Indian Style Wrestling ... vs Wrestling Federation Of India
2019 Latest Caselaw 3835 Del

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*    IN THE HIGH COURT OF DELHI AT NEW DELHI

%                                           Date of decision: 20.08.2019

+     CS(COMM) 1303/2018

      INDIAN STYLE WRESTLING ASSOCIATION
      OF INDIA AND ANR.                       ..... Plaintiffs
                    Through Mr.Ashutosh Kumar and Mr.Palash
                            Maheshwari, Advs.

                         versus

      WRESTLING FEDERATION OF INDIA        ..... Defendant
                   Through Mr.Rakesh Kumar Singh, Advs.

      CORAM:
      HON'BLE MR. JUSTICE JAYANT NATH

JAYANT NATH, J.(ORAL)

OA No. 89/2019 and IA No. 11193/2019
1.    This OA No. 89/2019 is filed by the defendant under Rule 5 of
Chapter II read with Rules 14 and 16 of Chapter I of the Delhi High Court
(Original Side) Rules 2018 against the order/judgment dated 15.07.2019
passed by the learned Joint Registrar in IA No. 6721/2019.
2.    By the impugned order the learned Joint Registrar dismissed the
application i.e. IA No. 6721/2019 for condonation of delay in filing the
written statement. The learned Joint Registrar noted that the defendant is
seeking condonation of delay of 83 days in filing the written statement. As
per the CPC, it was noted, the defendant had to file the written statement
within the statutory period of 30 days but not later than 120 days. Summons




CS(COMM) 1303/2018                                            Page 1 of 8
 of the suit were served on the defendant on 20.12.2018. The impugned order
further notes that as per the application filed by the defendant various
grounds are given for the delay including that a complete set of the
documents was not received. It is also stated that the draft written statement
was said to be ready in the last week of March 2019 but the same was filed
in April, 2019. It is also stated in the application that the study of the plaint,
IAs and documents took longer time and the counsel was engaged in various
professional work. It is also noted that the written statement was filed on
15.04.2019 but due to objection, it was re-filed on 01.05.2019. There is no
application seeking condonation of delay in re-filing of the written
statement. Based on the above, the application was dismissed.
3.    On the last date of hearing, namely, 08.08.2019, this court had noted
the submission of the learned counsel for the defendant that he would take
steps to file appropriate application seeking condonation of delay in re-filing
the written statement. The said application has now been filed which is IA
No. 11193/2019.
4.    Learned        counsel   appearing   for   the   plaintiff/respondent       has

vehemently opposed the present appeal and the application. He states that in terms of Order 8 Rule 1 CPC, the defendant was obliged to file written statement within 30 days. In case of a delay, the court has discretion of maximum 120 days to grant time to the defendant. He states that the written statement was actually re-filed on 01.05.2019 which would be the appropriate date for filing of the written statement which is beyond the period of 120 days from the date of service of summons on the defendant. He further states that the reliance of the defendant on Chapter IV Rule 3 of the Delhi High Court (Original Side) Rules is misplaced as no rules can

prescribe a time beyond 120 days for filing of the written statement. He also relies upon Section 16(3) and Section 21 of the Commercial Court Act 2015 to plead that in case there are any rules which are contrary to the Commercial Courts Act, the provisions of the Commercial Courts Act would apply. To support his above submission, he relies upon the judgment of the Division Bench of this court in the case of HPL (India) Ltd. & Ors. vs. QRG Enterprises & Ors., 238 (2017) DLT 123.

5. Order 8 Rule 1 CPC as amended read by the Commercial Courts Act reads as follows:-

"ORDER VIII : [WRITTEN STATEMENT, SET-OFF AND COUNTER-CLAIM]

1. Written statement-The defendant shall, within thirty days from the date of service of summons on him, present a written statement of his defence.

Provided that where the defendant fails to file the written statement within the said period of 30 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, but which shall not be later than 120 days from the date of service of summons, and on expiry of 120 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."

6. Hence, the defendant has an outer limit of 120 days to file the written statement at best.

7. Chapter IV Rule 3 CPC of the Delhi High Court (Original Side) Rules reads as follows:-

"CHAPTER IV PRESENTATION OF PLEADINGS, OTHER DOCUMENTS AND MAINTENANCE OF CASE FILES

xxx

3. Defective pleading/ document.-(a) If on scrutiny, the pleading/ document is found defective, the Deputy Registrar/ Assistant Registrar, In-charge of the Filing Counter, shall specify the objections, a copy of which will be kept for the Court Record, and return for amendment and re-filing within a time not exceeding 7 days at a time and 30 days in aggregate. (b) If the pleading/ document is not taken back for amendment within the time allowed under sub-rule (a), it shall be registered and listed before the Court for its dismissal for non-prosecution. (c) If the pleading/ document is filed beyond the time allowed under sub- rule (a) the pleading/ document must be accompanied with an application for condonation of delay in re-filing of the said pleading/ document. (d) Any party aggrieved by any order made by the Registrar under this Rule may, within fifteen days of the making of such order, appeal against it to the Judge in Chambers.

xxx"

8. Under the aforesaid Rule, if on scrutiny the pleadings/document is found to be defective, the same has to be returned for removal of the objection and re-filing within a time not exceeding 7 days at a time and 30 days in aggregate. If there is a delay in re-filing beyond the said period, the matter under Chapter IV Rule 3(b) would be listed before court for appropriate orders.

