Back
IN THE HIGH COURT OF DELHI AT NEW DELHI
Shalinder Kaur, J.
Nitin Kataria - Appellant
Versus
Varun Jain - Respondent
CM(M) No. 1342 of 2023, CM APPL. No. 42865 of 2023 (Interim order) & CM APPL. No 60047 of 2023 (Early hearing)
Decided On : 11-03-2024
Defence - Commercial Suit - Code of Civil Procedure, 1908, Order VIII Rule 1, Order VI Rule 15A - The court discussed the provisions of Order VIII Rule 1 of the Code of Civil Procedure, 1908, and the new proviso substituted by the Commercial Courts Act, which allows for the filing of a written statement within 30 days from the date of service of summons, with a further period of 90 days for reasons to be recorded in writing by the Court. The court emphasized the mandatory nature of the amended provision and the consequences of non-filing of the written statement. It also highlighted the requirement for the written statement to be accompanied by a statement of truth and affidavit of admission/denial of documents as per the Commercial Courts Act. The court cited relevant case law to support its interpretation of the legal provisions and concluded that the impugned orders did not suffer from any illegality.
Fact of the Case:
The petitioner, a defendant in a commercial suit, failed to file a written statement within the stipulated time frame and without the required accompanying documents. The petitioner sought review of the order striking off the defence, citing a wrong order uploaded by the court as a reason for the delay.
Finding of the Court:
The court found that the petitioner's failure to file the written statement within the stipulated time frame and without the required accompanying documents led to the striking off of the defence, and the review application was not maintainable as there was no material error manifest on the face of the earlier order.
Issues: The issues revolved around the petitioner's failure to file the written statement within the stipulated time frame, the accompanying documents required by the Commercial Courts Act, and the maintainability of the review application.
Ratio Decidendi: The court emphasized the mandatory nature of the amended provision of Order VIII Rule 1 of the Code of Civil Procedure, 1908, and the consequences of non-filing of the written statement. It also highlighted the requirement for the written statement to be accompanied by a statement of truth and affidavit of admission/denial of documents as per the Commercial Courts Act.
Final Decision: The court dismissed the present petition, along with pending applications, as the impugned orders did not suffer from any illegality.
Key Points: - Petitioner challenged orders striking off defence and dismissing review in commercial suit due to delayed and defective written statement (!) (!) (!) - Suit for recovery of Rs. 3,38,370 filed against petitioner as legal heir; summons served on 03.06.2022, written statement filed on 18.07.2022 without condonation application, statement of truth, or affidavit of admission/denial (!) (!) (!) (!) (!) - Order VIII Rule 1 CPC mandates written statement within 30 days of summons service, extendable up to 90/120 days with recorded reasons and costs; beyond that, right to file is forfeited (!) (!) (!) (!) - Written statement must be accompanied by statement of truth (Order VI Rule 15A CPC) and affidavit of admission/denial of documents with list (Order XI Rules 7-9 CPC) (!) (!) (!) - Trial court struck off defence on 09.11.2022 as written statement was late, defective, and no condonation sought; review dismissed as time-barred and no manifest error (!) (!) (!) - Petitioner's excuse of wrong order uploaded on e-court portal rejected, as proxy counsel present, no inspection of records done, and no condonation filed (!) (!) (!) (!) - High Court held amended Order VIII Rule 1 CPC mandatory, citing SCG Contracts (2019) 12 SCC 210 and Vidhi Electrical (2022 SCC OnLine Del 1429) (!) (!) - Petition under Article 227 dismissed; no illegality in impugned orders (!)
JUDGMENT
Shalinder Kaur, J. - The Petitioner herein is seeking to impugn the orders dated 09.11.2022 and 25.03.2023 passed by the learned District Judge (Commercial Court), North District, Rohini, Delhi ("Trial Court") in CS(COMM) No. 125/2022 titled as "Varun Jain vs. Nitin Kataria" whereby the Learned Trial Court dismissed the application filed by the Petitioner herein seeking review of the order dated 09.11.2022 vide which his defence was struck off. Aggrieved by the aforesaid position, the petitioner has preferred the present petition under Article 227 of the Constitution of India.
2. The Petitioner is the defendant and the Respondent is Plaintiff in the commercial suit, which is pending adjudication before the Learned Trial Court.
