* IN THE HIGH COURT OF DELHI AT NEW DELHI
Reserved on: 30th May, 2022
Date of decision: 05th July, 2022
+ CS(COMM) 144/2019 & IAs 4095/2019, 9172/2019
3M COMPANY ..... Petitioner
Through: Mr. Peeyoosh Kalra, Mr. Amol
Dixit, Mr. Rohan J.Kapoor, Advs.
versus
MR. VIKAS SINHA & ANR ..... Defendants
Through: Mr. Rohit Gandhi & Mr. Hargun
Singh Kalra, Advs.
CORAM:
HON'BLE MR. JUSTICE NAVIN CHAWLA
NAVIN CHAWLA, J.
O.A.No.17/2022
1. By this appeal, the defendants/appellants are challenging the order
dated 21.03.2022 passed by the learned Joint Registrar (Judicial) in I.A.
No. 16400 of 2019 dismissing the said application filed by the
defendants/appellants, seeking condonation of delay in filing of the
written statement.
Factual Background
2. Before adverting to the submissions made by the learned counsels
for the parties, certain important dates would need reference to:
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2.1 This Court, vide its order dated 19.03.2019, was pleased to issue
summons to the defendants in the suit, while granting an ad-interim
injunction in favour of the plaintiff restraining the defendants from using
the plaintiff‟s trade/service marks/ name and/or any mark
deceptively similar thereto. This Court was also pleased to appoint Local
Commissioner(s) to visit the premises of the defendants and carry out the
mandate of the commission as given in the said ad-interim order.
2.2 The Local Commissioner(s) executed the commission on
27.03.2019.
2.3 The defendant nos. 1 and 2 were formally served with the
summons on 22.04.2019, while the defendant no. 3 was served with the
summons on 23.04.2019.
2.4 The defendants filed an application, being I.A. No. 9172 of 2019
dated 10.07.2019, praying for an order of injunction under Order XXXIX
Rules 1 and 2 read with Section 151 of the Code of Civil Procedure, 1908
(in short, „CPC‟) restraining the plaintiff from approaching and/or writing
and/or communicating to the car manufacturers, authorized car dealers,
car detailing centres, workshops and other dealers making or purporting
to make wrongful representations against the defendant no. 1 which could
cause damage to the reputation and goodwill of the defendant no. 1 or
disparage the business of the defendant no. 1 in any manner, during the
pendency of the present suit.
2.5 The defendants thereafter filed their written statement on
19.08.2019, that is, on the 118th day of service of summons.
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2.6 The suit was listed before the learned Joint Registrar (Judicial) for
further proceedings on 20.08.2019, when it was pointed out to the learned
counsel for the defendants that the written statement, the affidavit of
admission/denial of the plaintiff‟s documents, and the documents filed
were not on record. The statement of the learned counsel for the plaintiff
was also recorded to the effect that the written statement had not been
filed within the statutory period. On this submission, the learned counsel
for the defendants sought time for filing an appropriate application
seeking condonation of delay in filing of the written statement.
2.7 The learned counsel for the defendants/appellants submits that the
office objection on the written statement was finally raised by the
Registry of this Court on 15.11.2019, and the said written statement was
returned under objection to the defendants/appellants only on 18.11.2019.
The same was immediately thereafter re-filed on 20.11.2019, and an
application seeking condonation of delay in filing of the written
statement, being I.A. No. 16400 of 2019, was separately filed on
21.11.2019.
2.8 The application seeking condonation of delay has been dismissed
by the learned Joint Registrar (Judicial) by way of the impugned order
dated 21.03.2022 on the ground that when the written statement was filed
by the defendants in the suit on the 118th day of service of summons, no
application for condonation of delay was filed with it. The application
for condonation of delay was filed only on 21.11.2019, after an objection
had been raised by the Registry of this Court. The same having not been
filed within the statutory period of 120 days prescribed under the
Commercial Courts Act, 2015 (in short, „Commercial Courts Act‟),
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therefore, was not maintainable in law and the defendants/appellants have
forfeited their right for filing the written statement. In reaching the above
conclusion, the learned Joint Registrar (Judicial) placed reliance on the
judgment of this Court in Ok Play India Pvt Ltd. v. A.P. Distributors
and Another, 2021 SCC OnLine Del 4043, and on the judgment of the
Supreme Court in SCG Contracts (India) Private Limited v. K.S.
Chamankar Infrastructure Private Limited and Others, (2019) 12 SCC
210.
