CM(M) 946/2022

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$~57(Appellate)

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IN THE HIGH COURT OF DELHI AT NEW DELHI

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CM(M) 946/2022 & CM APPL. 40086/2022, CM APPL.

40087/2022, CM APPL. 40088/2022

CLASSICO BRANDS (INDIA) PVT. LTD ..... Petitioner

Through:

Mr.Ankit Jain, Mr.Mohit Goel,

Mr.Abhishek

Kotnala,

Mr.Deepankar

Mishra and Ms.Jyoti Goyal, Advs.

versus

MIS STELLA INDUSTRIES LIMITED

..... Respondent

Through:

Mr.Amit

Bhatia

and

Mr.Samyak Jain, Advs.

CORAM:

HON’BLE MR. JUSTICE C. HARI SHANKAR

J U D G M E N TO R A L)

%

12.09.2022

1.

CS (Comm) 89/21 was filed by the respondent against the

petitioner under the Code of Civil Procedure, 1908 (CPC) as amended

by the Commercial Courts Act, 2015. Learned Counsel are ad idem

that summons in the suit were served on the petitioner on 16^th

February 2022.

2.

Oder VIII Rule 1 of the CPC stipulates 30 days from the date of

service of summons as the time within which written statement may

be filed in response to the suit. The proviso to Order VIII Rule 1 of

the CPC, as substituted by the Commercial Courts Act, reads as under:

“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,

This is a digitally signed Judgement.

NEUTRAL CITATION NO: 2022/DHC/003615

CM(M) 946/2022

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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.”

3.

As such, while the normal period for filing a written statement

in response to the suit would expire 30 days from the date of service of

summons, the written statement may be filed within a further period of

90 days, subject to reasons to be recorded in writing by the Court.

Needless to say, it would be for the defendant to seek condonation of

delay.

4.

In commercial suits, no power vests in the Court to condone the

delay beyond 120 days.

5.

The first order under challenge in the present petition, passed by

the learned Commercial Court on 11^th May 2022, records that, on 16^th

February 2022, the petitioner entered appearance and undertook to file

written statement within 15 days. No written statement having been

filed till 11^th May 2022, the learned Commercial Court struck off the

defence of the petitioner.

6.

The petitioner applied, under Section 151 of the CPC for recall

of the aforesaid order dated 11^th May 2022. It was contended, in the

said application, that learned Counsel for the petitioner had, in fact,

not been able to virtually join the proceedings on 11^th May 2022 and

that, by the time learned Counsel for the petitioner reached the Court,

the matter already stood adjourned.

This is a digitally signed Judgement.

NEUTRAL CITATION NO: 2022/DHC/003615

CM(M) 946/2022

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7.

The learned District Judge (“learned DJ”) in its order dated 13^th

July 2022 has, after noting the aforesaid submission, rejected the

petitioner’s recall application, holding thus:

“Intriguingly, the defendant has nowhere explained in the

entire application as to why it had not filed written statement

within 15 days from 16.02.2022 as undertaken by its counsel

on that day or atleast, before 11.05.2022. It may be noted here

at the cost of repetition that the defence of the defendant was

struck off on 11.05.2022 not because of the nonappearance of

the defendant or its counsel on that day but because of

nonfiling of the written statement within the stipulated period

of time.

In view of the same, no case has been made out for

recalling of the said order dated 11.05.2022. The application

is found to be witho