Delhi High Court
Ais Glass Solutions Limited vs Moser Baer Solar Limited & Ors on 6 November, 2017
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* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ CS(COMM) 1335/2016
AIS GLASS SOLUTIONS LIMITED ..... Plaintiff
Through Mr. Neeraj Yadav, Advocate
versus
MOSER BAER SOLAR LIMITED & ORS ..... Defendants
Through Mr. K.P.S. Kohli with
Ms. Sharmistha Ghosh and
Mr. Mahipal Singh, Advocates
% Date of Decision: 06th November, 2017
CORAM:
HON'BLE MR. JUSTICE MANMOHAN
JUDGMENT
MANMOHAN, J (Oral):
On the last date of hearing, this Court had directed the defendant no. 2
to be personally present in Court. Today, learned counsel for the defendant
no. 2 states that the defendant no. 2 is seriously unwell and is suffering from
oral cancer and a pacemaker has also been installed.
Keeping in the aforesaid averments, the defendant no. 2 is exempt
from personal appearance.
I.A. 5923/2017
1. It is pertinent to mention that present application has been filed on
behalf of the defendant no. 1 seeking extension of time for filing the written
statement.
2. Mr. K.P.S. Kohli, learned counsel for the defendant no. 1/applicant
submits that after coming into force of Commercial Courts, Commercial
Division and Commercial Appellate Division of High Court Act, 2015 (for
short "the Act"), this Court can and should prescribe a new time period
within which the defendant can file a written statement. In support of his
submissions, he relies upon Proviso to Section 15(4) of the Act, 2015, which
is reproduced hereinbelow:-
"15. Transfer of pending cases.--
xxxx xxxx xxxx xxxx
(4) The Commercial Division or Commercial Court, as the
case may be, may hold case management hearings in respect
of such transferred suit or application in order to prescribe
new timelines or issue such further directions as may be
necessary for a speedy and efficacious disposal of such suit or
application in accordance with Order XIV-A of the Code of
Civil Procedure, 1908 (5 of 1908):
Provided that the proviso to sub-rule (1) of Rule 1 of Order V
of the Code of Civil Procedure, 1908 (5 of 1908) shall not
apply to such transferred suit or application and the court
may, in its discretion, prescribe a new time period within
which the written statement shall be filed."
3. Mr. Kohli relies upon judgment of a Coordinate Bench of this Court
in Telefonaktiebolaget L.M. Ericsson Vs. Lava International Limited,
2015 SCC OnLine Del 13903 wherein it has been held as under:-
"17. Thus, there is an exemption provided under the
Commercial Courts Ordinance for matters that were filed
prior to the notification of the Ordinance, whereby the Court
has the discretion to set a case management timeline and
extend the time period for completion of pleadings including
the written statement."
4. Mr. Kohli points out that present application was filed by the
defendant no. 1 within one hundred twenty days period from the date the
proceeding filed under Section 22 of the Sick Industrial Companies (Special
Provisions) Act, 1985 (for short "SICA") abated.
5. A perusal of the paper book reveals that the present suit was filed on
7th May, 2015. On 12th June, 2015, the defendant no. 1 was registered under
Section 15(1) of SICA by Board for Industrial & Financial Reconstruction
(BIFER) and consequently was entitled for protection under Section 22 of
SICA even prior to the date it received summons and the paper book.
6. On 21st September, 2016, the present suit was re-numbered as a
commercial suit.
7. On 1st February, 2016, proceedings initiated by the defendant no. 1
under the SICA abated and the protection under Section 22 of SICA cease to
apply.
8. Admittedly, after thirty days, extendable upto ninety days period of
limitation prescribed for filing of written statement, the defendant no. 1 filed
the present application on 16th March, 2017 being I.A. 5923/2017 seeking
extension of time by two weeks to file the written statement. It is pertinent
to mention that a Coordinate Bench of this Court in OKU Tech Private
Limited Vs. Sangeet Agarwal & Ors., CS(OS) 3390/2015 has held that a
Court in a commercial suit cannot extend the time for filing the written
statement beyond one hundred twenty days after service of summons.
9. In fact, the written statement was filed on 7th July, 2017, i.e., more
than eight months after the protection under Section 22 of SICA had ceased
to apply and ninety eight days after the time of two weeks sought had
expired.
10. This Court is also of the opinion that if the defendant no. 1's
submission is accepted, it would mean that a defendant in an ordinary suit
who has not filed its written statement for three to four years, would get a
right to file the written statement after coming into force of the Act, 2015.
11. The intention of the Legislature while passing the Act, 2015 was to
expedite the hearing and disposal of the commercial suits. If the submission
advanced by learned counsel for the defendant no. 1 is accepted it would
negate the very intent behind the passing of the Act, 2015.
12. This Court is also of the view that filing an application seeking
extension of time to file a written statement does not stop the clock.
13. Since in the present case the written statement has been filed eight
months after the protection under Section 22 of SICA had lapsed, this Court
is of the view that the defendant no. 1's written statement cannot be taken on
record.
14. Consequently, present application for extension of time to file written
statement is dismissed and the Registry is directed to return the written
statement to defendant no. 1.
CS(COMM) 1335/2016
Learned counsel for the plaintiff prays for and is permitted to file
additional documents as well as an application under Order 8 Rule 10 CPC.
Accordingly, list before the Joint Registrar on 15th December, 2017.
MANMOHAN, J
NOVEMBER 06, 2017
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