Shantanu Prakash v. Doris Chug Gim Lian

24. Rule 4 of the Rules, though in the opening part thereof states that the Court may extend the time for filing the written statement by a further period not exceeding 90 days, „but not thereafter‟, further goes on to state that in case, no written statement is filed within the extended time also, the Registrar „may‟ pass orders for closing the right to file the written statement. It is settled principle of law that the word „may‟ is not a word of compulsion; it is an enabling word and implies discretion unless it is coupled with a duty or the circumstances of its use otherwise warrants. The use of word „may‟ in Rule 4 is to confer a discretion in the Registrar in a given case not to close the right of the defendant to file the written statement even though the same has not been filed within the extended time. The discretion that was left in the Court under Order VIII Rule 1 read with Order VIII Rule 10 of the CPC as applicable to non-commercial suits, has been continued by the Rules.

25. It is to be kept in mind that the High Court of Delhi, at the time of notifying the Rules in 2018, had the benefit of the CPC as applicable to non-commercial suits as also the special provisions applicable to Commercial Suits under the Commercial Courts Act, 2015. The High Court would have been well aware of the interpretation placed by the Courts on these provisions, laying special emphasis on the words used therein. The High Court did not choose the language of the Commercial Courts Act. This shows the intent of the High Court, in its Rule making power, not to foreclose the discretion vested in the Court/Registrar to condone the delay even beyond 120 days of the service of summons if sufficient cause is shown for such non-filing. It is settled law that use of same language in a later statute as was used in an earlier one in pari materia is suggestive of the intention of the legislature that the language so used in the later statute is used in the same sense as in the earlier one, and change of language in a later statute in pari materia is suggestive that change of interpretation is intended.

26. Applying the above principle, it must be held that the High Court, not having adopted the language of the Commercial Courts Act, but of the CPC as applicable to non-commercial suits, did not intend the Court to be completely denuded of its power to condone the delay in filing of the written statement beyond 120 days of the service of the summons.”

7. Pending application(s), if any, also stand disposed of.”” He would submit that paragraph 6 of the said judgment permits the delayed filing of the written statement upon payment of costs, and the Appellant herein is willing to do the same in the present case. However, he would candidly submit that the said judgment does not consider the specific provisions, namely, Rules 4 and 5 of the High Court Rules. G.He would thereafter refer to and rely upon the judgment of the coordinate bench of this court in Vikrant Khanna vs. Amita Lamba[5], specifically paragraph 23, wherein this Court observed that there existed an uncertainty regarding the interpretation of Rule 4, Chapter VII of the High Court Rules, and the same could only be resolved through the judgment of this Court in Manhar Sabarwal vs. High Court of Delhi[6]. The relevant excerpt from Vikrant Khanna (supra) is as follows:

By the aforesaid judgments, the learned Senior Counsel would seek to trace the history of the “uncertainty in the position of law” with respect to the issue of condonation of delay in the filing of the Written Statement beyond the period of 120 days.

H.He would, thus, contend that given this uncertainty of law that existed during the relevant period, the Appellant should be shown leniency by this Court, and the delay in filing the Written Statement should, therefore, be condoned.

I. However, he would also seek to distinguish the present position of law, by highlighting instances where such condonation has been permitted, and, in particular, refers to the judgment of the learned Single Judge in Bharat Singh vs. Karan Singh[7].

