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2023 Supreme(Del) 5742
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
Important Points
Subject
Civil Law - Commercial Disputes
Act Referred
CENTRAL EXCISE ACT : S.35(h)
CIVIL PROCEDURE CODE : O.13(a) R.1, O.13(a) R.4(3), O.13(a) R.6, O.13(a) R.7, O.8 R.1, S.151
Commercial Courts Act : S.13(1)(a), S.16, S.21
COMPANIES ACT : S.433
CONSUMER PROTECTION ACT : S.13, S.13(1), S.13(2)(a), S.13(2)(b)(ii)
CRIMINAL PROCEDURE CODE : S.154(2)
LIMITATION ACT : S.10, S.11, S.12, S.13, S.14, S.15, S.16, S.17, S.18, S.19, S.20, S.21, S.22, S.23, S.24, S.29, S.29(2), S.4, S.5, S.6, S.7, S.8, S.9
Headnote
(B) Commercial Courts Act - Section 16 - Introduction of Order XIII-A in CPC to expedite resolution of commercial disputes - Interpretation of procedural rules to advance justice. (Paras 11, 12, 21)
Facts of the case:
The plaintiff filed an application under Order XIII-A seeking summary judgment; defendants failed to file a reply within the stipulated period, seeking condonation of delay citing various reasons including travel and medical issues.
Findings of Court:
The court condoned the delay in filing the reply to the summary judgment application, emphasizing that the procedural rule is directory and should not defeat substantive justice.
Issues: Whether the 30-day period to file a reply under Order XIII-A is mandatory or directory, and whether the delay can be condoned.
Ratio Decidendi: The court held that the 30-day period is directory, allowing for the possibility of condonation of delay based on sufficient cause shown.
Result: Application for condonation of delay allowed with costs.
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 (!)
What is the nature of the 30-day period to file a reply under Order XIII-A CPC—mandatory or directory?
What are the conditions and consequences of condoning delay in filing a reply to an Order XIII-A application?
What is the appropriate cost order when condoning the delay in filing the reply to the summary judgment application?
Mr. Amit Sethi, Mr. Arpit Goel and Ms. Ekadhana Sethi, Advocates, for the Plaintiff; Mr. Ajit Kumar Gola and Mr. Jitender Panchal, Advocates, for the Defendants
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
