$~71 * IN THE HIGH COURT OF DELHI AT NEW DELHI % Date of decision: 12.12.2024 ,+ CM(M) 4026/2024 SIKKA KARS GLOBAL PVT LTD & ANR. .....Petitioners Through: Mr. Gurmuk Singh Arora, Ms.

Ayushi Bisht and Mr. Kunal Madan, Advocates.

versus ABHAY KUMAR JAIN .....Respondent Through: Mr. Sanjeev Ralli, Senior Advocate with Mr. Chetanya Baweja, Mr. Anmol Jain, Mr. Ravi Kant Yadav, Mr. Akshay Dhawan, Advocates with defendant in person.

CORAM:-

HON'BLE MR. JUSTICE RAVINDER DUDEJA JUDGMENT (ORAL)

RAVINDER DUDEJA, J.

CM APPL. 71981/2024 (exemption)

Allowed, subject to all just exceptions.

This application stands disposed of.

CM(M) 4026/2024 & CM APPL. 71980/2024 (stay)

1. The petition impugns the order dated 28.11.2024, passed by the learned District Judge (Commercial Court)-02, West District, Tis Hazari Court in CS (COMM) No. 225/2020.

CM (M) 4026/2024 Page 1 of 6 Signature Not Verified Digitally Signed

2. Petitioners are the defendant in the suit filed by the respondent, seeking recovery of possession, arrears of rent, damages, mesne profits and injunction. Petitioners contested the suit by filing written statement within the statutory framework.

3. The learned counsel for the petitioners submits that due to oversight by the previous counsel, the affidavit of admission/denial was not filed within the prescribed time, leading to the defence being struck off despite petitioners being granted an opportunity to rectify the omission.

4. Petitioners claim that they were misled by their counsel, who assured them that all the procedural requirements had been fulfilled, resulting in false impression that the case was proceeding appropriately. However, they later learnt that their defence had been struck off solely due to the counsel’s failure to file the affidavit on time.

5. The counsel of petitioners further submits that respondent did not invoke pre-litigation, as per requirements of Section 12 of the Commercial Courts Act, 2015 [‘the Act’] before instituting the suit.

6. It has been submitted that the Trial Court had struck off the defence of petitioners vide order dated 02.08.2023, whereafter the petitioners filed an application under Section 151 CPC for recall of order dated 02.08.2023 and under Order XVIII Rule 17 CPC for recall of respondent’s witnesses but both the applications were dismissed with cost of Rs. 25,000/- each to be paid to the respondent. Aggrieved by the impugned order dated 28.11.2024, petitioners have preferred CM (M) 4026/2024 Page 2 of 6 Signature Not Verified Digitally Signed the present petition.

7. A perusal of the Trial Court record reveals that vide order dated 10.11.2022, the Trial Court had noticed that affidavit of admission/denial was not in accordance with the format of the Act and as per the Delhi High Court Rules, and therefore, subject to the cost of Rs. 5,000/-, directions were issued to the petitioners to submit the affidavit within three days.

8. Since neither the cost was paid nor the affidavit of admission/denial was filed by the petitioners in the desired format, the defence was struck off vide order dated 13.12.2022, which is extracted hereinbelow:-

“Present: Sh.Akshay Dhawan, counsel for plaintiff with plaintiff Sh.Avinash Amit, counsel for defendant Vakalatnma on behalf of defendant is filed. Same is taken on record.

Cost of Rs.5000/- imposed upon defendant vide order dated 10.11.2022 vide which application of the defendant filed under Order IX Rule 7 CPC was allowed, is paid to the plaintiff.

Despite repeated directions, affidavit of admission/denial is not filed by defendant as per the format of Commercial Courts Act and Delhi High Court Rule. Defence is struck off.

Renotify for PE on 19.1.2023. Evidence by way of affidavit be filed 15 days in advance prior to next date of hearing with advance copy to other side.”

9. The order of the Trial Court dated 17.07.2023 reveals that affidavit of admission/denial as per the Act was subsequently filed.

The said order is extracted hereinbelow:-

“Present : Sh. Abhay Kumar Jain, pl