Non-filing of affidavit of admission/denial of documents with the written statement results in the documents filed by the plaintiff being deemed admitted by the defendant, and the court has discretion to allow the written statement to be taken on record.

RAJIV SAHAI ENDLAW, J.

1. IA No.10200/2018 (of the defendant/Counter Claimant under Order VII Rules 3, 4 & 10 (c) of Delhi High Court (Original Side) Rules, 2018), IA No.13688/2017 (of the plaintiff under Section 151 CPC), IA No.5229/2019 (of the Plaintiff under Section 148 read with Section 151 CPC), IA No.5230/2019 (of the plaintiff under Section 151 CPC) & IA No.13689/2017 (u/O XI R-1, 3 & 5 CPC).

2. The question for consideration is, whether failure of defendant to file an affidavit of admission and denial of documents filed by plaintiff along with written statement is to be treated as a situation as contemplated by Order VIII Rule 10 of the Code of Civil Procedure, 1908 (CPC) or merely results in the documents filed by the plaintiff being deemed to be admitted by the defendant and the written statement being otherwise considered.

2. First the facts in which the said question arises.

3. The plaintiff has instituted this suit for permanent injunction restraining infringement of Patent No.193247 and for ancillary reliefs. No interim relief was granted to the plaintiff. The validity of the patent has lapsed since the institution of the suit. Thus, the relief claimed in this suit, insofar as of permanent injunction, does not survive and the suit is being pursued only for the relief of damages.

4. The defendant contested the suit. Vide order dated 29th January, 2018, after hearing the counsels liberty was granted to the defendant to if so desires, file a Counter Claim for revocation of the subject patent, after withdrawing the proceedings under Section 64 of the Patents Act, 1970 pending before the Intellectual Property Appellate Board (IPAB) and it was further ordered that if no Counter Claim was made within 30 days, liberty shall cease and the time for filing Counter Claim shall not be extended. Vide the same order, it was also provided that if Counter Claim was so filed by the defendant, written statement thereto by the plaintiff be filed within further 30 days thereafter and replication thereto if any be filed within yet further 30 days thereof and the proceedings posted on 2nd August, 2018 for framing of issues and for consideration of other pending applications.

5. The defendant, after serving an advance copy of the Counter Claim to the counsel for the plaintiff on 23rd February, 2018 filed the Counter Claim in this Court on 23rd February, 2018 and re-filed the same on 30th July, 2018.

6. The plaintiff though is found to have filed the written statement to the Counter Claim in this Court on 19th April, 2018 but the acknowledgment of the counsel for the defendant/Counter Claimant of receipt of the copy of the said written statement is of 2nd May, 2018. The written statement to the Counter Claim is found to have been refiled after 19th April, 2018 on 2nd May, 2018 and thereafter on 10th October, 2018.

7. The defendant/Counter Claimant filed replication to the written statement of the plaintiff to the Counter Claim with advance copy to the counsel for the plaintiff on 31st May, 2018 and re-filed on 2nd June, 2018.

8. The suit, in accordance with the order dated 29th January, 2018 aforesaid was listed on 2nd August, 2018 when IA No.10200/2018 of the defendant/Counter Claimant under Chapter VIII Rules 3,4&10(c) of the Delhi High Court (Original Sides) Rules, 2018 read with Order VIII Rule 10 of the CPC as amended by the Commercial Courts Act, 2015, for (i) taking off the record the written statement filed by the plaintiff to the Counter Claim; (ii) deeming all documents filed by the defendant/Counter Claimant along with the Counter Claim as admitted by the plaintiff; and, (iii) allowing the Counter Claim forthwith, was also listed and notice thereof was ordered to be issued and accepted by the counsel for the plaintiff and the proceedings adjourned to 10th October, 2018.

9. On 10th October, 2018, the suit was simply adjour