* IN THE HIGH COURT OF DELHI AT NEW DELHI Reserved on:07.12.2022 Date of decision: 09.01.2023 + CS(OS) 128/2022 & I.A.3550/2022 AMARENDRA DHARI SINGH ..... Plaintiff Through: Mr.Abhimanyu Mahajan, Ms.Anubha Goel, Mr.Mayank Joshi and Ms.Shamhavi Kala, Advs. versus R.C. NURSERY PRIVATE LIMITED ..... Defendant Through: Mr. Aditya Dewan with Mr. Sahil Chandra, Advs.

CORAM:

HON'BLE MR. JUSTICE NAVIN CHAWLA I.A. 13986/2022 & 15442/2022

1. Application, I.A. 13986/2022, has been filed by the plaintiff under Order VIII Rule 10 of the Code of Civil Procedure, 1908 (hereinafter referred to as the ‘CPC’) read with Rule 4 of Chapter VII of the Delhi High Court (Original Side) Rules, 2018 (hereinafter referred to as the ‘Rules’) praying for the right of the defendant to file its written statement to be closed.

2. On the other hand, I.A. 15442/2022 has been filed by the defendant seeking condonation of delay of 149 days in filing of the written statement.

3. As both the applications would involve the same issue, that is, whether the delay in filing of the written statement can be condoned, and Signature Not Verified Digitally Signed By:RENUKA if so, should be condoned, they are being disposed of by this common order.

4. The plaintiff has filed the above suit, inter alia, praying for a decree of Specific Performance of an alleged Oral Agreement to Sell arrived at between the parties in relation to the property No. 10, Maulsari Avenue, Westend Greens, A F Rajokri, South West Delhi, New Delhi-

110038.

5. The suit was first listed before this Court on 04.03.2022, when summons were issued in the suit and were accepted by the learned counsel appearing for the defendant. It was directed that the written statement be filed within a period of 30 days.

6. The suit was then listed on 05.05.2022, when the defendant sought further time to file the written statement.

7. As the written statement was not filed, the plaintiff filed I.A. 13986/2022, praying that the right of the defendant to file the written statement be closed. The said application was listed before this Court on 31.08.2022, when the learned counsel for the defendant submitted that the written statement has been filed on that day itself.

8. The defendant then filed I.A. 15442/2022 praying for condonation of delay in filing of the written statement.

9. Admittedly there is a delay of 149 days in filing of the written statement by the defendant.

10. The learned counsel for the plaintiff, placing reliance on the judgments of this Court in Ram Sarup Lugani and Another v. Nirmal Lugani and Others, 2020 SCC OnLine Del 1353 and Harjyot Singh v. Manpreet Kaur, 2021 SCC OnLine Del 2629, submitted that in view of Signature Not Verified Digitally Signed By:RENUKA Rule 4 of Chapter VII of the Rules, delay beyond 90 days of the prescribed period of 30 days of filing of the written statement, that is, a delay of more than 120 days from the receipt of the summons by the defendant, cannot be condoned by this Court. He submits that such delay cannot be condoned even under Rule 16 of Chapter I of the Rules.

11. On the other hand, the learned counsel for the defendant submits that the present suit is not a Commercial Suit as defined in the Commercial Courts Act, 2015. He submits that the filing of the Written Statement is, therefore, governed by the provisions of Order VIII Rule 1 of the CPC. He submits that the maximum period by which delay in filing the written statement can be condoned is, therefore, directory in nature, and for a good cause being shown by the defendant, delay beyond such period can also be condoned. In support he places reliance on the judgments of the Supreme Court in Kailash v. Nanhku, (2005) 4 SCC 480; Desh Raj v. Balkishan, (2020) 2 SCC 708; and the order dated 09.05.2022 passed by the Supreme Court in Civil Appeal No. 3788/2022 titled Bharat Kalra v. Raj Kishan Chabra

12. Placing reliance on the order dated 15.01.2021 of this Court in FAO (OS) 55/2020 titled Tushar Bansal & Anr. v. Jai Ambey Traders