Submissions on behalf of the defendants/appellants:
3.1 The learned counsel for the defendants/appellants submits that the
ratio of the judgment in Ok Play India (supra), insofar as it held that a
written application supported by an affidavit is a must for seeking
condonation of delay in filing of the written statement, is per incuriam.
Placing reliance on the judgment of the Supreme Court in Sesh Nath
Singh and Another v. Baidyabati Sheoraphuli Cooperative Bank
Limited and Another, (2021) 7 SCC 313, he submits that, in fact, it is not
mandatory to file an application in writing before relief under Section 5
of the Limitation Act, 1963 (in short, „the Limitation Act‟) can be granted
to the applicant and had such an application been mandatory, Section 5 of
the Limitation Act would have expressly provided so.
3.2 Further, placing reliance on the judgment of this Court in Ravindra
Jain v. Natraj Albums Industries (Pvt) Ltd., 1996 SCC OnLine Del 737,
he submits that such an application under Section 5 of the Limitation Act
can also be filed later, and it is not necessary that such an application
must be filed only along with the written statement. The subsequent
filing of the application seeking condonation of delay shall relate back to
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the date of filing of the written statement. In support of the said
proposition, he further places reliance on the decision of this Court in
State v. Vijender Singh & Ors., 2006 (91) DRJ 567 (DB), as well as the
decision of the High Court of Calcutta in State of West Bengal v.
Nripendra Nath Banerjee, AIR 1992 Cal 179.
3.3 Placing reliance on the judgment of the Supreme Court in
Government of Maharashtra (Water Resources Department)
Represented by Executive Engineer v. Borse Brothers Engineers and
Contractors Private Limited., (2021) 6 SCC 460, he submits that merely
because the present suit is a commercial suit, it cannot be said that
Section 5 of the Limitation Act would not have any application or would
have a restricted application. He submits that therefore, the principles
that are applicable to Section 5 of the Limitation Act must be applied
while considering the application of the defendants/appellants seeking
condonation of delay in filing of the written statement in the suit.
3.4 The learned counsel for the defendants/appellants, further placing
reliance on the judgment of this Court in Red Bull AG v. Pepsico India
Holdings Pvt. Ltd. and Another, 2019 SCC OnLine Del 9901, submits
that this Court, in fact, can condone the delay in filing of the written
statement even when no application seeking condonation of delay is filed
by the defendant.
3.5 The learned counsel for the defendants/appellants further submits
that the written statement and the application seeking condonation of
delay in filing of the same were filed prior to the judgment of this Court
in Ok Play India (supra). He submits that therefore, the said judgment
can have no effect on the consideration of the application of the
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defendants/appellants. He submits that, in fact, the same learned Single
Judge who passed the judgment in Ok Play India (supra), in a later
judgment dated 27.09.2021 passed in CM(M) 335 of 2021, titled
Superior Aircon Pvt. Ltd. v. National Building Construction
Corporation, opined that the judgment in Ok Play India (supra) cannot
be used to re-open the decision condoning the delay in filing of the
written statement passed earlier thereto. He submits that merely because
the application of the defendants/appellants seeking condonation of delay
in filing of the written statement had remained pending, the
defendants/appellants cannot be denied a similar benefit as granted in
Superior Aircon Pvt. Ltd. (supra).
3.6 On merits, the learned counsel for the defendants/appellants
submits that in the present case the delay in filing of the written statement
occurred because the suit was filed by the plaintiff without impleading its
Indian subsidiary, with whom the defendants had business dealings since
2012; the defendant no. 1 being its authorized distributor. The
agreements and the records between the parties were old and voluminous,
thus took a substantial amount time to collect. Further, on receipt of
summons, the defendants, in order to understand and resolve the issue
met the officers of the plaintiff and their counsel. As the same did not
materialize, the defendants/appellants engaged a counsel to defend them
in the present suit. A further delay was attributed to the commencement
of the Court Vacation, not permitting the defendants to be able to get in
touch with their counsel. He submits that therefore, the
defendants/appellants were entitled to condonation of delay in filing of
the written statement.
