HC: WS filed without Affidavit of Admission/Denial, not be taken on record & docs filed by plaintiff be deemed Admitted. Read Judgement

May 15, 2019

"Filing of the affidavit of admission/denial of documents cannot be extended beyond the maximum permitted period."

The question for consideration before the Delhi High Court Bench was, whether failure of defendant to file an affidavit of admission and denial of documents filed by plaintiff along with written statement is to be treated as a situation as contemplated by Order VIII Rule 10 of the Code of Civil Procedure, 1908 (CPC) or merely results in the documents filed by the plaintiff being deemed to be admitted by the defendant and the written statement being otherwise considered.

The facts of the case were that the plaintiff had instituted Commercial Suit for permanent injunction restraining infringement of Patent and the suit is being pursued only for the relief of damages. Counter Claim was filed by the defendant. The plaintiff filed the written statement to the Counter Claim.  Defendant/Counter Claimant argued that there was no application of the plaintiff for condonation of delay in filing the written statement to the Counter Claim, and moreover the written statement to the Counter Claim being not accompanied with an affidavit of admission/denial of documents, could not be taken on record.

The bench presided over by Hon'ble Mr. Justice Rajiv Sahai Endlaw noted that,

"On first blush it appears that there is indeed inconsistency / contradiction, in Rule 3 on the one hand, providing that written statement without affidavit of admission / denial shall not be taken on record and Rule 4 on the other hand, providing that the effect of nonfiling of affidavit of admission / denial shall be of the documents being deemed to be admitted."

Regarding the contradiction the bench observed, "On the contrary the effect of holding that in such a situation, the written statement shall be deemed to have been not filed and the documents filed by the plaintiff deemed to be admitted, would allow full play to both Rules, without making any part thereof otiose. On further consideration, no inconsistency / contradiction is found in the two Rules. This interpretation is also in consonance with the legislative intent."

The Bench ruled as under,

''I thus hold, that in the event of the written statement being filed without affidavit of admission / denial of documents, not only shall the written statement be not taken on record but the documents filed by the plaintiff shall also be deemed to be admitted and on the basis of which admission the Court shall be entitled to proceed under Order VIII Rule 10 of the CPC.''

The Bench however allowed the Plaintiff/Defendant to Counter Claim to defend the Counter Claim by paying Cost of Rs. 3 Lakhs to the Defendant/ Counter Claimant. Hence accepted the delayed WS as well as Affidavit of Admission Denial of Plaintiff as although they were filed beyond 30 days period but were within maximum time of 120 days.

Read the Judgement: