The court reiterated that strict compliance with procedural timelines for filing written statements and condonation applications is essential in commercial litigation.

JUDGMENT

Asha Menon, J.

REVIEW PET. 131/2021 & CM No.28320/2021 (by the respondents under Section 151 CPC for stay)

1. This review petition has been filed by the applicants/respondents seeking review of the order dated 17th August, 2021 passed in CM(M) 346/2020 which had been filed under Article 227 of the Constitution of India against the order dated 26th November, 2019 passed by the learned Additional District Judge-1(South East), Saket Court, New Delhi in CS(COMM) 81/2018. For convenience and clarity, the non-applicant (M/S OK PLAY INDIA PVT. LTD.) shall be described as non- applicant/petitioner whereas the applicants of this review petition (A.P. DISTRIBUTORS & ANR.) shall be referred to as applicants/respondents.

2. The facts that are relevant for the disposal of this review petition may be briefly stated. The non-applicant/petitioner had instituted a commercial suit for the recovery of money against the applicants/respondents. The written statement had been filed by the applicants/respondents belatedly and without an application seeking condonation of delay. The matter was heard and the orders on the objection of the non-applicant/petitioner that the written statement could not be taken on record as it was filed with delay and without an affidavit of admission and denial of documents and the application for condonation of delay, were reserved. The written statement which was to be filed by 22nd February, 2019 was filed with a delay of 4 days on 26th February, 2019. However, the affidavit of admission and denial was filed after a delay of 118 days on 20th May, 2019 and the application for condonation of delay was filed only on 31st October, 2019 after the learned Commercial Court had reserved the matter for orders on that same day.

3. Vide the impugned order dated 26th November, 2019, the learned Commercial Court condoned the delay on the ground that the Court should not take a hyper technical view and subject to a cost of Rs.10,000/- imposed upon the applicants/respondents to be paid equally to the opposite side and the Bharat Key Vir Funds, the written statement was taken on record. When this order was challenged before this Court, vide the judgment dated 17th August, 2021, the said order was set aside and it was held that the learned Commercial Court had erred in accepting the written statement on record which was filed beyond the period statutorily provided.

4. Mr. Shyam Moorjani, learned counsel for the applicants/respondents submitted that this Court had erred on facts and in law and therefore, the judgment dated 17th August, 2021 was liable to be reviewed. It was submitted that while recording the facts in para-No. 2 of the judgment, this Court had referred to the recovery of Rs. 7,68,000/-without referring to the interest claimed from the date the amount was due as per invoices. It was further submitted that this amount had to be quantified and court fees paid thereon but the non-applicant/petitioner had failed to do so. This objection was raised by the applicants/respondents on 15th May, 2019 and it was on 19th August, 2019 when the requisite court fees was paid. As such, the plaint had not been instituted till that date and limitation could not have started running before the plaint was validly filed.

5. Learned counsel for the applicants/respondents further submitted that an application under Order VII Rule 11 was pending and the judgment dated 17th August, 2021 had curtailed the powers of the learned Commercial Court as it was now prevented from considering the said application. Further, the discretion that vested in the learned Comm