The curable nature of procedural defects and the directory nature of procedural provisions under the CPC and the Commercial Courts Act, 2015.

JUDGMENT

Tushar Rao Gedela, J. (Oral)

[The proceeding has been conducted through Hybrid mode]

1. The petitioners challenge the order dated 15.09.2021 passed in CS (Comm) No.1615/2019 titled `K.L. Monga vs. The Executive Engineer, CPWD & Anr.', whereby the learned Trial Court has taken off the record the written statement as filed by the petitioners on the ground that though an affidavit was filed, however the same was not in the format of Statement of Truth as prescribed under Order VI Rule 15A of the CPC, 1908 and consequently, the defence was also struck off.

2. Ms. Nidhi Raman, learned Standing Counsel appearing for the petitioners submits that the learned Trial Court wrongly relied upon the judgment of Coordinate Bench of this Court in CM(M) No. 346/2020 titled `OK Play India Pvt. Ltd. vs M/s AP Distributors and Anr.', which is not relatable to the facts of the present case inasmuch as in the aforesaid case, this Court was considering the delay of non-filing of the affidavit of admission/denial along with the written statement and also that there was no accompanying application seeking condonation of delay in filing the same.

3. Learned Standing Counsel for the petitioners submits that the entire edifice of the impugned order is the aforesaid judgment passed by the Coordinate Bench and submits that it is trite that the judgments rendered by Courts have to be considered in view of the issues and facts raised therein.

4. Learned Standing Counsel submits that in the present case, the written statement was admittedly filed within the prescribed period alongwith an affidavit in support thereof. However, the affidavit was not in the form as prescribed by Order VI Rule 15A of CPC.

5. Learned Standing Counsel submits that the provisions of Order VI Rule 15 A (4) & (5) of CPC are only directory and not mandatory and therefore, non-filing the Statement of Truth in the prescribed format would not render the written statement liable to be taken off the record nor can the defence be struck off on the mere irregularity. Ms. Raman submits that it is a mere procedural irregularity and cannot disentitle the party to the lis from contesting the case on merits.

6. Learned Standing Counsel draws attention of this Court to page 85 of the present petition which is the summons issued to the petitioners/defendants by the learned Trial Court and submits that even the bare look at the summons would suggest that the same has not been issued in accordance with Order V Rules 1 and 5 of CPC as amended by the Commercial Courts Act, 2015. On that basis, learned Standing Counsel submits that the summons which were issued in the ordinary manner did not give any indication as to whether the written statement ought to be filed under the Commercial Courts Act or under the ordinary Civil procedure.

7. Learned Standing Counsel submits that this issue, in any case, is no more res integra on the basis of judgment rendered by Single Bench of Calcutta High Court in `Saptarshi Construction vs. Manjusree Singh and Ors.' C.O. No. 179/2021 decided on 02.02.2021. Ms. Raman submits that a Coordinate Bench judgment of this Court in `Sudhakar Singh & Anr vs. M/s Webkul Software Pvt. Ltd.' CM(M) 50/2020 decided on 28.01.2020 reported in 2020 SCC OnLine Del 436 had an occasion to deal with an issue where the defendant had not filed the affidavit of admission/denial alongwith the written statement in a commercial suit.

8. Learned Standing Counsel submits that the Coordinate Bench of this Court in Sudhakar Singh (supra) permitted the filing of the affidavit of admission/denial on the ground that no such reference was indicated in the summons of the suit which was originally filed as an ordinary civil suit. On that basis, learned Counsel submits that non-filing of statement of truth cannot be fatal at all and is a curable irregularity.

9. Ms. Raman also refers to sub-Rules (4) and (5) of Order VI Rule 15A CPC pertaining to verification of pleadings in a commercial suit t