Respondent herein had allowed the suit to remain dormant during the period when such uncertainty prevailed and, suddenly woke up to file an application sometime in 2022, thereby reviving the same. He would thus submit that the period of time when the issue remained dormant was now resulting in a situation where the interpretation of the rules has left him at the proverbial “short end of the stick”. K.He would thereafter seek to reiterate the proposition, which was expressly rejected in the judgment of Charu Agarwal v. Alok Kalia & Ors.8, with respect to the alleged distinction between Rules 4 and 5 of the High Court Rules, wherein this Court has held that no such distinction exists between Rules 4 and 5. The impugned judgment, in fact, at paragraph 10 thereof, has extracted the relevant portion, which is reproduced herein for the sake of convenience: “10. However, the co-ordinate Bench of this Court in Charu Agarwal (supra) after noticing the conclusion in

Amarendra Dhari Singh (supra) has held that the principle propounded by this Court in Ram Sarup Lugani (supra) was a binding principle and has held as under: “28. As would be apparent from the aforesaid conclusions which stand recorded in Amarendra Dhari Singh, the learned Judge appears to have taken the view that notwithstanding the usage of the expression “but not thereafter” in Rule 4, the penultimate part of that Rule, and which in the opinion of the learned Judge conferred a discretion upon the Registrar to either close the right to file a written statement or to grant further time, clearly appeared to suggest that the said power of condonation would still be available notwithstanding the maximum period as prescribed in that Rule having lapsed. While seeking to explain the decision in Ram Sarup Lugani, the learned Judge held that the difference between the language of Rule 4 and 5 would be crucial and decisive and thus the Registrar being empowered to extend time beyond the maximum prescribed notwithstanding the use of the expression “but not thereafter”. It becomes significant to recall here that a submission was in fact addressed before the Division Bench that the stipulation of the matter being placed before the Court after the maximum period had expired in terms of Rule 5 would appear to suggest that the prescription of time in that provision was not inviolable. The said contention was soundly rejected by the Division Bench in light of the peremptory language employed in the Rule.

29. Similarly, the decision in Harjyot Singh was sought to be explained with the learned Judge observing that the Court had failed to notice the distinction in the language employed in Rules 4 and 5 and that it had not noticed the judgment of the Court in Esha Gupta. Suffice it to note at this juncture that the decision in Esha Gupta rested principally on Order VIII and the decisions rendered in the context of that provision. However, that analogy as would be evident from the preceding parts of this decision, had been stoutly negated in Ram Sarup Lugani which had come to be delivered after the judgment in Esha Gupta. Additionally, it may be noted that the decision in Esha Gupta had in any case failed to consider the earlier decisions of the Court and which had categorically held that the principles underlying Order VIII could not have been imputed to construe the Rules of the Court.

30. The learned Judge further observed that this Court while framing the Rules consciously chose not to adopt the language as employed in the Commercial Courts Act,

201515. This, according to the learned Judge, would be indicative of the intent to preserve the discretion which stands vested in the Registrar notwithstanding the maximum period of 120 days having expired. Suffice it to state that those provisions do not employ the phrase “but not thereafter” at all. ***

35. It must with due respect be observed that neither Order VIII as originally standing in the Code nor its provisions as adopted by the 2015 Act employ the phase “but not thereafter”. The said expression stands enshrined in both Rules 4 and 5 of 2018 Rules. It was the adoption of the aforesaid phrase which was understood by the Division Bench in Ram Sarup Lugani to be of critical and vital significance. The Court is further constrained to observe that once the Division Bench had on an extensive review of Rule 5 come to conclude that the usage of the expression was indicative of a terminal point having been constructed, it would have been impermissible to take a contrary view. Ram Sarup Lugani had tested the provisions of Rule 5 based on a textual interpretation, the adoption of a special period of limitation, the recognition of the Order VIII principles not being applicable and even the inherent power not being liable to be invoked in light of the emphatic language of the provision itself. Ram Sarup Lugani had also noticed the earlier Division Bench judgments in DDA v. K.R. Builders Pvt. Ltd.18, HTIL Corporation B.V v. Ajay Kohli19 as well as in Print Pak Machinery Ltd. v. Jay Kay Papers Converters20. all of which had consistently upheld and recognised the primacy of the Rules over the provisions of the Code. The Court in Ram Sarup Lugani had also duly noticed the judgment of the Supreme Court in Desh Raj. The former decision thus constituted a binding precedent on the scope of the Rules, the mandatory nature of the timelines prescribed thereunder and that neither Order VIII nor the inherent powers of the Court being liable to be invoked to extend the period of limitation as stipulated in Rule 5.

