Delhi High Court
Sh. Gautam Gambhir vs M/S Jai Ambay Traders & Ors on 6 August, 2020
IN THE HIGH COURT OF DELHI AT NEW DELHI
Judgment delivered on: August 06, 2020
+ CS(OS) 149/2018 & IAs. 2905/2019 and 2906/2019
SH. GAUTAM GAMBHIR ..... Plaintiff
Through: Mr.Paritosh Budhiraja, Mr. Fanish
Jain, Ms. Surabhi Maheshwari,
Mr.Akash Kumar Singh, Mr.Anshula
Gupta, Advocates
versus
M/S JAI AMBAY TRADERS & ORS ..... Defendants
Through: Mr. Balwant Singh. Advocate for
D3&D4.
Mr.Nishant Awana and Mr.Jalaj
Pandey, Advocates for D2&D6.
AND
+ CS(OS) 182/2019 & IAs. 4760/2019, 4761/2019, 4762/2019,
9547/2019, 9710/2019, 9764/2019 and OA. 122/2019
SH. RAM SARUP LUGANI & ANR. ..... Plaintiffs
Through: Mr.Tanmaya Mehta, Mr.Aditya Garg
and Mr.Raghav Wadhwa, Advocates.
versus
NIRMAL LUGANI & ORS. ..... Defendants
Through: Mr. Sudhir Nandrajog, Sr. Advocate
with Mr.Gurpreet Singh, Mr.Achal
Gupta and Ms.Neha Aggarwal,
Advocates
CS(OS) 149/2018 and connected matter Page 1 of 66
CORAM:
HON'BLE MR. JUSTICE V. KAMESWAR RAO
JUDGMENT
V. KAMESWAR RAO, J
I.A. 2906/2019 in CS(OS) 149/2018 & OA 22/2019 in CS(OS)
182/2019
1. By this order, I shall decide an application being I.A.
2906/2018 in CS(OS) 149/2018 and Chamber Appeal being OA
122/2019 in CS(OS) 182/2019. I.A. 2906/2019 has been filed by
defendant Nos. 2, 3, 4 and 6 in the said suit, whereby defendant
Nos. 2, 3 and 6 have sought condonation of 131 days delay and
defendant No.4 has sought condonation of 15 days delay in filing
the written statement. Similarly, the Chamber Appeal being OA
122/2019 has been filed by the plaintiffs challenging the order of
the learned Joint Registrar dated September 30, 2019 whereby the
learned Joint Registrar has closed the right of the plaintiffs to file
replication to the written statement filed by the defendants in the
said suit.
FACTS of I.A. 2906/2019 in CS(OS) 149/2018:-
2. The suit has been filed by the plaintiff against the
defendants for recovery of Rs.2,98,70,000/-. Summons were
issued to the defendants on April 11, 2018, returnable on July 11,
2018. It appears that the plaintiff has filed an application for
placing on record amended memo of parties and the said
application was listed before the learned Joint Registrar on May
17, 2018 when the learned Joint Registrar directed issuance of
summons to all the six defendants and made it returnable on July
11, 2018, the date already fixed. On July 11, 2018 one Mr.
Mayank Bamniyal, Advocate appeared for the defendants and
sought time to file vakalatnama. The learned Joint Registrar has
also directed filing of the written statement within the statutory
period with a direction to supply advance copy to the plaintiff and
adjourned the matter to September 07, 2019.
3. On September 07, 2019 Mr.Bamniyal stated that he
appears for defendant Nos. 1, 2, 3 and 6 only and does not
represent defendant Nos.4 and 5. He sought more time for filing
the written statement as per law. Accordingly, fresh notices were
issued to defendant Nos.4 and 5, returnable on October 30, 2018.
On October 30, 2018, no written statement was filed by the
defendant Nos.1, 2, 3 and 6. The learned Joint Registrar noting
the fact that the prescribed period for filing the written statement
has already expired, had observed that law shall take its own
course. In the meantime, Mr. Rushab Aggarwal, Advocate
accepted summons for defendant Nos. 4 and 5, who were still
unserved and stated that he shall take appropriate steps for filing
the written statement. The matter was posted for December 19,
2018. On December 19, 2018, the learned Joint Registrar has
noted the fact that defendant Nos.1 to 4 and 6 have filed an
application for condonation of delay. Be that as it may, fresh
summons were issued to the defendant No.5. The matter was
posted on February 14, 2019. On February 14, 2019, the learned
Joint Registrar has again reiterated that the written statement on
behalf of defendant Nos.1 to 4 and 6 has not been filed within the
statutory period. The defendant No.5 was also proceeded ex-
parte.
4. The present application has been filed with the following
averments: -
"3. That the counsel for the defendant Nos. 2, 3, 4 and 6
were engaged in the captioned matter on 14.12.2018 and
filed their written statement on 18.12.2018.
