The judgment establishes the strict and mandatory nature of timelines prescribed by the CPC and the Commercial Courts Act, with no room for condonation of delay in certain circumstances.

JUDGMENT :

TUSHAR RAO GEDELA, J. (ORAL)

[The proceeding has been conducted through Hybrid mode]

CM APP No. 5590/2023

1. This is an application seeking exemption from filing certified copies of the annexures.

2. Exemption is allowed, subject to all just exceptions.

3. Application stands disposed of.

CM(M) 178/2023 & CM APP No. 5589/2023 (Stay)

4. The petitioner challenges the order dated 31.10.2022 passed in CS(COMM) 167/2022 titled ‘Aditya Birla Fashion and Retail Ltd vs Mayank Gupta’, whereby the application under Section 5 of Limitation Act, 1963 read with Section 151 of CPC, 1908 (hereinafter referred to as “CPC”) seeking condonation of delay in filing affidavit of admission/denial was dismissed.

5. Ms. Rahana Ahmed, learned counsel for the petitioner submits that the summons in the suit were served upon the petitioner/defendant on 01.12.2021. Consequent thereto, written statement alongwith the Statement of Truth was filed by the petitioner/defendant on 21.02.2022.

6. Ms. Ahmed further submits that the application under Order XIII A of CPC was filed by the respondent/plaintiff seeking summary judgment on the ground that in the absence of affidavit of admission/denial on behalf of the petitioner/defendant, the documents are deemed to have been admitted and nothing remained further for trial.

7. Learned counsel for the petitioner also submits that the affidavit of admission/denial alongwith the condonation of delay was filed on 31.08.2021. Ms. Ahmed submits that it was only on the objection raised in the application under Order XIII A of CPC filed, by the respondent/plaintiff that the petitioner/defendant realized that the affidavit of admission/denial was not accompanying the written statement so filed.

8. Learned counsel submits that having regard to the fact that the affidavit of admission/denial itself is a procedural aspect, the mere non-filing of the same alongwith the written statement is a procedural irregularity which can always be corrected by showing sufficient cause as to why it was not filed, coupled with the fact that the affidavit of admission/denial being filed simultaneously.

9. Learned counsel for the petitioner further relies upon the judgment of ‘Cosco International Pvt Ltd vs. Jagat Singh Dugar’ rendered by this Court in CS(COMM.) 1052/2018 on 06.04.2022, to submit that this Court had considered a similar case and taking into consideration the facts as arising therein, consequently, directed the Registry of this Court to take affidavit of admission/denial on record.

10. Learned counsel also submits that in view of the aforesaid judgment, this Court may also direct the learned Trial Court to take affidavit of admission/denial filed subsequently, on record and quash the impugned order.

11. Per Contra, Mr. Varun Sharma, learned counsel for the respondent submits that though the written statement alongwith the Statement of Truth, may have been filed within the stipulated period of time, however, it was only upon the non-filing of the affidavit of admission/denial as prescribed by the CPC that the respondent/plaintiff filed its application under Order XIII A of CPC seeking summary judgment.

12. Mr. Sharma, learned counsel for the respondent submits that the submission on behalf of the petitioner/defendant that he had realized his mistake only on the filing of the application under Order XIII A of CPC is not tenable, for the reason that the Rules under which the said written statement alongwith the Statement of Truth was filed also contains the stipulation in respect of the affidavit of admission/denial as well.

13. Learned counsel submits that ignorance of procedure of law is no excuse and submits that the impugned order is reasoned and has taken into consideration the judgments passed by Coordinate Bench of Court in CM(M) No. 346/2020 ‘M/s. Ok Play Pvt India Ltd vs. M/s. A.P. Distributors and Anr. as well as in ‘Unilin Beheer B.V. vs. Balaji Action Buildwell’ reported in 2019 SCC OnLine Del 8498. Learned counsel submits that