36. While the aforesaid discussion would have been sufficient to lay the controversy at rest, since Amarendra Dhari Singh also proceeds on a perceived distinction between Rules 4 and 5, the Court deems it apposite to observe as follows. As was noticed in the preceding parts of this decision, both Rules employ the phrase “but not thereafter”. Both the phrases “not exceeding” and “but not thereafter” must clearly be accorded due weight and consideration. This was an aspect which was duly noticed in Ram SarupLugani.

37. Regard must also be had to the fact that while the penultimate part of Rule 4 is not replicated in Rule 5, that too would be of little significance when one holistically reads Rule 4. It becomes pertinent to note that the obligation to file a written statement in 30 days is originally placed by Rule 2 falling in Chapter VII. Rule 4 deals with the extension of time for filing a written statement. As is manifest from a plain reading of that provision, it confers a power on the Court to condone the delay that may have been caused and a written statement having not being filed within 30 days if it be satisfied that the Defendant was prevented by sufficient cause and for exceptional and unavoidable reasons to file the same within the prescribed period. Rule 4 then and upon such satisfaction being arrived at empowers the Court to extend the time for filing a written statement by a further period not exceeding 90 days but not thereafter.

38. The penultimate part of Rule 4 talks of the power of the Registrar to close the right of a Defendant to file a written statement if it be found that the same has not been tendered within the extended time. The use of the phrase “extended time” cannot possibly run beyond the maximum period of 120 days. In any case, the said provision as made in Rule 4 cannot possibly be countenanced or interpreted to recognise the Registrar being empowered to additionally extend time beyond the period of 120 days. The reliance which has been placed on various decisions noticed above and delivered in the context of Order VIII as found in the Code would have to be duly understood bearing in mind what had been held by the earlier Division Benches of our Court in K.R. Builders Pvt. Ltd., HTIL Corporation as well as in Print Pak. The said judgments had consistently held that the Rules as adopted by the Court would clearly prevail over and above those which may find place in the Code. All the four decisions noticed above, had been rendered prior in point of time to Esha Gupta and had neither been noticed nor considered in the said judgment. Ram Sarup Lugani while relying on the aforenoted decisions, had drawn sustenance from those decisions in support of its ultimate conclusion that Order VIII and the principles underlying the same would not apply to Rule 5.

39. The Court also deems it necessary to observe that the Rules directly fell for consideration of the Division Bench in Ram Sarup Lugani as well as the learned Judges who authored Gautum Gambhir and Harjyot Singh. The facial distinction between Rules 4 and 5 which appears to have weighed with the Court in Amarendra Dhari Singh would, in any case, not justify taking a contrary view. The Court notes that both Gautum Gambhir and Harjyot Singh were decisions rendered directly in the context of Rules 4 and 5 as enshrined in Chapter VII. This Court thus finds itself unable to accord an interpretation upon Rule 4 or 5 which would run contrary to what had been held in the earlier decisions and which necessarily bind this Court.