6. At the time of filing the written statement there is a
delay of 131 days for the defendant Nos. 2,3 and 6 as they
were severed the summons on 10.07.2018. Further, at the
time of filing the written statement on behalf of the
defendant No.4, there is an inordinate delay of 15 days in
filing the written statement as summons were served upon
her on 04.11.2018 Further, a proxy counsel had
appeared on behalf of the defendants on 30.10.2018 and
sought time to file the written statement.
7. That initially once the suit was filed on behalf of the
plaintiff, the defendant Nos.2,3,4 and 6 were in the
process of coordinating with each other and were trying
to get in touch with the defendant No.6. The defendant
No.6 being a senior citizen was not keeping well and
therefore it took time to engage a counsel and the their
written statement. The same lead to an inordinate delay
of 131 days in filing the written statement on behalf of the
defendant Nos. 2, 3 and 6 and a delay of 15 days in filing
the written statement on behalf of the defendant No.4
8. That due to the bonafide reasons stated herein above,
the written statement could not be refilled within
prescribed limit of 30 days. It is submitted that the delay
stated above was unintentional and was not deliberate
and therefore, the same may be condoned in the interest
of justice."
5. A reply has been filed by the plaintiff to the application
filed by the defendant Nos. 2, 3, 4 and 6, wherein it has been
stated that admittedly the written statement has been filed beyond
the period of 120 days from the date of service of the summons
and as such, the same cannot be permitted to be taken on record.
A reference has been made to Rule 2(i) and Rule 4 of Chapter VII
of the Delhi High Court (Original Side) Rules, 2018 (Rules of
2018, in short) in support of this contention. In substance, it is
the plea that the Rules of 2018 shall prevail over the Code and the
Rules clearly stipulate that the written statement needs to be filed
within 120 days and not thereafter. In other words, the said
period being mandatory, having not filed the written statement
within the said period, the right of the defendants to file written
statement was rightly treated to have been extinguished.
Facts of OA 122/2019 in CS(OS) 182/2019: -
6. The suit has been filed by the plaintiffs, wherein the
written statement has been filed by the defendants on or before
July 03, 2019. This is because when the matter was listed before
the Court on July 23, 2019, the learned counsel for the plaintiffs
has stated that he has received a copy of the written statement.
Time of four weeks was granted to file replication along with the
affidavit of admission / denial of documents and the matter was
posted on September 30, 2019. On September 30, 2019, the
learned Joint Registrar, noting the fact that replication has not
been filed within the time granted and no ground is made out for
further extension, had closed the right of the plaintiffs to file
replication. It is this order, which is under challenge in this
Chamber Appeal. The relevant averments made in the appeal
challenging the order of the learned Joint Registrar are in paras 3,
4, 5, 6, 7 and 8 which are reproduced as under: -
"3. That the suit was listed for hearing before the Hon'ble
Court on 23.07.2019, when the defendants entered
appearance. The Hon'ble Court was pleased to grant four
weeks time to the plaintiffs for filing their replication to
the written statement and their affidavit of admission
denial of documents. The case was, accordingly, ordered
to be listed before the Ld. Joint Registrar for completion
of pleadings on 30.09.2019.
4. That the defendants have filed a written statement
running into more than 125 pages. The said written
statement contains 60 preliminary objections. The
defendants have also filed equally lengthy replies to
applications preferred by the plaintiffs along with their
suit. Further, the defendants have also filed documents
that run into more than 500 pages. The defendants have
raised false and baseless contentions. It is pertinent that
each of the contentions & averments are responded by
plaintiffs, for an effective adjudication. A detailed and
careful scrutiny had to be carried out in order to aptly
reply to the written statement. The plaintiffs and the
counsel had to revisit all the documents in order to
answer the averments made by the defendants. Also,
additional research of correspondence had to be carried
out for effective reply. The said exercise has taken the
considerable time and it is for this reason that the
replication as well as the affidavit of admission denial of
documents could not be filed within the time granted by
the Hon'ble Court.
5. That the defendants have collectively filed various /
different documents for different purposes under a single
head / entry in index. The documents are unrelated to
each other and should have been bifurcated and filed
separately under different heads of index. Combining the
documents under a single head has created confusion and
has made the exercise of preparing an affidavit of
admission / denial of documents an extremely complex
task.
6. That it is also pertinent to state herein that the Plaintiff
No. 1 is of 93 years of age. Though he is mentally fit and
mobile, however, there is a constraint on his free
movement. Also, he cannot sit for long conferences, due
to medical reasons. Plaintiff no. 2 is a practicing
Chartered Accountant. Plaintiff no. 2 was occupied with
his professional duties towards his clients as from July
2019, he has been preparing balance sheets of his clients
and filing returns. Since time for preparation of the
replication coincided with the time of filing of annual
returns, the plaintiff no. 2 could not make himself easily
available to discuss the issues and assist in drafting of the
replication. There have been to and fro movement of
pages of draft replication between plaintiff no. 2 and his
counsel.
