COSCO (INDIA) LIMITED v. PARAMSUKH NIRMAN PVT. LTD.

1. By this application, ld. counsel for the Plaintiff wishes to raise further grounds in the OA. The said grounds shall be considered while deciding the OA. I.A. is disposed of. I.A. 8756/2019 (for delay)

2. The delay in filing the OA is condoned. I.A. is disposed of. O.A. 60/2019

3. The present appeal has been filed seeking setting aside of order dated 9th May, 2019 passed by the Ld. Joint Registrar, by which the written statement filed by the Defendant, along with the affidavit of admission/denial has been taken on record. The relevant dates in the present case are - The present suit was filed on 2nd June, 2018. The suit was registered, and summons were issued on 31st August, 2018. The returnable date was 16th October, 2018. The service report by ordinary process was 2019:DHC:3745 awaited, however, by speed post, the Defendant was served. The Court has seen the original speed post receipt, as also the tracking report. As per the same, the summons were delivered on 24th September, 2018.

4. The written statement was filed by the Defendant on 15th January, 2019, however, the same was not accompanied by an affidavit of admission/denial. The period of 120 days expired on 22nd January, 2019. The original written statement which was filed was returned under objection. The defects raised by the Registry were as under: “1) Application to be filed separately; 2) Affidavit of admission/denial not filed;

3) Documents not true copied

4) Vakalatnama without court fee stamp s/d 16/01/2019”

5. The Defendant took the written statement back on 18th January, 2018. The same was re-filed on 25th January, 2019. Some of the objections were removed, however, there were further objections which were raised by the Registry on 28th January, 2019. The objection raised was that the affidavit of admission/denial was not filed.

6. Finally, the written statement was filed along with the affidavit of admission/denial on 15th February, 2019. Ld. counsel for the Plaintiff objected to the written statement being taken on record as the same was barred, and was beyond 120 days. Further the submission was that since the affidavit of admission/denial was not filed by the Defendant, the written statement in any case could not have been taken on record. The Plaintiff objected to the condonation of delay in filing the written statement. The same was considered by the ld. Joint Registrar on 9th May, 2019. By a detailed order, the Joint Registrar condoned the delay subject to payment of Rs.10,000/- as costs to the Plaintiff. It is this order that has been appealed against in the present appeal.

7. Ld. counsel for the Plaintiff – Mr. Asheesh Jain has vehemently urged before the Court that the affidavit of admission/denial having not accompanied the written statement, the written statement cannot be taken on record. He submits that the time of 120 days is mandatory and cannot be extended, as held by Supreme Court in SCG Contracts India Pvt. Ltd. v. K. S. Chamankar Infrastructure Pvt. Ltd., Civil Appeal No. 1638/2019 (Decided on 12th February, 2019) Further, the Defendant, either with the first filing or on the second filing, failed to file the affidavit of admission/denial with the written statement and as held in Unilin Beheer B.V. v. Balaji Action Buildwell in CS (COMM) 1683/2016 Decided on 9th April, 2019, the written statement cannot be taken on record without the said affidavit. He further submits that Chapter IV of the Delhi High Court (Original Side) Rules, 2018 is very clear i.e. that when a document or pleading is found to be defective, it has to be re-filed within seven days and the total period for clearing the defects is 30 days. He submits that the seven-day period is crucial and cannot be ignored in the rule. Further, he relies upon the Division Bench judgment of the Delhi High Court in Jammu & Kashmir State Power Development Corporation v. K.J.M.C. Global Market (India) Limited in FAO (OS) 263/2016 decided on 9th March, 2017 as also Government of NCT of Delhi v. Y.D. Builders and Hotels Pvt. Ltd in FAO (OS) (COMM) 25/2017 decided on 30th January, 2017. It is his further submission that in the present case, since both the initial filings were without the affidavit of admission/denial, the written statement cannot be taken on record and the delay cannot be condoned.