9. The Division Bench of this court in HPL (India) Ltd. & Ors. vs. QRG Enterprises & Ors.(supra) in the above context held as follows:-

"25. Section 16 of the said Act is also important in this discussion. Sub-section (1) of Section 16 makes it clear that the

provisions of the CPC shall, in their application to any suit in respect of a commercial dispute of a specified value, stands amended in the manner as specified in the Schedule to the said Act. Sub-section (2) makes it clear that the Commercial Division and the Commercial Court shall follow the provisions of the CPC, 1908, as amended by this Act, in the trial of a suit in respect of a commercial dispute of a Specified Value. Sub- section (3) stipulates that where any provision of any rule of the jurisdictional High Court or any amendment to the CPC, by the State Government is in conflict with the provisions of the CPC, as amended by the said Act, the provisions of the CPC, as amended by the said Act, would prevail. On a conjoint reading of Sections 16 and 21 of the said Act, it appears that wherever amendments have been specified in the said Act to the CPC, the same shall prevail. In other respects, the CPC is to be followed by the Commercial Division and the Commercial Court. If there is any conflict with the provisions of the said Act with any provisions contained in any other law for the time being in force, the provisions of the said Act would have overriding effect."

10. There can be no dispute on the proposition stated by the learned counsel for the plaintiff that the provisions of the Commercial Courts Act 2015 would prevail in case there is conflict in the provisions of the said Act vis-a-vis the CPC or Delhi High Court (Original Side) Rules.

11. The question is: Is there any conflict in the facts and circumstances of the case? Order 8 Rule 1 CPC requires that the written statement shall be filed within the statutory period. The CPC, in my opinion, does not deal with the situation where the Registry puts an objection on the manner in which the said written statement has been filed.

12. The facts of the case are that the written statement was filed by the defendant on 15.04.2019 with an advance copy on the plaintiff. The objection taken by the Registry did not go to the root of the matter. The only

objection taken was that the document/reply/written statement be filed separately. Meaning thereby, that the defendant had filed the aforenoted three pleadings/replies/etc. with a common index. The Registry asked that instead of a common index, they may be filed separately with separate index. The defendant re-filed the same as directed by the Registry on 01.05.2019.

13. IA No. 11193/2019 states that the delay took place in re-filing the said written statement on account of the fact that the clerk of the counsel was out of town on account of a wedding in the family and hence, there was delay in re-filing the matter.

14. In my opinion, Chapter IV Rule 3 of the Delhi High Court (Original Side) Rules deals with an entirely different situation unlike under Order 8 Rule 1 CPC. Once the written statement is filed and there are some minor defects as in the present case, it cannot be said that there is no filing of the written statement within the stipulated period stated under Order 8 Rule1 CPC. There is a material difference between filing a pleading and re-filing the same after removal of defects. (Reference S.R.Kulkarni vs. Birla VXL Ltd. 1998 RLR 519)

15. As far as IA No. 11193/2019 is concerned, sufficient cause is stated for the delay in re-filing of the written statement. The said application is liable to the allowed. Ordered accordingly.

16. As far as the merits of IA No. 6721/2019 are concerned, the defendant has stated the following reasons for the delay in filing the written statement:-

"4. That however it was later found that the plaintiffs had not supply the complete set of documents In particular from pages 294 to 474. For which e-mall dated 25.12.2018 was sent on behalf of defendant for the said documents, which were also

replied vide e-mail dated 26.12.2018 and later the said documents from page 294 to 474 was In fact receive from the plaintiffs counsel.

5. That the officials of the defendant were Involved In conducting the Traditional/Indian Style Wrestling at Pune on 29 &30 December, 2018, which was so completed keeping In view order dated 21.12.2018 passed by this Hon'ble Court In I.A. No.17615/2018 In CS(COMM.) NO.1303 OF 2018.

6. That thereafter the plaint/I.As and all the documents were studied by the defendant, which has taken longer time. The counsel f or the WFI had also been engaged In various professional works Including outstation matters. The said visits of the counsel of the defendant had further delayed in preparing and finalizing the Written Statement.

7. That for sake of preparing the written statement even older documents were required apart from several other documents. Thus in collecting ail the documents too time has been spent.

8. That thereafter there has been many conferences for the finalization of the draft of the written statement, which was almost ready in the last week of March, 2019. And ultimately after completing/finalizing the draft of W.S. could in fact got ready to be filed now in April, 2019.

9. That in view of the circumstances the delay has been circumstantial and unintentional and the same therefore could not be filed within 30 days, but, it has taken longer period and the 120 days period gets expire on 18.04.2019, within which period the defendant can file the W.S.

10. That the reasons for delay in filing the documents are bonafide and has been taken in order to answer the plaint of the plaintiff effectively and therefore the delay of 83 days may be condoned in the interest of justice as the defendant is not prejudiced even otherwise as interim order dated 21.12.2018 has

been passed in their favour and further got extended on 27.03.2019 by this Hon'ble Court, hence the delay may be condoned and the W.S. may be accepted and be taken on record for decision of the case on its merits."

17. In my opinion, the above grounds would constitute sufficient cause to condone the delay in filing the written statement beyond 30 days.

18. The delay in filing and re-filing the written statement is condoned subject to costs of Rs. 20,000/- to be paid within two weeks from today.

19. Impugned order is set aside. The appeal stands disposed of. CS(COMM) 1303/2018 The plaintiff may file replication within four weeks from today. Pleadings be completed in all the pending applications within four weeks.

Interim orders to continue.

JAYANT NATH, J AUGUST 20, 2019/rb Corrected and signed on 28.08.2019