7. That on 30.09.2019, the matter came up for hearing
before the Ld. Joint Registrar. The counsel representing
the plaintiffs sought 15 days time to file the replication
and other replies, along with the affidavit of admission
denial of documents. The Ld. Joint Registrar, however,
without appreciating the peculiar facts of the present case
and the difficulties faced by the plaintiffs in responding to
the Written Statement, closed the right the plaintiffs to file
a replication.
8. That the replication and the affidavit of admission
denial of documents could not be filed within the time
stipulated by the Hon'ble Court because of the reasons
stated hereinabove. It is due to the aforesaid facts and
circumstances that the plaintiffs are filing their
replication and the affidavit of admission denial of
documents now, albeit with a delay of 60 days. The
replication is an important part of pleading, as it
controverts and refutes, each allegation of defendants
and also demonstrates the malafides on defendants'
part."
SUBMISSIONS:-
I.A. 2906/2019
7. It is the submissions of the learned counsels appearing for
the applicants / defendant Nos. 2, 3, 4 and 6 that in the filing of
the written statement on behalf of defendant Nos. 2, 3 and 6 there
is a delay of 131 days as they were served summons on July 10,
2018 and that there is a delay of 15 days in filing the written
statement on behalf of defendant no.4 as summons were served
only on November 4, 2018.
8. It is their submission that in terms Rules of 2018 the
limitation period of 120 days prescribed for filing of the written
statement in an ordinary suit is not mandatory, but the court on
showing a sufficient cause can condone the delay. They stated,
sufficient cause has been shown by the applicants / defendants in
the application for this court to exercise the discretion in their
favour and condone the delay and take the written statements on
record.
9. On the other hand, Mr. Paritosh Budhiraja, learned
counsel appearing for the non-applicant / plaintiff would submit
that delay beyond 120 days in filing the written statement cannot
be condoned by this Court in view of Rule 4 of Chapter-VII of
the Rules of 2018 which clearly provides that in case, written
statement is not filed within 30 days, the period for filing the
same can be extended for a further period not exceeding 90 days,
but not thereafter. Therefore, prescribing the maximum period
of 120 days for filing the written statement is with a purpose. He
stated that there is difference in the Rules of 2018 and the
provision under Order VIII Rule 1 of Code of Civil Procedure,
1908 ('CPC', in short) inasmuch as the order VIII Rule 1 CPC
does not use the phrase 'but not thereafter' as mentioned in the
Rules of 2018. According to him, the question which arises for
consideration is whether, for the purposes of condonation of
delay in filing the written statement, the CPC shall prevail over
the Rules of 2018. In this regard, he submitted that Section 7 of
the Delhi High Court Act, 1966 ('Delhi High Court Act', in
short) empowers this court to make its own rules with respect to
practice and procedure for exercise of its ordinary original civil
jurisdiction. Further, Section 129 of the CPC also empowers the
High Courts to make rules to regulate procedures of its original
civil jurisdiction as it deems fit. He submitted that Section 129
of the CPC even recognizes and upholds the validity of the
already existing rules which were in force at the time of
commencement of the Code. That apart, it was his submission
that the Supreme Court in the case of Iridium India Telecom Ltd.
v. Motorola Inc., AIR 2005 SC 514, has considered various
provisions of law and numerous judgments and traced the history
of the charter establishing High Courts in the country and after
exhaustive consideration of various aspects has inter alia held
that the rules framed by the High Courts would prevail over the
provisions of the Code, even if the said Rules are inconsistent
with the Code. Similarly, he also referred to Printpak
Machinery Limited v. M/s. Jay Kaay Paper Congesters, AIR
1979 Delhi 217, wherein the Full Bench of this Court has held
that non-obstante clause in Section 129 of the CPC has left
untouched the Original Side Rules whenever framed and thus
categorically held in the event of inconsistency, Original Side
Rules shall prevail over the CPC. He also referred to the
judgment of this court in Akash Gupta v. Frankfinn Institute of
Air Hostesses, 127 2006 DLT 128, wherein the Division Bench
of this court relying upon the aforesaid judgments came to a
conclusion that the Delhi High Court (Original Side) Rules, 1967
('Old Rules', in short) shall prevail over the CPC. That apart, it
was his submission that the provisions of Rules of 2018 are clear
that the said rules have been made by this Court with respect to
practice and procedure relating to its ordinary civil jurisdiction
and are applicable to all kinds of proceedings on the original side
of this Court irrespective of whether it is an ordinary suit or a
commercial suit. It does not make any distinction between the
commercial suits or ordinary suits. So, according to him, the
only conclusion that can be drawn is that the Rules of 2018 shall
prevail over the Code in the event of inconsistency between the
two, irrespective of the nature of proceedings on the original side
of this Court. Therefore, for the purpose of filing of the written
statement, it is Rule 4 of Chapter VII of the Rules of 2018, which
would be applicable and not Order VIII Rule 1 of CPC.
