The main legal point established in the judgment is that the defendant's belief that summons had not been served and the engagement in mediation constituted sufficient cause for the delay in filing the written statement, allowing it to be taken on record.

JUDGMENT :

Jayant Nath, J.

By this judgment I will decide the objection raised by the plaintiff, namely, that the written statement of the defendants cannot be taken on record and the same be taken off the record. It was agreed that the issue as to whether the written statement is filed within the limitation period may be adjudicated upon on the basis of the submissions made in court. There is no formal application on record by the defendant for condonation of delay in filing the written statement inasmuch as the stand taken by the defendant was that the summons had not yet been served on the defendant.

2. The above suit came up for the first hearing before this court on 28.08.2018. The defendants entered appearance on that date itself perhaps having seen the matter in the list on that date. Learned counsel for the plaintiff had requested for a short adjournment on the ground that there is a possibility of settlement between the parties.

3. On the next date when the matter came up i.e. on 24.09.2018, a submission was made by the learned counsel for the parties that they would like to try and settle the matter through mediation. Parties were directed to appear before the Delhi High Court Mediation and Conciliation Centre. However, the mediation proceedings failed on 28.11.2018. The defendants have filed their written statement on 06.03.2019. The issue urged by the plaintiff is that this written statement cannot be taken on record as 120 days have lapsed from the date of receipt of summons i.e. with effect from 28.08.2018 when the defendants entered appearance.

4. Learned senior counsel for the plaintiff has vehemently argued that the written statement filed by the defendants cannot be allowed to be taken on record as it is filed beyond the period of 120 days from the date summons were received by the defendants. He relies upon the judgment of the Supreme Court in the case of M/s. SCG Contracts India Pvt. Ltd. vs. K.S.Chamankar Infrastructure Pvt. Ltd. & Ors., 2019 4 Scale 574 to support his contention that there is an absolute bar in taking the written statement on record as 120 days period has expired. He also relies upon the judgment of the Single Bench of this court in the case of OKU Tech Pvt. Ltd. vs. Sangeet Agarwal & Ors., MANU/DE/2036/2016 which judgment was upheld by the Supreme Court in the above noted judgment. He also relies upon the judgment of the Division Bench of this court in the case of Flight Centre Travels Pvt. Ltd. vs. Flight Centre Ltd. & Anr., (2013) 198 DLT 407 to contend that where the defendant has entered appearance at an initial stage without actual service of summons, there is a waiver of the right to have summons served on him. He also relies upon the judgment of the Supreme Court in the case of Siraj Ahmad Siddiqui vs. Prem Nath Kapoor, AIR 1993 SC 2525 in support of the aforenoted contention.

5. Learned senior counsel for the defendant has relied upon various statutory provisions including Section 26, 27, Order IV, Order V Rule 1 CPC and Order VII Rule 5 CPC to contend that the court has to pass an order to convert a plaint into a suit if the court finds that the plaint meets the stated requirement and then only summons are to be issued to the defendant. In the absence of a specific direction for issue of summons, it cannot be said that the summons have been issued/received by the defendant. He also relies upon Chapter IV Rule 7 and Chapter VI Rule1(f) of the Delhi High Court Rules to reinforce the aforenoted contention. He also relies upon the judgment of the Division Bench of this Court in Bright Enterprises Pvt. Ltd. & Anr. vs. MJ Bizcraft LLP & Anr., (2017) 69 PTC 596 [Del. [DB].

6. I may look at the statutory provision in this regard. Order VIII Rule 1 CPC as applicable to commercial suits read as follows:-

"1. Written statement

[(1)] The defendant shall within 30 days from the date of service of summons on him present a written statement of his defence.

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Provided that where the defendant fails to f