3. The limited issue that arises before this court is whether the Learned Trial Court was correct in striking off the defence in view of the entire facts and circumstances of the case.
4. Shorn of superfluities, the facts necessary for the adjudication of the present matter are that the Petitioner herein is the son/legal heir of Late Shri Jai Prakash Kataria who was the proprietor of M/s Kataria Trading Company (Later renamed to M/s Nikunj Sales) who transacted with the Respondent's firm namely M/s Shri Mahavir Enterprises dealing in the business of the electrical goods, to procure certain electronic goods. However, as per the respondent herein, there was a default of payment to the tune of Rs. Rs. 3,38,370, on the part of petitioner, leading to a legal notice being sent by the Respondent vide letter dated 05.11.2020 addressed to the Late father of the petitioner. Thereafter, notably, Respondent sent another legal notice vide letter dated 03.02.2022 addressed to the Petitioner being the legal representative of late Sh. Jai Prakash Katari. Consequently, on 09.03.2022 the Respondent filed a suit for recovery of Rs. 3,38,370/-against the Petitioner.
5. The suit was listed for 10.03.2022 however notice was not issued as the physical file was not submitted by the Respondent before the Learned Trial Court and thus the case was adjourned for 31.03.2022. On the said date of hearing, the learned Presiding Officer was on leave and the matter was adjourned for 10.05.2022. On 10.05.2022, the Respondent was directed to file statement of truth within 15 days since the same was not filed as per the Commercial Courts Act, the learned Trial Court noted that only thereafter the summons for settlement of issues to the petitioner herein will be issued. The matter was posted for 09.11.2022.
6. In the meanwhile, the petitioner received the summons for settlement of issue on 03.06.2022 and the Petitioner filed his written statement on 18.07.2022 along with relevant documents stating that both the firms are different and the petitioner herein has no liabilities against the respondent as such and the case is likely to be succeeded in favour of the petitioner. It is also contended by the Petitioner that all the legal heirs of Late Sh. Jai Prakash Katari are not impleaded hence the suit is not maintainable before the Learned Trial Court.
7. The entire controversy arose in the present case, when on 09.11.2022, petitioner appeared for the first time before the learned Trial Court, however, the written statement already filed by him on 18.07.2022 was not taken on record. Thereafter, petitioner had filed a review petition before the learned trial court seeking review of the order dated 09.11.2022, which came to be dismissed by the learned trial court on 25.05.2023. Thus, aggrieved by the aforesaid orders, the petitioner has preferred the present petition.
Submissions of parties
8. Assailing the impugned order, the learned counsel for the petitioner submitted that on 09.11.2022, the proxy counsel for the Petitioner appeared and supplied the copy of the written statement to the counsel for the Respondent. However, no order was passed in the presence of the counsel, whereas as per the order, the case was called up on 09.11.2022 and the L
The mandatory nature of the amended provision of Order VIII Rule 1 of the Code of Civil Procedure, 1908, and the consequences of non-filing of the written statement, as well as the requirement for th....
The main legal point established in the judgment is that in commercial suits, the court does not have the power to condone the delay in filing the written statement beyond 120 days from the date of s....
In commercial suits, a written statement filed beyond 30 days without a condonation application may not be accepted, emphasizing strict adherence to procedural timelines.
The court emphasized the importance of complying with the provisions of the Code of Civil Procedure, 1908, and the Commercial Courts Act 2015, regarding the filing of written statements and the exten....
The main legal point established in the judgment is the requirement for the defendant to file the written statement within the prescribed period, the consequences of failing to do so, and the applica....
The Commercial Courts Act brings about a substantial change in the provisions relating to the period of filing of the written statement and the power of the Court to condone the delay in filing of th....
The court reiterated that strict compliance with procedural timelines for filing written statements and condonation applications is essential in commercial litigation.
The amended provision allowing 120 days to file a written statement under the CPC is applicable, and dismissal on procedural grounds without considering such amendment is unreasonable.
In commercial suits, written statements within 120 days from valid summons service (with plaint copy) must be accepted; extensions lean towards condonation if justified; procedural timelines subservi....
An indispensable Tool for Legal Professionals, Endorsed by Various High Court and Judicial Officers
Please visit our Training & Support
Center or Contact Us for assistance
Scan Me!
India’s Legal research and Law Firm App, Download now!
For Daily Legal Updates, Join us on :
Back to top