Therefore, it was his submission, plea of the defendants that the
provision under Order VIII Rule 1 CPC would govern the filing
of the written statement is untenable.
10. In so far as the plea of the learned counsel for the
applicants / defendants as to whether the delay beyond the period
of 120 days can be condoned, it was his submission that although
Order VIII Rule 1 CPC provides that time for filing the written
statement can be extended beyond the period of 30 days by a
further period not later than 90 days from the date of service of
summons, there is no presence of the phrase 'but not thereafter'.
Whereas, Rule 4 of Chapter VII of Rules of 2018 specifically
uses the phrase 'but not thereafter'. That apart, he stated that
Rule 4 of Chapter VII of the Rules of 2018 in so far as it relates
to the permissible time limit for filing the written statement the
same is analogous to proviso to Section 34 (3) of the Arbitration
and Conciliation Act, 1996 ('Act of 1996', in short) inasmuch as
the said proviso also specifically creates a bar in filing an
application under Section 34 of the Act of 1996 beyond the
period prescribed in the said provision. In this regard, he has
relied upon the judgment of the Supreme Court in the case of
Union of India v. Popular Construction, 2001 (8) SCC 470.
That apart, he has also relied upon the judgment of the Supreme
Court in P. Radha Bai and Ors. v. P. Ashok Kumar and Anr.
2018 (5) Arb.LR 2004. He also relied upon a recent
pronouncement of this Court in the case of Odeon Builders Pvt.
Ltd. v. NBCC (India) Ltd. in CS(Comm). 1261/2018 decided on
October 31, 2019, wherein this Court by considering various
judgments came to a conclusion that period prescribed in Rule 5
of Chapter VII of the Rules of 2018 for filing the replication is
mandatory in nature. That apart, he submitted that the phrase
'but not thereafter' is couched in negative terms and is
mandatory in nature and thus the time for filing the written
statement cannot be extended beyond the period prescribed under
Rule 4 of Chapter VII of the Rules of 2018.
11. In so far Rules 14 and 16 of Chapter I of the Rules of
2018 are concerned, it was his submission that same cannot be
read in a manner to render the words 'but not thereafter' in Rule
4 of Chapter VII otiose. In this regard, he has relied upon the
judgments of the Supreme Court in Padam Sen and Ors. v. State
of Uttar Pradesh, AIR 1961 SC 218; Manohar Lal Chopra v.
Rai Bahaadur Rao Raja Seth Hiralal, AIR 1962 SC 57; Vinod
Seth v. Devinder Bajaj and Anr. 2010 (8) SCC 1.
12. On merits, it was his submission that applicants /
defendants have miserably failed to disclose any cause
whatsoever much less sufficient cause of exceptional and
unavoidable reasons which prevented them from filing the
written statement within the stipulated period of 30 days and 90
days thereafter. He also submitted that the written statement
alleged to have been filed on December 18, 2018 cannot be
termed as a written statement, but a bunch of papers. As would
be evident from the objections raised by the Registry, the
purported written statement which was filed on December 18,
2018 was unsigned, without verification clause, without
supporting affidavits, without affidavit of admission and denial of
documents and even the vakalatnama filed along with it was also
unsigned. He stated that the written statement which has been
filed along with the application also bears the date December 18,
2018, however on verification clause the month of February,
2019 is inscribed though without any date. That apart all the
affidavits filed along with the written statement are dated
February 13, 2019. Therefore, the purported written statement
filed on December 18, 2018 cannot be termed as written
statement which merely is a bunch of papers. Thereafter, the
signed written statement with verification clause, supporting
affidavits and affidavits of admission / denial was filed only on
February 22, 2019. So, the filing of the written statement can at
best be said to have been done on February 22, 2019 and not
before that. Even if the written statement is treated to be filed on
December 18, 2018, then also the same is admittedly filed
beyond the period of 120 days from the date of service of
summons. He stated, if the date of filing of the written statement
is taken on February 22, 2019, then the delay in filing the written
statement is 196 days and not 131 days beyond 30 days.
13. In so far as date of service of defendant No. 4 is
concerned, the defendants are manipulatively stating that she was
served summons only on November 4, 2018. In this regard, he
stated that on July 11, 2018, one Advocate namely Mr. Mayank
Bamniyal appeared for all the defendants and made a statement
that the defendants were served on July 10, 2018. The said
Advocate sought time to file the vakalatnama and the written
statement. However on the next date of hearing, on September 7,
2018, the very same Advocate appeared and made a statement
that he does not represent defendant Nos. 4 and 5 and the
submission was made only with regard to defendant Nos. 1, 2, 3
and 6. Since there was no service report on record qua defendant
Nos. 4 and 5, the learned Joint Registrar directed the plaintiff to
take fresh steps for service on defendant Nos. 4 and 5. The
plaintiff accordingly, took fresh process for service on defendant
Nos. 4 and 5. He stated that on October 30, 2018, one Mr.
