Point of Law : Delay in filing Written statement - Commercial Court dealing with a commercial suit had no discretion to condone delay and could not allow the written statement to be taken on record beyond the mandatory period provided under Order VIII Rule 1 CPC.

JUDGMENT :

[VIA VIDEO CONFERENCING]

1. This petition under Article 227 of the Constitution of India has been filed by the plaintiff before the learned Commercial Court, being aggrieved with its order dated 26th November, 2019, whereby it had rejected the objections raised by the petitioner/plaintiff against the belated filing of the written statement by the respondents/defendants, allowing an application filed for condonation of delay much after the period of limitation.

2. The petitioner/plaintiff had filed the suit bearing number CS (COMM) 81/2018, for the recovery of a sum of Rs.7,68,000/-. Summons were duly served on the respondent on 23rd January, 2019.

3. Mr. Anirudh Wadhwa, learned counsel for the petitioner/plaintiff submitted that the written statement had to be filed by 22nd February, 2019. However, the written statement was filed on 26th February 2019, with a delay of four days and that too, without the affidavit of admission and denial of documents, as mandated by the Delhi High Court (Original Side) Rules 2018. Neither was the written statement accompanied with any application seeking condonation of delay.

4. Learned counsel further submitted that, on 20th May 2019, the affidavit of admission and denial was filed i.e., after 118 days of the service of summons, and once again, no application for condonation of delay accompanied the filing of the said affidavit.

5. The learned Commercial Court heard the objections raised by the petitioner/plaintiff on 31st October 2019 and reserved the matter for orders for pronouncement at 4 PM that day. However, at 4 PM itself, the learned Court accepted an application filed by the respondents/defendants under Section 151 C.P.C., for condonation of the delay in filing the written statement and re-fixed the matter for orders on 26th November 2019.

6. This, according to the learned counsel for the petitioner/plaintiff, has greatly prejudiced it as the time lines in a commercial suit were strict and the petitioner/Plaintiff was entitled to a decree as the written statement and affidavit had been filed belatedly and without applications for condonation of delay. The application for condonation of delay could not have been filed and taken on record on 30th October, 2020, after the expiry of 120 days from the date of service, beyond which period, the Court had no powers to condone delay in filing the written statement. Learned counsel argued that no application for condonation of delay could have been received once the matter was fixed for orders. Reliance has been placed on the judgment of this Court in Friends Motel Pvt. Ltd. Through its director Mr. Arun Dwivedi Vs. Shreeved Consultancy LLP & ors. (judgment dated 15th January, 2020 in CS (COMM) 140/2019) and the judgment of the Supreme Court in SCG contracts India Private Limited Vs. K.S. Chamankar Infrastructure Private Limited and Others, 2019 (12) SCC 210.

7. Despite service, none had appeared to argue on behalf of the respondents/defendants.

8. The learned Commercial Court, in the impugned orders had noted the objections raised by the petitioner/plaintiff. It records an explanation offered in the application for condonation of delay, that the written statement was delayed on account of the time taken for procuring the original documents. But what prevailed upon the learned Commercial Court was the fact that though the application for condonation of delay was filed only on 31st October, 2020, the written statement and the affidavit had been filed well within the period of 120 days, the period up to which time the court had powers to condone the delay. It was also of the opinion that as the application for condonation of delay had brought out cogent reasons to explain the delay, therefore, a hyper technical view was not called for.

9. Amendments were carried out to the Civil Procedure Code through Section 16 of the Commercial Courts Act, 2015. The Supreme Court in its decision in SCG contracts case (supra) has held that these timelines are t