ATLANTA LIMITED v. NATIONAL HIGHWAYS & INFRASTRUCTURE DEVELOPMENT CORPORATION LIMITED & ANR.

1. This is an application under order VIII Rule 1 read with Section 151 of CPC. The relief prayed in the application is that the written statement filed by the Defendant No.1 on 30th March, 2019 ought to be taken off the record and judgment should be pronounced against the Defendant.

2. Perusal of the application shows that it is based on the averment that there was one written statement filed by the Defendant No. 1 on 14th March, 2019 which was returned under objections. Thereafter, a fresh written 2019:DHC:3284 statement was filed on 30th March, 2019 which is 186 pages long. The vakalatnama was filed only on 9th May, 2019. Since, the summons in the suit was issued on 16th November, 2018, the last date to file the written statement was 15th, March, 2019. Thus, the written statement filed on 30th March, 2019 was beyond time and is not liable to be taken on record.

3. Further, it is submitted by the Ld. Counsel for the Plaintiff that the second written statement having been filed, the first written statement running into 58 pages stands abandoned. It is further submitted that as per the Delhi High Court (Original Side) Rules, 2018 (hereinafter Original Side Rules‟), it is incumbent upon the Defendant to file the written statement along with the affidavit of admission/denial. In the present case the affidavit was not filed and hence on this ground also the written statement is not liable to be taken on record. Reliance is placed on the judgment of the Supreme Court in SCG Contracts India Pvt. Ltd. vs. K.S. Chamankar Infrastructure Pvt. Ltd. [Civil appeal No. 1638/2019 decided on 12th February 2019] (hereinafter „SCG Contracts‟) which holds that the timelines prescribed under the Commercial Courts, Commercial Division And Commercial Appellate Division Of High Courts Act, 2015 are mandatory insofar as the filing of written statements are concerned. The Ld. Counsel also submits that the vakalatnama having been filed almost two months after the written statement, the written statement even if filed on 14th March, 2019, was completely irregular and the ld. counsel who filed the said written statement did not have any authority to file the same on behalf of its client. Accordingly, prayer under Order VIII Rule 10 is made.

4. On behalf of the Defendant it is submitted that the affidavit of admission/denial was filed on 14th March, 2019 along with the first written statement. The Defendant was on caveat in the present matter and accordingly, the vakalatnama had been filed along with the caveat itself. Thus, there were no irregularities in the written statement filed on 14th March, 2019 except the fact that the Registry had raised certain objections and the same were removed and the written statement was re-filed. Further, it is submitted by the ld. Senior counsel that in any event even if the written statement dated 14th March, 2019 is taken to have been filed, the Defendant always has the right to seek amendment of the said written statement.

5. The Court has heard the ld. counsels for the parties. The summons in the present suit was issued on 16th November, 2018. The Defendants were on caveat and had in fact accepted summons and notice on the same date. On the said date, an application was also moved by the Plaintiff seeking joint measurements to be conducted at site in respect of the work executed by the Plaintiff who was a contractor. Accordingly, on 13th December, 2018 a Local Commissioner was appointed with the consent of the parties to carry out measurements at site. In the said order, the Court had clearly observed as under “I.A. 15499/2018

1. With the consent of the parties, Shri V. Velayutham, Director General (Retired), Ministry of Road Transport and Highways is appointed as a Court Commissioner in order to ascertain the total work executed by the contractor, the cost of materials, as also the cost of any temporary work which may have been executed by the contractor. The technical experts from both sides would be permitted to assist the learned Court Commissioner, to execute the commission. The Court Commissioner would visit the site where the works have been carried out in order to carry out the measurements.

2. The expenses for travel boarding and lodging of the Court Commissioner would be borne by the Plaintiff, at this stage. The fee of the Court Commissioner is fixed at Rs.2.[5] lakhs, to be shared equally between the parties, at this stage. The Court Commissioner shall carry out the measurement of the works done and the material on site as also the temporary work, if any, done on the project of Four Laning of End of Moran Bypass (km. 561.700) to Bogibeel Junction of NH-37 in the State of Assam under SARDP-NE Phase-„A‟. The measurement shall be carried out within four weeks and the report shall be submitted by the Court Commissioner, within four weeks thereafter.

3. The process of taking measurement may be videographed by the parties and the CD shall be placed on record. The parties to supply to the Court Commissioner a copy of the agreement dated 19th February, 2016 as also the designs as approved. The Court Commissioner shall coordinate with the one representative of the Plaintiff, one from Defendant No.1 and 2 each for carrying out the commission. From the Plaintiff‟s side Mr. U.M. Bhole, Vice President (Contracts) (M:9323733717), from the Defendant No.1 side Mr. Ajit Pal Singh Brab, General Manager (Projects), (M:9803011111) and from Defendant No.2 Mr. Esas Prasad, Resident Engineer (M:9127754789) will coordinate with the Court Commissioner.

4. The measurements would commence after giving at least five working days advance notice by the Court Commissioner to the Plaintiff, Defendant No.1 and 2, through the above representatives nominated by the parties.

5. I.A. is disposed of.

6. Mr. Bansal submits that the report of the Court Commissioner would be necessary in order for the Defendants to file its written statement. Upon receipt of the copy of the L.C. report, the written statement shall be filed within 30 days. The written statement is to be accompanied with an affidavit of admission/denial in accordance with the Delhi High Court (Original Side) Rules, 2018.

7. List before Court on 25th March, 2019.”

6. Thus, this was an unusual case where, owing to the facts and circumstances, the Defendant was permitted to file the written statement after the receipt of the Local Commissioner’s report i.e. within 30 days. Thereafter, another application was moved being I.A. 1685/2019 in which the Local Commissioner had to be replaced in view of the inability expressed by the earlier Local Commissioner. Thus, the Local Commissioner who was again appointed only conducted the Local Commission between 6th – 9th March, 2019 and has since submitted his report. The date of the Local Commissioner’s Report is 10th April, 2019. The Defendants clearly had 30 days from the receipt of the Local Commissioner’s Report to file the written statement. However, they have in fact filed a written statement on 14th March, 2019 initially and thereafter on 30th March, 2019.

7. Even if a strict construction is adopted and the date of the summons is considered to be 16th November, 2018, the first written statement filed on 14th March, 2019 is within time. The Court has verified from the records that the admission/denial affidavit was also filed on 14th March, 2019 and the vakalatnama was accompanying the caveat. On verification of the record, it becomes clear that on 14th March 2019, there were two indices filed. One index was for the written statement running into 1-58 pages. The second index was `Admission/Denial of the Plaintiff’s documents by way of affidavit, on behalf of Defendant no.1.’ On the first index, which bears a stamp of the Registry dated 14th March 2019, the Registry raises the following objections on 15th March 2019. “Obj: -Affidavit not attested -Affidavit of adm/denial not filed - Proof of service required Sd/ 15/3/2019” On the second index running into 3 pages, which bears a stamp of the Registry dated 14th March 2019, the following objections are raised by the Registry on 15th March 2019. “ Obj: - Proof of service required - Affidavit not attested Sd/15/3/2019” The Plaintiff has based its application under the assumption that there was only one index consisting of the written statement running into 58 pages. However, from the record it is borne out that the affidavit of admission/denial was filed – though with some technical deficiencies.

8. Even going by the Original Side Rules, the time for removing of objections under Chapter IV Rule 3 is 30 days in aggregate which would run in the present case from 14th March, 2019. The said rule is set out below