Rushab Aggarwal, Advocate appeared and accepted summons on
behalf of defendant Nos. 4 and 5 and sought time to file the
written statement on behalf of the defendants. However, on the
next date of hearing, on December 19, 2018, third Advocate
namely Mr. Sayam Khetarpal appeared and made a statement that
he appears for defendant nos. 1 to 3 and 6 and does not represent
defendant no.4. In this manner, the defendants have been from
the very beginning, making mockery of the process of the court
and trying to frustrate the cause of the plaintiff. He also stated
that although the order dated October 30, 2018 mentions that
defendants nos. 4 and 5 are still unserved, defendant No.4 has
been duly served with fresh summons on September 25, 2018 at
her Karkroula address for the second time having already served
once on July 10, 2018. He stated that the address of defendant
no.4 as mentioned in memo of parties and the one mentioned by
defendant no.4 in the affidavit filed by her is the same. The
affidavit of service in this regard filed by the plaintiff is already
on record. He stated that defendant Nos. 3 and 4 are husband and
wife and are staying together at the same address. In these
circumstances, the present application is liable to be dismissed.
O.A. 122/2019
14. At the outset Mr. Tanmaya Mehta, learned counsel
appearing for appellant/plaintiff stated that a Coordinate Bench of
this court while dealing with an ordinary, non-commercial, civil
suit bearing no. CS(OS) 245/2019, vide order dated December 3,
2019 has permitted the written statement filed on the 149th day
after service of summons to be taken on record subject to
payment of cost. He stated that if a written statement can be
taken on record beyond 120 days in an ordinary suit, same logic
would apply to a replication. According to Mr. Mehta, the
judgment of this Court in Odeon Builders (supra) is not
applicable to an ordinary suit, wherein this court has concluded
that in commercial suits the time period of 45 days cannot be
extended by the Registrar or the Court. The said conclusion is
based on the following reasoning:
a. Judgment of the Supreme Court in Popular
Construction Company (supra), which had
interpreted the provisions of Section 34 (3) of the
Act of 1996 and by relying on the words 'but not
thereafter', concluded that the period of 120 days
prescribed as the limitation for filing a Section 34
petition, is mandatory and cannot be extended. The
Court had reasoned that if the period of 120 days is
not interpreted as mandatory, the words 'but not
thereafter' would be rendered otiose.
b. This court held that inherent powers cannot be used
to override express provisions and hence Rules 14
and 16 of Chapter 1 of the Rules of 2018 would not
come to aid in condoning delay beyond 45 days.
15. It was his submission that the judgment in Odeon
Builders (supra) is distinguishable and further, certain arguments
and submissions were not made before this Court which may
persuade the Court to take a different view. These submissions
are as follows:
a. The very same logic as applied by the Supreme
Court in Popular Construction (supra) comes to
the aid of the plaintiff.
i. In Popular Construction (supra), the
Supreme Court reasoned that the words 'but
not thereafter' would be rendered otiose if
the 120 days period is not considered as
mandatory. The court also consequently
reasoned that Section 29(2) of the Limitation
Act, 1963 ('Limitation Act', in short) would
apply to exclude the applicability of Section
5 of the Limitation Act, since the provisions
Section 34 (3) indicate an express
intendment to exclude Section 5.
ii. Similarly, in the present case, if the
provisions of Rule 5 of Chapter-VII of the
Rules of 2018 are considered as mandatory
and if the 45 days period is considered as not
condonable by the Court, it would render the
language of Rule 5, i.e., 'In case no
replication is filed within the extended time
also, the Registrar shall forthwith place the
matter for appropriate orders before this
Court' which follows the words 'but not
thereafter', as otiose. If the intent was to
close the right to file replication
automatically after 45 days, the rule would
have said so, and there was no question of
'appropriate orders' being passed by the
Court. In fact, the very mention of
'appropriate orders' in the rules indicate a
measure of discretion. This argument was
not made in Odeon Builders (supra).
b. In Odeon Builders (supra), Rule 14 of Chapter 1
of the Rules of 2018 was argued as a source of
inherent power and this argument was rejected by
the Court on the basis that inherent powers cannot
be used to override provisions. However, what was
not argued in Odeon Builders (supra), is that Rule
14 is different from Rule 16. Rule 16 is similarly
worded to Section 151 CPC and refers to 'saving of
inherent powers of Court'. However, Rule 14 is
not saving of inherent powers but rather is an
express conferment of power of relaxation, and
expressly confers powers on the Court to dispense
with compliance of the Rules. Once the power to
relax is there, it is plenary, and applies across the
Board. This logic is also clear, given that
procedure is ultimately not substantive law, but
only a handmaid of justice, and hence the logic is
that the discretion of the Court to override
procedure in the interests of justice will not and
cannot be taken away by the other provisions of the
Rules of 2018. In fact, Rule 14 which is express
power of relaxation would also be rendered otiose,
if the 45 days period is accepted as mandatory
accepting of no relaxation, and as is settled law in
Popular Construction (supra) the provisions
cannot be read so as to render one or more
provisions as otiose.
