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IN THE HIGH COURT OF DELHI AT NEW DELHI
TUSHAR RAO GEDELA, J.
Machine Tools Aids India – Appellant
Versus
M/s. GNC Infra Llp & Anr. - Respondents
CM(M) 1325 of 2022 & CM Appl. 51693 of 2022 (for stay)
Decided on : 06-01-2023
WRITTEN STATEMENT - COMMERCIAL SUIT - Order VIII Rule 10, Order VIII Rule 1, Order XXXIX Rule 4, Section 151 CPC, 1908 - The court allowed the respondent's application under Order VIII Rule 10 but dismissed the petitioner's application under Order VIII Rule 1, foreclosing the right of the petitioner to file a written statement. The court examined the provisions of the Commercial Courts Act, 2015 and the amended provisions of the Code of Civil Procedure, 1908, emphasizing the strict and mandatory nature of the timelines for filing a written statement in commercial suits.
Fact of the Case:
The petitioner challenged the Trial Court's order, contending that the suit was not properly instituted due to the respondent's failure to file court fees and comply with the mandatory provision under section 12-A of the Commercial Courts Act, 2015. The petitioner also claimed that the complete set of plaint and its annexures were not furnished, and the summons/notice were never issued to the petitioner. The respondent argued that the petitioner had knowledge of the case and waived service through summons.
Finding of the Court:
The court found that the Trial Court failed to issue summons to the petitioner and concluded that the failure to file the written statement within the stipulated period or the extended period cannot be detrimental to the petitioner's interest. The court quashed the impugned order, directed the written statement to be taken on record, and instructed the Trial Court to proceed in accordance with the law and the provisions of the Code of Civil Procedure, 1908 as amended by the Commercial Courts Act, 2015.
Issues: The issues revolved around the proper institution of the suit, the furnishing of the complete set of plaint and its annexures, the issuance of summons/notice to the petitioner, and the strict and mandatory nature of the timelines for filing a written statement in commercial suits.
Ratio Decidendi: The court held that the failure to issue valid summons to the petitioner rendered the impugned order unsustainable in law, and the petitioner's knowledge of the case did not waive the requirement for summons. The court emphasized the strict and mandatory nature of the timelines for filing a written statement in commercial suits, as per the provisions of the Commercial Courts Act, 2015 and the amended provisions of the Code of Civil Procedure, 1908.
Final Decision: The petition was allowed, the impugned order was quashed and set aside, and the written statement filed by the petitioner was directed to be taken on record. The Trial Court was instructed to proceed in accordance with the law and the provisions of the Code of Civil Procedure, 1908 as amended by the Commercial Courts Act, 2015. The Registrar of the Court was directed to transmit copies of the order to the relevant District & Sessions Judges to make necessary endorsements a mandatory part of the summons to be issued in cases pertaining to Commercial Suits.
JUDGMENT :
TUSHAR RAO GEDELA, J.
1. Petitioner impugns order dated 15.10.2022, passed by the Trial Court in CS (Comm) - 350/2020 titled as M/s. GNC INFRA VS. M/s Machine Tools Aids (India) & Anr., whereby, while allowing the application under Order VIII Rule 10 of Civil Procedure Code, 1908 filed by the respondent/plaintiff, the Court had simultaneously dismissed the application under Order VIII Rule 1 of the Code of Civil Procedure, 1908 (hereinafter referred to as “CPC”) filed by the Petitioner/ Defendant no.1, foreclosing the right of Petitioner to file Written Statement.
BRIEF BACKGROUND OF THE CASE:
2. Shorn of unnecessary details on merits of the case, which is yet to be adjudicated by the Trial Court, this Court, confines its consideration only to the facts which led to the impugned order. The relevant facts as culled out from Trial Court records are as follows:-
b.) Proceedings were instituted on 09.12.2020 on which date the learned Presiding Officer was on leave and the matter was kept for consideration. On 11.12.2020, the petitioner/defendant appeared in person through video conferencing which were noted by the Court Officer as the Presiding Officer was attending a Training Programme. The matter then was posted to 21.12.2020 on which date again the petitioner/defendant was represented through his son-in-law. Since the Presiding Officer was on leave, matter was adjourned to 04.01.2021.
c.) On 04.01.2021, proceedings were held vide Video Conferencing mode and the Trial Court was pleased to pass an order of 'status quo' in presence of petitioner/defendant.
d.) On 05.01.2022, counsel Sh. Amir Khan had appeared for the petitioner/defendant. On 21.02.2022 and 07.05.2022, counsel Sh. A.N. Khan had appeared. On 05.09.2022, the appearance of Sh. R.C. Tiwari counsel for petitioner/defendant is noted on which date the file was specifically taken up on an application of defendant no. 1 under the provisions of Order XXXIX Rule 4 r/w Section 151 CPC and application u/o VIII Rule 1 of CPC, 1908.
e.) The petitioner/defendant continuously stated that the complete copy of the plaint alongwith the annexures were never furnished to him or his counsel. Counsel for the petitioner/defendant had inspected the file on 22.08.2022, 25.08.2022 and 28.08.2022 and had applied for the certified copies of the plaint and its annexures. The same were received by the counsel for the petitioner/defendant on 08.09.2022.
f.) On 15.09.2022, counsel for the petitioner/defendant pointed out that the suit is deficit in proper and correct court fee, upon which the respondent/plaintiff undertook to make good the deficit fee during the course of the day. At this stage again, petitioner/defendant asked for directions for supply of plaint with documents which were ordered to be supplied.
g.) That thereafter, vide Order dated 20.09.2022, the Learned Trial Court had given five (5) days’ time to defendant to file reply to Order VIII Rule 1 CPC, 1908 filed by the Plaintiff and also to file the Written Statement subject to the orders to be passed on the applications under Order VIII Rule 4 and also Order VIII Rule 10 of CPC, 1908.
h.) In compliance, on 24.09.2022, the Petitioner/Defendant filed their written statement alongwith statement of truth, affidavit of admission/denial, list of documents, and replies to the application under Order XXXVIII Rule 5, Order VIII Rule 10 of CPC, 1908 and Section 12A of the Commercial Courts Act, 2015.
i.) In the meanwhile, on 27.09.2022 the applications under Order XXXIX Rule 1 and 2 and Order XXXIX Rule 4 of the CPC, 1908 were disposed of in view of the oral statement of learned counsel for petitioner/defendant that the petitioner has no objection t
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