8. On the other hand, ld. counsel for the Defendant has submitted that the various reasons for the delay have been contained in the application for condonation, which have also been captured by the Joint Registrar. She places reliance on Chapter IV Rule 3 of the Delhi High Court (Original Side) Rules, 2018 as also Chapter I Rule 14. The submission that she makes is that since the admission/denial affidavit was finally brought with the written statement within a period of 30 days from the initial filing, it would have at best been defect being cured and not a non-filing. She further submits that under Rule 14, the Court has the power to dispense with compliance with the rules. Ld. counsel also relies upon the recent judgment in Atlanta Limited v. National Highways & Infrastructure Development Corporation Limited and Ors. in CS (COMM) 1231/2018 decided on 9th July, 2019.

9. A perusal of the judgments cited by both the counsels for the parties, shows that: a) The filing of the written statement has to be within 120 days. The period of 120 days is mandatory; b) The written statement has to be accompanied with the affidavit of admission/denial.

10. However, under Chapter VII, Rule 3 of the Delhi High Court (Original Side) Rules, once a written statement is filed, the same would not be brought on record without the affidavit of admission/denial. It would be one of the defects in the written statement if it is not accompanied with the affidavit of admission/denial. For re-filing and removing defects, there is a total 30 days’ period which is available to parties. Chapter I Rule 14 cannot be used to dispense with the mandatory requirements under the Rules, but only in respect of those rules where it is only a question of practice and procedure. The time of seven days from re-filing within the total period of 30 days would have to be considered as a matter of practice and procedure in the present case inasmuch as there is a fundamental difference between the `filing of the written statement’ along with the affidavit of admission/denial and `bringing the same on record’. If the affidavit of admission/denial is not accompanying the written statement, however, upon the Registry pointing out the said defect, the same can be cured within 30 days. If the said defect is cured, it cannot be held that the written statement and the affidavit of admission/denial cannot be brought on record.

11. While the timelines for filing the written statement within 120 days, are absolutely mandatory, removal of defects has to be seen in the overall period of 30 days which is permitted under Rule 3 of Chapter IV. In the present case, the first filing was on 15th January, 2019, the second filing was on 25th January, 2019 and the final filing was on 15th February, 2019. The time of 120 days expired only on 22nd January 2019, thus the written statement was filed within the 120 days period. The defects, which were pointed out by the Registry i.e. not filing of admission/denial affidavit was cured within the broad frame work of Chapter IV, Rule 3 i.e. within 30 days of the initial filing of the written statement.

12. Mr. Asheesh Jain, Ld. counsel has rightly pointed out that as per Unilin Beheer B.V. (supra), the time period for filing of admission/denial affidavit which is 120 days is not extendable as per para 32 of the said judgment. The purpose of admission/denial of documents is for a party to take a stand as to whether the documents of the Plaintiff are being admitted or denied. The written statement sets out the fundamental defence of the Defendant, and the affidavit of admission/denial is merely a notation of the stand of the Defendant, which is expected to be contained in the written statement. In the present case, the written statement having been filed within the 120 days’ period, the stand of the Defendant in respect of the documents has already come on record. What is only not filed is a chart in the form provided specifically mentioning as to whether there is admission or denial of the documents. In the facts of the present case, the Court does not deem it appropriate to interfere in the order of the Joint Registrar. It is also relevant to point out that the replication has also been filed by the Plaintiff along with the affidavit of admission/denial. Both have been filed on 27th July, 2019.

13. Moreover, in the present case, the format for affidavit of admission/denial was only notified by the Delhi High Court w.e.f. 1st November, 2018. The summons in this suit was served on 24th September, 2018 which is prior to the date when the notification of the format for admission/denial was issued. Even under these circumstances, this Court is of the opinion that a minimum period of 120 days from the date when the Rule was finally notified ought to in any case be given to the Defendant for filing of the affidavit of admission/denial.