c. If the intendment of the Rule making authority was
to close the right to file replication after 45 days,
then Rule 5 of Chapter-VII would have said so
expressly, like it is said in the case of written
statement under Rule 4 of Chapter-VII. Further,
Rule 5 would have ended at 'but not thereafter'
like Section 34 (3), and there would have been no
additional sentence requiring the Registrar to place
the matter before the Court. It may be noted that
this argument was also not made in Odeon
Builders (supra).
i. Unlike Rule 4, which in case of expiry of
120 days states that the Registrar may close
the right to file written statement, Rule 5
does not contain such language, rather upon
expiry of 45 days states that the Registrar to
put up the matter before the Court for further
orders. This distinction between the language
of Rules 4 and 5, and also the addition of the
sentence 'In case no replication is filed
within the extended time also, the Registrar
shall forthwith place the matter for
appropriate orders before the Court' after
the words 'but not thereafter' is indicative of
a different intendment for replications
compared to the 120 days period for written
statements and also a different intendment
compared to Section 34 (3) of the Act of
1996.
ii. That the Section 34 (3) of the Act of 1996
ends with 'but not thereafter' and there is no
equivalent provision under Section 34 (3)
similar to Rule 5 of Chapter-VII (with its
language relating to putting up of the matter
before the Court for appropriate orders) or
similar to Rule 14 of Chapter-I, which is an
express conferment of power to relax the
provisions of the Rules.
d. In view of the above, given the language of Rule 5
of Chapter-VII read with Rule 16 of Chapter-I of
the Rules of 2018 it cannot be said that Section
29(2) of the Limitation Act applies. In other words,
Section 5 of the Limitation Act cannot be said to be
excluded, and therefore an application for
condonation of delay in filing the replication would
be governed by Section 5 of the Limitation Act,
and the power therein would also be available to
the Court.
e. Mr. Mehta stated that both Popular Construction
(Supra) and Odeon Builders (supra) apply to a
situation where the parent statutes itself prescribed
absolute limitation on power of condonation i.e. the
Act of 1996 and Commercial Courts, Commercial
Division and Commercial Appellate division of
High Courts Act, 2015 ('Commercial Courts Act',
for short). However, in the present case, the Court
is concerned with an ordinary suit which is
governed by the CPC, which does not contain any
provision to limit the power of the Court to
condone the delays. In fact, in Kailash v. Nankhu,
2005 (4) SCC 480, the Supreme Court has
interpreted the 90 days period in Order VIII Rule 1
of the CPC to be directory and not mandatory.
f. In this light, when the Rules of 2018 are
interpreted, the interpretation of the Rules being
directory or mandatory must differ depending on
the parent statute, which is being interpreted.
g. He submitted that ordinary and commercial suits
are two different classes of suits and therefore
different rules of interpretations have to apply to
them. A distinction between a commercial and an
ordinary suit exists and ought to be appreciated,
and even the legislature has recognized them as
different classes, with different rules of procedure
being applied to them. According to him, the CPC
applies differently to commercial Suits, and
differently to ordinary Suits (since certain
amendments to the CPC apply only to commercial
suits, and not to ordinary suits, and to the latter the
ordinary provisions of the CPC apply).
h. Thus, even assuming, without conceding, that the
45 days period is construed as mandatory for
commercial suits (subject to the argument below
that even for commercial suits this would not be
mandatory in view of the provisions of Rule 4 and
5 of Chapter VII, and Rule 14, Chapter 1, and since
the Commercial Courts Act itself does not contain
any express limitation for replications), however,
for the purpose of ordinary suits, the interpretation
must be guided differently, since the parent statute,
i.e., the CPC does not contain any such mandatory
limitation.
i. The issue is not one of conflict between the CPC
and the Original Side Rules, but the issue is how
should Rule 5 of Chapter-VII read with Rules 14
and 16 of Chapter-I of the Rules of 2018 be
interpreted as applying to an ordinary suit,
harmoniously with the CPC, which does not
contain any outer limit for filing of replication.
j. A question of conflict would arise only if there are
irreconcilable provisions, however, according to
him, in the present matter the Rules of 2018 and
the CPC can be read harmoniously and in tandem
with each other, given the express wording of Rule
5 of Chapter-VII (which differs with Rule 4) and
the Conferment of power under Chapter-I, Rule 14
of the Rules of 2018.
k. Since, qua replication, the parent statute of
ordinary suits, i.e., the code of Civil Procedure (or
for that matter even the parent statute Commercial
Courts Act) does not contain any provision, the
power to grant relaxation under Rule 14, Chapter-1
read with the power to pass appropriate orders
under Rule 5, Chapter-VII would mean that the
power of the court to condone delay is not taken
away. Thus, Rule 5 of Chapter VII of the Rules of
2018 also ought to be read as directory and not
mandatory in a non-commercial suit.
l. It is important to consider that the suits in each of
orders / judgments viz. Odeon Builders (supra);
Cosco India Ltd. v. Parasmukh Nirman, 2019
SCC OnLine Del 9633; Atlanta Limited v. NHIDC
2019 SCC OnLine Del 11276 or SCG Contracts
India Pvt. Ltd. Vs. K.S. Chamankar
Infrastructure Pvt. Ltd. 2019 SCC OnLine SC 226
were filed under the provisions of Commercial
Courts Act and therefore the stringent provisions
relating to time lines specified under the
Commercial Courts Act applied thereto.
m. Mr. Mehta stated that the plaintiff is not suggesting
that the power of condonation beyond 45 days be
exercised in a routine manner. The Court may lay
down appropriate parameters for the same.
