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IN THE HIGH COURT OF DELHI
Anup Jairam Bhambhani, J.
Cosco International Pvt. Ltd. - Appellant
Versus
Jagat Singh Dugar - Respondent
CS(COMM) 1052 of 2018
Decided On : 06-04-2022
Order V Rule 1(1) and Proviso, CPC - Summons - Specifies the time period for filing the written statement and the consequences of failing to file it within the prescribed time. Order VIII Rules 1 & 10 & Provisos, CPC - Written statement - Provides the time period for filing the written statement and the consequences of failing to file it within the prescribed time. Chapter IV Rule 3, Delhi High Court (Original Side) Rules, 2018 - Defective pleading/document - Specifies the procedure for filing defective pleadings/documents and the time period for curing such defects.
Fact of the Case:
The defendant seeks setting aside of the order declining to take the defendant's written statement on record.
Finding of the Court:
The court examines the relevant provisions of the Civil Procedure Code and the Delhi High Court (Original Side) Rules. It considers the requirement of filing the written statement within 120 days and the affidavit of admission/denial of documents. The court also refers to a previous judgment that distinguishes between the filing of the written statement and bringing it on record. The court concludes that the written statement was filed within the prescribed time and the defect of non-filing the affidavit was cured within the permissible time period.
Ratio Decidendi: The filing of the written statement and bringing it on record are separate matters. Filing the written statement without the affidavit of admission/denial of documents is a defect that can be cured. The written statement should be taken on record if it is filed within the prescribed time and the defect is cured within the permissible time period.
Result: The impugned order is set aside and the written statement is to be taken on record.
JUDGMENT
Anup Jairam Bhambhani J.(Oral)
O.A. 21/2021
1. By way of the present appeal filed under Chapter II Rule 5 of the Delhi High Court (Original Side) Rules, 2018 read with section 151 of the Civil Procedure Code1908, the defendant/applicant seeks setting aside of order dated 23.10.2020 passed by the learned Joint Registrar, declining to take the defendant's written statement on record.
2. A brief timeline of the dates that are relevant to decide the present O.A. is as follows:
3. Ms. Renuka Arora, learned counsel appearing for the appellant/defendant, submits that, as is seen from the foregoing timeline, the defendant's written statement duly supported by affidavit was filed within 120 days of the receipt of summons; however, the affidavit of admission/denial of documents, which had also been directed to be filed along with the written statement, was not filed along therewith.
4. Counsel points-out that in this backdrop, the learned Joint Registrar has taken the view that since there was delay of at least 03 months in filing of the affidavit of admission/denial of documents, over-and-above the prescribed period of 120 days stipulated for filing of the written statement, which period is sacrosanct and cannot be extended, the written statement itself cannot be taken on record.
5. Attention is drawn in this behalf to the following provisions of law contained in the Code of Civil Procedure, 1908 (`CPC') as amended by the Commercial Courts Act, 2015 and of the Delhi High Court (Original Side) Rules 2018, which are material to the present decision:
Order V Rule 1(1) and Proviso, CPC
"1. Summons.--(1) When a suit has been duly instituted, a summons may be issued to the defendant to appear and answer the claim and to file the written statement of his defence, if any, within thirty days from the date of service of summons on that defendant:
* * * * *
Provided further that where the defendant fails to file the written statement within the said period of thirty days, he shall be allowed to file the written statement on such other day, as may be specified by the court, for reasons to be recorded in writing and on payment of such costs as the court deems fit, but which shall not be later than one hundred twenty days from the date of service of summons and on expiry of one hundred twenty days from the date of service of summons, the defendant shall forfeit the right to file the written statement and the court shall not allow the written statement to be taken on record."
(emphasis supplied)
Order VIII Rules 1 & 10 & Provisos, CPC
"1) Written statement.-The defendant shall, within thirty days from the date of service of summons on him, present a written statement of his defence:
Provided that where the defendant fails to file the written statement within the said period of thirty days, he shall be allowed to file the written statement on such other day, as may be specified by the court, for reasons to be recorded in writing and on payment of such costs as the court deems fit, but which shall not be later than one hundred twenty days from the date of service of summons and on expiry of one hundred twenty days from the date of service of summons, the defendant shall forfeit the right to file the written statement and the court shall not allow the written statement to be taken on record."
* * * * *
"10) Procedure when party fails t
The filing of the written statement and bringing it on record are separate matters. Filing the written statement without the affidavit of admission/denial of documents is a defect that can be cured w....
The main legal point established in the judgment is the distinction between filing a written statement and bringing it on record, and the consequences of not filing an affidavit of admission/denial o....
Procedural delays in filing should not bar adjudication on merits when substantive filings are made within prescribed timelines, reaffirming fairness in litigation.
The central legal point established in the judgment is the interpretation and application of the rules governing the filing of a written statement and an affidavit of admission and denial of document....
The main legal point established in the judgment is that the time for filing a written statement should be reckoned from the date of the order disposing of the application under Order VII Rule 11 of ....
The period of 120 days for filing the written statement is directory and may be extended for sufficient reasons. Parties must assert their decisions clearly to avoid contributing to delays.
The main legal point established in the judgment is the curable nature of defects in the written statement and the importance of adjudicating upon the defendant's defence while ensuring time-bound di....
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....
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