40. In conclusion, this Court is of the considered opinion that Gautam Gambhir, Ram Sarup Lugani and Harjyot Singh are binding precedents on the scope of Rules 4 and 5 as falling in Chapter VII of the Rules. The mere fact that the argument of a perceived discretion vesting in the addressed would not justify the judgment of the Division Bench being either ignored or doubted. The Court has already noticed the issues that arise out of the judgment of the Division Bench in Esha Gupta. The earlier decisions of the Division Benches of the Court in K.R. Builders, HTIL Corporation, and Print Pak do not appear to have been cited for the consideration of the Bench. Ram Sarup Lugani was a judgment which came to be rendered upon an exhaustive analysis of the earlier precedents rendered in the context of the Rules and the Code, the peremptory language in which Rule 5 stood couched, of how the creation of a special rule relating to limitation would exclude the permissibility of condonation or extensions being granted. While the order of the Division Bench in Tushar Bansal was based on a concession that was made, the judgment in Jamaluddin came to be pronounced with neither side having drawn the attention of the Court to the decision in Ram Sarup Lugani. The said decision proceeded on the principles which underlie Order VIII of the Code and the judgments of the Supreme Court in Kailash and Bharat Kalra rendered in the context of that provision. The Court notes that the adoption of Order VIII principles already stood negated by the earlier Division Benches in K.R. Builders, HTIL Corporation, Ajay Kohli and Print Pak. Those decisions too do not appear to have been cited for the consideration of the Court in Jamaluddin.

41. The Court thus comes to conclude that the principles enunciated in Ram Sarup Lugani would continue to bind and govern the interpretation liable to be accorded to the Rules. The Court has firstly found that there exists no distinction between Rules 4 and 5 which may be countenanced in law as justifying Rule 4 being interpreted or understood differently. In any case the binding decisions rendered on the subject constrain the Court to desist from treading down this path. The Court, bound by the rule of precedent, is of the considered opinion that such a review or reconsideration would be impermissible in law. Since the Court has found that both coordinate Bench as well as Benches of a larger coram have conclusively settled all issues that stand raised, no reference is also warranted. (emphasis supplied)”

CONTENTIONS OF THE RESPONDENTS:

5. Per contra, the learned counsel for the Respondents submits as follows:

6. The learned Senior Counsel for the Appellant, in rejoinder, would submit that-

7. We have heard learned counsel for the parties and also perused the record, including the documents and judicial precedents relied upon in support of their respective contentions.

8. Upon careful consideration, we find no infirmity in the judgment rendered by the learned Single Judge. The current position of law is that there is no provision for the condonation of delay in filing the Written Statement beyond the prescribed period. The same is the result of the judgment of the coordinate bench in Manhar Sabharwal (supra), Amit Tara (supra) as well as Delhi Gymkhana Club (supra).

9. The judgment in Manhar Sabharwal (supra) has conclusively settled the ambiguity regarding the interpretation of Rules 4 and 5 of the High Court Rules. Consequently, the law as it presently stands, clearly militates against the case presented by the Appellant.

10. Accepting the Appellant’s contention would mean applying a judgment interpreting a statutory provision prospectively, which, it is settled, is not permissible, unless specifically ordered, as otherwise, judgments apply retrospectively.

11. We now advert to the aspect of the suit being in the nature of a camouflage and also that of the chequered history as between the parties therein.

12. We are of the opinion that the said aspect is not pertinent for the purpose of determining what is clearly a pure question of law, and in respect of which no equitable consideration can be given.

13. We are also in agreement with the contention of the Respondents that the Appellants were clearly not precluded from participating in the proceedings and had, in fact, been actively pursuing their remedies in the suit as well as in other proceedings before this Court. The Appellant has been ably represented by numerous counsel throughout the proceedings.

14. The contentions raised in the application for condonation of delay, in support of the Written Statement, stating that the Appellant was constrained by prevailing Covid-19 conditions and the necessity for the Appellant to personally go through the documents, which were voluminous is also, in our opinion, not very convincing. We are also of the opinion that it is not the case that the Appellant herein lacked resources or support, given the presence of highly qualified lawyers, which is self-evident from various proceedings before this Court, and not a satisfactory explanation for the delay.

15. In view of the aforesaid facts, circumstances and the settled position of law, we are of the considered opinion that the present appeal is devoid of merit and liable to be dismissed.

16. Accordingly, the present appeals, along with pending application(s), if any, are disposed of in the aforesaid terms.

ANIL KSHETARPAL (JUDGE)

HARISH VAIDYANATHAN SHANKAR (JUDGE) AUGUST 14, 2025/v/kr/ds