However, it is entirely a different scenario to urge
that a constitutional court whose judges are
appointed under Article 215 of the Constitution of
India (albeit exercising ordinary original
jurisdiction while sitting on the Original Side of the
HC) would not have any power to condone delay
beyond 45 days if circumstances and the interests
of justice so require. Such whittling down of
powers of high constitutional authorities such as
High Court Judges, the same cannot and should not
be easily read.
n. The present suit is an ordinary civil suit, which is
non-commercial in nature, and having being filed
under Section 92 of the CPC, has public interest at
its core. The present suit is still at the stage of grant
of leave under Section 92 of CPC. This means that
though interim orders have been passed and notice
has been issued on the application under Section 92
(as is the power of the Court as held by the
Supreme court in R.M. Narayana Chettiar v. N.
Lakshmanan Chettiar, 1991 1 SCC 48), however,
formal leave to institute the suit has not yet been
granted. Hence even though summons were issued
in the suit, the need for completion of pleadings has
not yet arisen, as that would happen only after
Section 92 application is decided. Hence, the filing
of the written statement is itself premature and so
also therefore, the closing of the right of the
plaintiff to file replication is premature. The order
closing the right to file replication is liable to be set
aside on this ground alone.
16. On the other hand, Mr. Sudhir Nandrajog, learned Sr.
Counsel appearing for the defendants in the Chamber Appeal
submitted that the written statement was filed by the defendants
on July 15, 2019 which was served on the plaintiffs through post
on July 17, 2019.
17. Further vide order dated July 23, 2019, this court granted
four weeks' time to the plaintiffs to file replication. However, in
complete contravention of the order and the Rules of 2018, the
appellants/plaintiffs did not file their replication or their affidavits
of admission / denial within the stipulated time period.
18. Since no replication or affidavits of admission / denial
had been filed by the appellants/plaintiffs, the learned Joint
Registrar on September 30, 2019 closed the right of the plaintiffs
to file replication and recorded that the consequence of the non-
filing of an affidavit of admission / denial shall follow.
Pertinently, the learned Joint Registrar was fully conscious of the
provisions of Chapter VII Rule 5 of the Rules of 2018, recorded
the same in his order dated September 30, 2019 and correctly
placed the matter before this court for framing of issues and / or
further direction on November 1, 2019, which was in full
compliance with the letter and spirit of the Rules of 2018.
19. Mr. Nandrajog submitted that in the suit, the replication
and the affidavit (s) of admission / denial have been filed only on
October 15, 2019. As such the replication has been filed
(i) after 84 days, i.e., from the date when the plaintiffs
were permitted to file a replication in terms of the
order of this Court dated July 23, 2019. Thus,
there is a delay of 39 days beyond the maximum 45
days' time period provided for under the Rules of
2018.
(ii) after 90 days, i.e., from the date when the plaintiffs
received a copy of the written statement, i.e., dated
July 17, 2019 - as is the time period contemplated
in Chapter VII Rule 5 of the Rules of 2018. Thus,
there is a delay of 45 days beyond the maximum 45
days time period provided for under the Rules of
2018.
20. He stated that the plaintiffs have not filed an application
or otherwise sought permission to file their replication within
the extendable 15 days period beyond the normal 30 days time
period. As a result, learned Joint Registrar did not have the
occasion to impose costs on the plaintiff (as contemplated in
Chapter VII Rule 5) nor to provide them with any extra time to
file the replication or affidavit of admission / denial when the
matter was listed before him on September 30, 2019. In fact,
the replication and affidavit of admission / denial were not even
on record before the learned Joint Registrar on September 30,
2019 and were only filed fifteen days thereafter on October 15,
2019.
21. In so far as the issue that the instant suit is an ordinary
suit and not a commercial suit, so different rules of
interpretations have to apply is concerned, it was the submission
of Mr. Nandrajog that the provisions of the Rules of 2018 as
framed under the Delhi High Court Act will apply in their full
force irrespective of the fact that instant suit does not fall within
the definition of a commercial dispute in terms of Section 2(c)
of the Commercial Courts Act. Moreover, it is no longer res
integra that the provisions of special law will prevail over those
of a general law. It is also no longer res integra that rules made
under a statute must be treated for all purposes of construction
or obligation exactly as they were in the Act and are to be of the
same effect as if contained in Act. He relied upon the Judgment
of the Supreme Court in the case of State of U.P. and Ors. v.
