Delhi High Court
Sunil Kumar vs Larsen And Toubro Ltd. on 13 February, 2019
$~O-10 & O-11
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Date of Decision: 13th February, 2019
+ CS(COMM) 538/2017 & O.A. 106/2018 & I.A. 11521/2018
10 SUNIL KUMAR ..... Plaintiff
Through: Mr.Vikas Kumar, Mr.Aliya
Durafshan and Mr.Manish Paliwal,
Advocates
versus
LARSEN AND TOUBRO LTD. ..... Defendant
Through: Mr.A.C. Mishra, Advocate
+ CS(COMM) 540/2017 & O.A. 105/2018 & I.A. 11519/2018
11 UJJVAL CONSTRUCTIONS ..... Plaintiff
Through: Mr.Vikas Kumar, Mr.Aliya
Durafshan and Mr.Manish Paliwal,
Advocates
versus
LARSEN AND TOUBRO LTD. ..... Defendant
Through: Mr.A.C. Mishra, Advocate
J U D G E M E N T (ORAL)
I.A. 11519/2018 & I.A. 11521/2018
1. The delay in filing the appeals is condoned. Both applications are
disposed of.
O.A. 106/2018 & O.A. 105/2018
2. The defendant has challenged the order dated 26th July, 2018, whereby
the learned Joint Registrar has dismissed the defendant's applications for
condonation of delay in filing the written statements and has directed the
written statements to be taken off the record.
3. The defendant was served on 07th September, 2017 in
CS(COMM)538/2017 and 08th September, 2017 in CS(COMM) 540/2017.
The defendant filed the written statements in both these cases on 120th day of
service of summons i.e. 05th January, 2018. However, the written statements
were returned under objections. In the mean time, suit was listed on 18 th
January, 2018 and 31st January, 2018 before the learned Joint Registrar.
Vide order dated 31st January, 2018, the learned Joint Registrar directed the
defendant to place the written statements on record within one week failing
which cost of Rs. 10,000/- was imposed on the defendant. On 12th February,
2018, the learned Joint Registrar granted one more opportunity to the
defendant to take steps for placing the written statements on record and for
payment of cost. The defendant removed the objections and the written
statements were placed on record on 24th February, 2018. The defendant also
paid the cost of Rs.10,000/- to the plaintiff on 26th February, 2018.
4. The defendant filed I.A. 4386/2018 and I.A. 4383/2018 for
condonation of delay in filing the written statements. Vide order dated
26th July, 2018, the learned Joint Registrar dismissed both the
I.As.4386/2018 and 4383/2018 on the ground that the written statements
were filed beyond 120 days from the date of service of summons i.e. 24th
February, 2018 and, therefore, the delay in filing the written statements
cannot be condoned.
5. Learned counsel for the plaintiff urged at the time of the hearing that
the written statements were filed by the defendant on 120th day of service of
summons i.e. 05th January, 2018 and were re-filed after removing the
objections on 24th February, 2018. It is submitted that there is delay of about
50 days from the outer limit of 120 days which cannot be condoned.
Reliance is placed on OKU Tech Private Limited v. Sangeet Agarwal,
MANU/DE/2036/2016 and Gulf DTH FZ LLC v. Dish Tv India Limited,
2006 SCC Online Del. 5005.
6. Learned counsel for the defendant urged at the time of the hearing that
the written statements were filed on 120th day of service of summons. With
respect to the delay in re-filing, it is submitted that delay has already been
condoned by the learned Joint Registrar vide order dated 31st January, 2018
subject to cost of Rs.10,000/- and again on 12th February, 2018. It is
submitted that in view of the delay having been condoned, the application
for condonation of delay was not required to be filed. Without prejudice, it is
submitted that the delay in re-filing has been sufficiently explained in the
application for condonation of delay. It is further submitted that the
judgments relied upon by the plaintiff relate to the case in which the written
statement was filed beyond 120 days. It is further submitted that cost of
Rs.10,000/- imposed by the Joint Registrar on 31 st January, 2018 was paid
on 26th February, 2018.
7. There is merit in the contentions urged by learned counsel for the
defendant. The written statements were filed by defendant on 120th day of
service of summons i.e. 05th January, 2018. Vide orders dated 18th January,
2018 and 31st January, 2018, the learned Joint Registrar permitted the
defendant to place the written statements on record subject to cost of
Rs.10,000/- which admittedly has been paid by the defendant to the plaintiff
on 26th February, 2018. In that view of the matter, the written statements
filed by the defendant should have been taken on record. In any view of the
matter, the delay in filing and re-filing the written statements be condoned.
The judgments filed by the plaintiff relate to the cases where the written
statements were filed beyond 120 days and, therefore, not applicable to the
present case.
8. The appeals are allowed, impugned orders are set aside and the
written statements of the defendant are taken on record. The remarks made
by the learned Joint Registrar on the defendant's conduct are unwarranted
and are hereby set aside.
CS(COMM) 538/2017 & CS(COMM) 540/2017
9. Let the replication be filed by the plaintiff within two weeks. The
affidavit of admission/denial of the documents be filed by both the parties
also within two weeks.
10. List for marking of the documents before the Joint Registrar on
05th March, 2019.
11. List for framing of issues before the Court on 11th March, 2019.
J.R. MIDHA, J.
FEBRUARY 13, 2019
ds
