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IN THE HIGH COURT OF DELHI AT NEW DELHI
Sachin Datta, J.
Shri Satish Kumar Sakuja - Appellant
Versus
M/s. Appolo Cranes Pvt . Ltd . & Ors. - Respondents
CS(COMM) No. 41 of 2018
Decided On : 15-12-2023
Key Points: - The 30-day period to file a reply under Order XIII-A CPC is directory, not mandatory; condonation of delay is permissible with costs (!) (!) (!) - The court may condone the delay in filing the reply upon showing sufficient cause and due diligence, with potential costs to the plaintiff; delay may be condoned as an exceptional measure (!) (!) (!) - In this case, condonation of delay was allowed subject to costs of Rs. 50,000 payable to the plaintiff within four weeks, and the reply placed on record subject to payment (!)
JUDGMENT
Sachin Datta, J. - IA No.2154/2023 (filed on behalf of the defendants seeking condonation of delay in filing reply to the application under Order XIII-A Rule 1, 6 & 7 read with Section 151 CPC) and 19935/2022 (under Section 151 CPC, filed on behalf of plaintiff seeking closure of right of the defendants to file reply to IA No.10358/2022)
1. The facts relevant for the disposal of the present applications, briefly stated, are that the plaintiff has filed an application [IA. No. 10358 / 2022] under Order XIII-A of Code of Civil Procedure, 1908 ("CPC") seeking a summary judgment. Vide order dated 08.07.2022, notice of the said application was issued and accepted by the defendants and the defendants were given four weeks' time to file a reply. However, no reply came to be filed in the said time period. Vide order dated 11.10.2022, the defendants were granted a further period of two weeks to file a reply. No reply came to be filed even in this extended time period. On 25.11.2022, the present application [IA No. 19935/2022] came to be filed by the plaintiff seeking closure of the right of the defendants to file reply to the application under Order XIII-A of CPC. On 28.11.2022, reply to the application under Order XIII-A of CPC came to be filed on behalf of the defendants. Subsequently, on 01.02.2023, the present application [IA No. 2154/2023] under Section 5 of the Limitation Act, 1963 seeking condonation of delay of 32 days (calculated from expiry of two weeks from 11.10.2022) in filing reply to the application under Order XIII-A of CPC came to be filed by the defendants.
SUBMISSIONS OF THE PARTIES
2. Learned counsel for the plaintiff has submitted that the period of 30 days to file reply to the application under Order XIII-A, CPC, as prescribed under Sub-Rule 3 of Rule 4 thereof, is mandatory in nature. It is submitted that the same is evident from deliberate use of the words "whichever is earlier" by the legislature in the said sub-rule. It is submitted that "may" occurring in the said sub-rule should be read as "shall" to be in consonance with the objective behind the introduction of Order XIII-A, CPC, i.e., speedy redressal of commercial disputes. It is submitted that since the defendants have failed to file reply to the application of the plaintiff under Order XIII-A, CPC, within a period of 30 days from the date of receipt of notice of the said application, their right of file reply shall be closed. In support of his submissions, learned counsel for the plaintiff has placed reliance on Su-Kam Power Solutions Ltd. vs. Kunwer Sachdev & Anr., 264 (2019) DLT 326, Syrma Technology Pvt. Ltd. vs. Powerwave Techlonogy Sweeden AD (in bankruptcy), 2020 SCC Online Mad 5737, Siddhatha Singh vs. Ajit Singh Bawa (Deceased) through Lrs., 2022 SCC OnLine Del 2007, Bachahan Devi vs. Nagar Nigam, Gorakhpur, (2008) 12 SCC 372, Sarla Gael & Drs. vs. Kishan Chand, (2009) 7 SCC 658 and Surender Singh Deshwal @ Col.S.S. Deshwal & Drs vs. Virender Gandhi, (2019) 11 SCC 341
3. It is further submitted that Order XIII-A, CPC, by its language employed, has expressly barred the application of Section 4 to 24 of the Limitation Act, thereby rendering it impermissible for any application for condonation of delay to be filed, in view of Section 29(2) of Limitation Act. Reliance has also been placed on a judgement of the Supreme Court in Hukumdev Narain Yadav vs. Lalit Narain Mishra, (1974) 2 SCC 133, to contend that even where the special law does not exclude the provisions of Sections 4 to 24 of the Limitation Act by an express reference, it would nonetheless be open to the Court to examine whether and to what extent the nature of those provisions or the nature of the subject-matter and scheme of the special law, exclude their operation. It is submitted that applicability of Section 5 of Limitation Act to Order XIII-A, CPC would defeat the intention of legislature behind the introduction of Order XIII-A, CPC, i.e., speedy redressal of commercial disputes
The 30-day period to file a reply under Order XIII-A of CPC is directory, allowing for condonation of delay subject to sufficient cause and costs.
The main legal point established in the judgment is the limitation on extending the filing period for written statements under CPC, 1908, and the impact of the COVID-19 pandemic on limitation periods....
The court holds that delays in filing additional written statements can be condoned under Rule 9 of Order VIII provided there is sufficient cause and no prejudice is caused to the opposing party.
The Rules framed by the Delhi High Court (Original Side) Rules, 2018, prevail over the provisions of the Civil Procedure Code, 1908 (CPC).
Section 148 CPC does not apply to the commercial court, even if accepted, the Commercial Court shall have power to provide a new time period for filing written statement under Section 15(4) of the Ac....
In commercial disputes, the interpretation of 'sufficient cause' for condonation of delay must be stringent, ensuring timely resolution and preventing negligence from being a basis for delays.
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