant time to file its written statement within 30 days after the receipt of the Local Commissioner's Report. Thus, the time for filing the written statement commences as per the order of the Court - only from the date when the Local Commissioner's Report was served on the Defendants.”

7. Mr. Shroff’s contention that the plaintiff’s time for filing the replication ought to be counted only from 09.07.2019, may have been acceptable if the written statement was taken on record only by virtue of that judgment, which is not the case. The written statement had already been taken on record, and the judgment was passed on the plaintiff’s application for striking it off the record. The Court having expressly held that the written statement was filed in time, the limitation for filing of the replication started running from the date of filing of the written statement, and not from the date of the judgment.

8. The aforesaid position is also supported by a perusal of the judgment of the Supreme Court in SCG Contract (supra). In that judgment, the Supreme Court has held inter alia that the pendency of an application filed by the defendant for rejection of a plaint under Order VII Rule 11 of the CPC does not constitute a ground for extension of time for filing of the written statement. This case presents an analogous situation; what applies to the filing of the written statement equally applies to filing of the replication. It cannot be said that the pendency of an application for taking the written statement off the record would lead to a different conclusion as to the time limit for filing the replication.

9. Mr. Shroff also relied upon the order of the Court dated 30.04.2019, whereby the plaintiff was given permission to obtain a digital copy of the Court record. That order reads as follows: “IA No. 5402/2019 This is an application by the Plaintiff seeking confirmation that the written statement and affidavit of admission/denial filed on 14th March, 2019, and re-filed thereafter, is accurate and correct as per the court record. Ld. counsel for the Plaintiff is permitted to obtain a digital copy of the court record. Replication and affidavit of admission/denial be filed by the Plaintiff, within two weeks. IA is disposed of.”

10. The said order does not further the plaintiff’s case. While granting such permission, the Court clearly set a time limit of two weeks for the plaintiff to file the replication and an affidavit of admission/denial. The plaintiff’s filing was out of time even in terms of that order. Further, in any event, even on the basis that the plaintiff’s time started running only on 30.04.2019, when it was permitted to obtain the digital copy of the Court record and confirm the veracity of the written statement with which it had been served, the actual filing was beyond the permissible period of 45 days.

11. The question then arises as to whether a further extension of time can be granted. The judgment in Odeon Builders (supra), after considering the Original Side Rules of this Court and the judgment of the Supreme Court in SCG Contracts (supra), as well as the judgment of this Court in Unilin Beheer B.V. vs. Balaji Action Buildwell 260 (2019) DLT 478, has come to the categoric conclusion that the timelines set in the Rules for filing of the replication and affidavit of admission/denial are mandatory. It has been held in the said judgment as follows:- “12. So it must be held by including the words "not thereafter" in Rule 5 of Chapter II of Rules, the rule making authority intended to exclude grant of further time for filing the replication and affidavit of admission/denial of documents after the expiry of period of 45 days. The plea of Mr. Tandon was that in view of Rule 14 and 16 of Chapter I, the court has discretion to grant further time over and above what has been prescribed in Rule 5 of Chapter VII of the Rules, I am afraid such a plea is not acceptable. Firstly, Rule 14 and 16 cannot be read in any manner to make the words "not thereafter" in Rule 5 of Chapter VII otiose. In any case, it is a settled position of law in terms of the Judgment of the Supreme Court in Padam Sen and Ors. v. State of Uttar Pradesh MANU/SC/0065/1960: 1961 ALT 84 (SC) that the inherent power of the court is in addition to the power specifically conferred on the court by the Code (Rules in this case). It was held by the Supreme Court that the inherent powers are complementary to those powers and the court held that it must be held that the Court is free to exercise them for the purpose mentioned in section 151 of the Code when the exercise of those powers is not in any way in conflict with what has been expressly provided in the code or against the intentions of the Legislature. In other words, it is well-recognized that inherent power is not to be exercised in a manner which will be contrary to or different from the procedure expressly provided in the code. xxxx xxxx xxxx

14. So, it follows, the interpretation of the Rule 5 of Chapter VII in the aforesaid manner is justified, more so, when in the matter of filing a written statement under Order VIII Rule 1 CPC wherein a new proviso was added by Commercial Courts, Commercial Division and Commercial Appellate Tribunal of High Courts Act, 2015 which came into force on October 23, 2015, to mean that no further time shall be granted beyond a period of 120 days. (Ref:- M/s. SCG Contracts India Pvt. Ltd. v. K.S. Chamankar Infrastructure Pvt. Ltd. and Ors. MANU/SC/0227/2019: 2019 (4) Scale 574). No doubt, the proviso to order VIII Rule 1 CPC is different from the words used in Rule 5 of Chapter VII of the Delhi High Court (Original Side) Rules, but to have an uniformity with regard to the pleading of the parties, it must be held that 30 + 15 days for filing the replication and affidavit of admission/denial of documents is mandatory. Otherwise the position that emerges is, for the purpose of filing written statement/affidavit of admission and denial of documents by the defendant, 120 days are mandatory and not 45 days for the plaintiff to file replication. The rule must be given a purposive interpretation. Even the Coordinate Bench of this court in Unilin Beheer B.V. (supra) has also in the context of, when affidavit of admission/denial of documents is not filed along with the written statement, on an issue whether the written statement can be taken on record, has in para 28 referred to the spirit behind overhauling of the Delhi High Court Original Side Rules, 1967 and enactment of 2018 Rules by stating as under: "28. Such interpretation is also found to be in consonance with the spirit behind overhauling of the Delhi High Court (Original Side) Rules, 1967 and enactment of the 2018 Rules. With the experience of over fifty years of working of the 1967 Rules, attempt was made in the 2018 Rules to do away with the bottlenecks in the proceedings in the suits on the Original Side of this Court. One of such bottlenecks was the stage of admission/denial of documents, at which the suits remained pending, in large number of cases, for years and thereafter also not serving any purpose of expediting trial, with vague denials being made, putting the opposite party to proof of documents at the cost of consequent delays. Order XII Rule 2A of the CPC, as existed since amendment thereof of 1976, though provided that a document, which a party is called upon to admit, if not denied specifically or by necessary implication or stated to be not admitted in the pleading of that party or in reply to notice to admit, shall be deemed to be admitted but also provided that where a party unreasonably neglected or refuses to admit a document after service of notice to admit documents, the Court may direct him to pay costs to the other party by way of compensation. The same in working, led to, as aforesaid, a practice of generally denying everything in pleadings, implicitly also documents and taking advantage of resultant delays in proof of documents. This resulted in suits, most of evidence wherein was documentary, also being not decided expeditiously owing to delays in proof of documents. To eliminate such malady, in the new Rules provisions aforesaid were incorporated, making affidavit of admission/denial of documents mandatory and providing stringent consequences of non-filing of affidavit of admission/denial of documents to prevent a party from abusing the process of Courts, to its own advantage and to the prejudice of opposite parties. The Scheme in entirety, as set out hereinabove, shows that the same consequences as for defendant, also follow for plaintiff for non-filing of affidavit of admission/denial of defendant's documents"