Sunil Alagh vs Shivraj Puri & Anr.
2017 Latest Caselaw 7232 Del

*            IN THE HIGH COURT OF DELHI AT NEW DELHI

+                         CS(COMM) No. 1495/2016

%                                                 14th December, 2017


SUNIL ALAGH                                            ..... Appellant
                          Through:    Mr. Manav Gupta, Mr. Sahil Garg
                                       and Mr. Anupam Pandey,
                                       Advocates.
                          versus

SHIVRAJ PURI & ANR.                                ..... Respondents

                             Through:    Mr. Faheem Shah, Advocate

CORAM:
HON'BLE MR. JUSTICE VALMIKI J.MEHTA

To be referred to the Reporter or not?        YES

VALMIKI J. MEHTA, J (ORAL)

OA No.138/2017

1. This chamber appeal has been preferred by the defendant

no.1 in the suit impugning the order of the Joint Registrar dated

14.09.2017 by which Joint Registrar has struck off the written statement

filed by defendant no.1 by holding that the same has been filed beyond

the statutory period of 120 days, provided under the relevant provision of

the Commercial Courts, Commercial Division and Commercial

Appellate Division of High Courts Act, 2015. It has been held by the

Joint Registrar that the right of defendant no.1 to file written statement

stood closed on expiry of the period of 120 days of service of the

defendant no.1.

2. Learned counsel for the plaintiff argued that the defendant

no.1 in the suit was served on 11.12.2016 and vakalatnama was filed by

the defendant no.1 on 16.01.2017, and therefore period of 120 days must

begin either from 11.12.2016 or in any case from 16.01.2017 when the

vakalatnama was filed by the defendant no.1 and since admittedly the

written statement has been filed by the defendant no.1 on 24.05.2017

vide Diary no. „261929‟, the same is beyond the period of 120 days, and

hence the impugned order of the Joint Registrar dated 14.09.2017 is

correct and the present OA is unmerited.

3. Learned counsel for the defendant no.1 in response argues

that service in the suit cannot be held to be complete unless complete

copy of the paper book of the suit is supplied to the defendant and the

period of 120 days can only begin on supply of complete paper book of

the suit. It is argued that complete paper book of the suit was supplied to

the defendant no.1 only on 10.04.2017, as stated in the order of the Joint

Registrar dated 10.04.2017, and therefore, the written statement filed by

defendant no.1 on 24.05.2017 is definitely within the period of 120 days

provided under the Commercial Courts, Commercial Division and

Commercial Appellate Division of High Courts Act. For the sake of

convenience the order dated 10.04.2017 is reproduced as under:-

"Vakalatnama has been filed by counsel for defendant no.1 on 13.01.2017 and as per registry‟s report, it was filed on 16.01.2017.

Learned counsel for the defendant no.1 submits that she has not received copy of the plaint & documents and now same has been supplied by counsel for the plaintiff to counsel for the defendant no.1 in Court today.

Let written statement be filed in accordance with law with advance copy to the other side followed by replication within two weeks time thereafter.

So far as defendant no.2 is concerned, learned counsel for the plaintiff submits that defendant no.2 is a HUF of which the defendant no.1 is the Karta. This fact has been denied by counsel for defendant no.1.

Plaintiff is directed to take steps for the service of defendant no.2 on filing of PF, RC, Speed post and through approved courier including dasti.

Steps be taken within two weeks time.

Renotify this matter on 03.07.2017."

4. In my opinion the service of the defendant no. 1 in the suit

cannot be said to be complete unless complete paper book of the suit is

supplied to the defendant no.1. Surely it cannot be the position in law

that even if the defendant has not been supplied with the paper book of

the suit yet the period of 120 days will commence for filing of the written

statement failing which the right to file written statement shall stand

closed.

5. From the order dated 10.04.2007, as reproduced above, it

is quite clear that the copy of the plaint and documents was supplied

by counsel for the plaintiff to counsel for defendant no.1 on

10.04.2017. Merely because such a prayer was not made earlier

would not mean that defendant no.1 would have received copy of the

paper book prior to 10.04.2017. The period of 120 days will therefore

necessarily commence only on 10.4.2017 and not earlier.

6. In view of the aforesaid discussion impugned order of the

Joint Registrar dated 14.09.2017 is set aside. Written statement filed

by the defendant no.1 is taken on record. Registry will put the written

statement of defendant no.1 in Part I file. In view of the provisions of

Section 35 of the Commercial Courts, Commercial Division and

Commercial Appellate Division of High Courts Act which mandates

that costs must follow the event, and object is to ensure that frivolous

issues do not cause loss of time and money of a party, therefore, this

OA is allowed with costs of Rs.25,000/-. Costs shall be paid by

plaintiff to the defendant no.1 within the period of four weeks from

today. OA is accordingly disposed of.

CS(COMM) No. 1495/2016

7. List before the Joint Registrar on 27 February, 2018. Plaintiff

will now file replication to the written statement of defendant no.1

within a period of six weeks from today. Parties will file documents

in their power and possession within a period of four weeks from

today and admission/denial be done within four weeks thereafter by

filing an affidavit of admission/denial annexing thereto a list of

documents of the other side with an additional column of the

endorsement of admission/denial.

8. Parties are put to notice that in accordance with the

amended provision of CPC applicable to the Commercial Courts,

Commercial Division and Commercial Appellate Division of High

Courts Act, the admission/denial to be conducted will not be general

but will contain specific details giving reasons with respect to the

mode and manner of admission/denial.

9. Parties are also notified that the date fixed for framing of

issues will also be a date for case management hearing as also for

hearing of an application under Order XIIIA CPC in case any of the

parties chooses to file the same and pleadings on this application will

be completed by the Joint Registrar before listing the matter in the

Court for framing of issues and case management hearing.

DECEMBER 14, 2017                           VALMIKI J. MEHTA, J
rb