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Submissions on behalf of the plaintiff:
4.1 On the other hand, the learned counsel for the plaintiff submits that
the application seeking condonation of delay, having been filed beyond
120 days of service of summons on the defendants/appellants, has been
rightly dismissed by the learned Joint Registrar (Judicial). He submits
that the judgment of Ok Play India (supra) has also been relied upon by
another learned Single Judge of this Court in the decisions in Intiyaz
Sheikh v. Puma Se, 2021 SCC OnLine Del 4679 and Rachna Overseas
v. Printech System, 2021 SCC OnLine Del 5332, which in fact rejected
the arguments similar to those now raised by the learned counsel for the
defendants/appellants.
4.2 Placing reliance on the judgment dated 30.08.2016 of this Court in
CS(OS) 3355 of 2015, Gulf DTH FZ LLC v. DishTV India Ltd. &
Others, he submits that the mandate and object of the Commercial Courts
Act cannot be defeated by belatedly filing an application seeking
condonation of delay. He submits that this Court had earlier also
observed that the written statement filed belatedly and beyond the period
of 30 days must be accompanied with an application seeking condonation
of delay. He submits that the Supreme Court in Ambalal Sarabhai
Enterprises Limited v. K.S. Infraspace LLP and Another, (2020) 15
SCC 585, has held that the provisions of the Commercial Courts Act
must not be given a liberal interpretation. They should not be hampered
by the usual procedural delays plaguing our traditional legal system.
Consideration of the submissions:
5.1 I have considered the submissions of the learned counsels for the
parties. Though I have my doubts on the law declared by this court in Ok
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Play India (supra); that an application seeking condonation of delay in
filing written statement, where such application is filed beyond 120 days
of receipt of summons from the suit, cannot be considered; and that a
written application is a must for seeking condonation of delay in filing of
a written statement, in the facts of present case, I need not consider this
issue in detail as I am of the opinion that even otherwise, the
defendants/appellants have not been able to make out any case for the
grant of condonation of delay in filing of their written statement.
5.2 The object and purpose of the Commercial Courts Act is to ensure
that the commercial cases are disposed of expeditiously, fairly and at a
reasonable cost to the litigant. The Commercial Courts Act was enacted
with the intent to improve the efficiency and reduce delays in disposal of
commercial cases.
5.3 Section 16 of the Commercial Courts Act makes an amendment to
the CPC in its application to commercial suits of a specified value. One
such amendment is in Order VIII Rule 1 and Order VIII Rule 10 of the
CPC. These provisions, as applicable to commercial suits of a specified
value, read as under:-
“ ORDER VIII
WRITTEN STATEMENT, SET-OFF AND
COUNTER-CLAIM
1. Written Statement. – The defendant shall,
within thirty days from the date of service of
summons on him, present a written statement of
his defence:
Provided that where the defendant fails to file the
written statement within the said period of thirty
days, he shall be allowed to file the written
statement on such other day, as may be specified
by the Court, for reasons to be recorded in writing
and on payment of such costs as the Court deems
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fit, but which shall not be later than one hundred
twenty days from the date of service of summons
and on expiry of one hundred twenty days from
the date of service of summons, the defendant
shall forfeit the right to file the written statement
and the Court shall not allow the written
statement to be taken on record.
xxx
10. Procedure when party fails to present written
statement called for by Court.-- Where any party
from whom a written statement is required under
rule 1 or rule 9 fails to present the same within the
time permitted or fixed by the Court, as the case
may be, the Court shall pronounce judgment
against him, or make such order in relation to the
suit as it thinks fit and on the pronouncement of
such judgment a decree shall be drawn up.
Provided that no Court shall make an order to
extend the time provided under Rule 1 of this
Order for filing of the written statement.”
5.4 In SCG Contracts (India) Private Limited vs. K.S. Chamankar
Infrastructure Private Limited & Ors., (supra), the Supreme Court
summarised the effect of the above provisions as under:-
“A perusal of these provisions would show that
ordinarily a written statement is to be filed within
a period of 30 days. However, grace period of a
further 90 days is granted which the Court may
employ for reasons to be recorded in writing and
payment of such costs as it deems fit to allow such
written statement to come on record. What is of
great importance is the fact that beyond 120 days
from the sate of service of summons, the defendant
shall forfeit the right to file the written statement
and the Court shall not allow the written
statement to be taken on record. This is further
buttressed by the proviso in Order 8 Rule 10 also
adding that the court has no further power to
extend the time beyond this period of 120 days.”
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5.5 Therefore, the Commercial Courts Act brings about a substantial
change in the provisions relating to the period of filing of the written
statement and the power of the Court to condone the delay in filing of the
written statement as far as the commercial suits are concerned.
5.6 In the present case, the written statement was filed on the 118 th day
from the date of service of summons on the defendants/appellants. It was
not accompanied with an application seeking condonation of delay in
filing of the same. In fact, on 20.08.2019, the learned counsel for the
plaintiff warned the defendants/appellants that the written statement was
not on record as it was not accompanied with an application seeking
condonation of delay. The learned counsel for the defendants/appellants,
instead of giving any reason on the basis of which the
defendants/appellants could seek condonation of delay, prayed for time to
file an appropriate application in that regard. The order dated 20.08.2019
passed by the learned Joint Registrar (Judicial) is reproduced
hereinbelow:
“ It is submitted by counsel for the defendants
that the defendants have filed written statement,
affidavit of admission/denial of the documents and
documents yesterday vide diary no. 809003,
809088 & 809042. However, the same have not
come on record. Counsel for the defendants seeks
time for taking appropriate steps in this regard.
It is submitted by counsel for the plaintiff
that the defendants have not filed written
statement within statutory period. It is submitted
by counsel for the defendants that the written
statement could not be filed within 30 days but the
same has been filed within the period of 120 days.
Counsel for the defendants seeks time for filing
appropriate application for condonation of delay
in filing the written statement.
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BATRA
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At joint request, re-notify the matter for
further proceedings on 10th December, 2019.”
5.7 Even thereafter, the defendants/appellants did not file any
application seeking condonation of delay in filing of their written
statement, till 21.11.2019. The submission of the learned counsel for the
defendants/appellants that the same was filed only when the Registry of
this Court returned the written statement under objection on 18.11.2019,
to say the least, is the most fallacious and reflects the callous manner in
which the defendants/appellants have tried to defend the suit filed by the
plaintiff. The defendants/appellants, already having been warned that
their written statement would not come on record for there being no
application seeking condonation of delay in filing of the same, were not
expected to await the return of the written statement by the Registry of
this Court. On their own, they were supposed to file an application
seeking condonation of delay so that their written statement could be
brought on record. Clearly, the defendants/appellants were trying to take
advantage of the process of the Court and delay the adjudication of the
present suit. To accept the same would be to defeat the very object and
purpose of the Commercial Courts Act.
5.8 As rightly held in Ok Play India (supra), delay in filing of the
written statement can be condoned by the court “for reasons to be
recorded in writing”. Such reasons cannot be presumed by the Court, but
are to be provided by the defendants. The defendant cannot take its own
sweet time to supply such reasons to the court. The court is not to await
endlessly for the same.
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5.9 Even otherwise, the reasons given by the defendants/appellants for
seeking condonation of delay in filing of their written statement cannot
be accepted. It is contended that the delay occurred as the
defendants/appellants applied for and were supplied with the copy(ies) of
the report(s) of the Local Commissioner(s) only on 31.07.2019. As noted
hereinabove, the commission was executed on 27.03.2019 in the presence
of the representative of the defendants/appellants. The application
seeking condonation of delay in filing the written statement does not
disclose what steps were taken by the defendants to seek copy(ies) of the
report(s) of the Local Commissioner(s) earlier and, in any case, how the
non-availability of the same hampers the filing of the written statement in
time by the defendants in the suit. In fact, as noted hereinabove, the
defendants/appellants had filed another application, being I.A. No. 9172
of 2019, on 10.07.2019 seeking an order of injunction against the
plaintiff. It is not explained why the written statement was not filed even
at that stage. The submission of the defendants/appellants that the delay
occurred as they were first trying to get the dispute amicably resolved; or
in locating and contacting their counsel; and/or in compiling the
documents and records of their past dealings with the Indian subsidiary of
the plaintiff, again does not give sufficient justification to the defendants
for not filing the written statement within the statutory period.
5.10 For the above reasons, even otherwise, the defendants/appellants
were not entitled to the condonation of delay in filing of the written
statement and the same has been rightly rejected. The judgments referred
to by the learned counsel for the defendants/appellants cannot come to
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the aid of the defendants/appellants in the facts of the present case as they
have no application thereto.
Relief:
6. In view of the above, I find no merit in the present appeal. The
same is dismissed. There shall be no order as to cost.
CS(COMM) 144/2019 & IAs 4095/2019, 9172/2019
List before Joint Registrar (Judicial) for further proceedings on 19th
September, 2022.
NAVIN CHAWLA, J
JULY 5, 2022/Arya/AB/DJ
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BATRA
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