Babu Ram Upadhyay, AIR 1961 SC 751. He also relied upon
the Judgment in the case of Chief Forest Conservator (Wildlife)
& Ors. v. Nisar Khan, 2003 (4) SCC 595 wherein the Supreme
Court has held that when rules are validly framed, they should
be treated as a part of the Act.
22. As such it is clear that the Rules of 2018, being validly
framed must be read as part of the Delhi High Court Act.
Further, Delhi High Court Act, being a special law will prevail
even over the Commercial Courts Act. The Commercial Courts
Act merely inserts amendments to the CPC. The CPC being
general rule, will not prevail over the Delhi High Court Act and
rules framed thereunder - which constitute a special law.
23. In so far as the issue of inherent powers of the Court
should not be exercised in a manner contrary to expressly
provide procedure is concerned, it was submitted by Mr.
Nandrajog that the provisions of Chapter VII Rule 5, 6, 7 of the
Rules of 2018 are mandatory and cannot be dispensed with
either under the guise of the inherent power of the High Court
(under Chapter I, Rule 16 of the Rules of 2018) or its power to
dispense with requirement to comply with the Rules and give
directions in matters of practice and procedure under Chapter I,
Rule 14 of the Rules of 2018. In support of his submission, he
relied upon the Judgments of the Supreme Court in the case of
Padam Sen (supra) and Manohar Lal Chopra (supra). So, he
stated that reliance cannot be placed on Chapter I Rule 16 of the
Rules of 2018 in order to permit the plaintiffs to bring on record
its replication and affidavit of admission / denial beyond the
mandatory time period within which they are to be filed and this
court cannot resort to the provisions of Chapter I Rule 16 in
order to permit the plaintiffs from doing an act which is
otherwise expressly and mandatorily barred by Chapter VII
Rule 5, 6 and 7 of the Rules of 2018. That apart, a co-ordinate
Bench of this court in a recent Judgment in COSCO (India) Ltd.
(supra) has held, in the context of the time period for filing a
Written Statement under the Rules of 2018, a mandatory
requirement under the Rules cannot be dispensed with under the
guise of the Courts power to give directions in matters of
practice and procedure. For these reasons, the power vested in
this court under Chapter I, Rule 14 and Rule 16 of the Rules of
2018 cannot be used in a manner contrary to the expressly
mandatory provisions of Chapter VII Rules 5, 6 & 7. As such
the requirement to file a replication and affidavit of admission /
denial within a maximum time period of 45 days, and not
thereafter, contained in Chapter VII being an express and
mandatory procedure stipulated under the Rules of 2018 cannot
be dispensed with by invoking the power of this Court under
Chapter I, Rules 14 and 16. Additionally in Popular
Construction (supra), the Supreme Court has examined the
effect of the use of the words 'but not thereafter' in relation to
the time limit for filing objections against the Arbitral Award.
24. On the issue of mandatory requirement under the Rules to
file replication within 45 days cannot be dispensed with, it was
the submission of Mr. Nandrajog, that catena of Judgments of
the Supreme Court and this court have now settled the position
that a mandatory requirement under the CPC or the High Court
Rules cannot be dispensed with. Further, he stated that it is now
a settled rule of statutory interpretation that any interpretation
which renders otiose any part of a statute should be avoided.
The Supreme Court while examining the amendments to the
CPC after the coming into force of the Commercial Courts Act
has held in SCG Contracts India Pvt. Ltd. (Supra) that no
extension of time can be granted for filing of the written
statement beyond 120 days. Relying on the above judgment of
the Supreme Court, a Coordinate Bench of this court has
recently in Unilin Beheer B.V. v. Balaji Action Buildwell: 250
(2019) DLT 478 has held as under:
"26. It is a settled rule of statutory interpretation that
the interpretation which renders otiose any part of a
statute, should be avoided.
...........
31. I thus hold, that in the event of the Written 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 on the basis of which admission
the court shall be entitled to proceed under Order VIII
Rule 10 of the CPC."
He also relied upon the judgments of this court in the case of
Odeon Builders Pvt. Ltd. (supra) and Atlanta Limited (supra).
25. From the review of the above judgments passed by the
Supreme Court and this court, it is clear that the express and
mandatory procedure laid out in Chapter VII, Rules 5, 6 & 7 of
the Rules of 2018 cannot be rendered otiose by invoking the
inherent powers of this Court or the power of this court to give
directions for practice and procedure. This Court has time and
again held that a replication must be filed within the time period
laid down in Chapter VII Rule 5 and must be accompanied by
an affidavit of admission / denial. In case, it is not filed within
30 days time limit only 15 days extendable period may be
granted to the plaintiff within which to comply with the express
and mandatory provisions of Chapter VII Rules 5, 6 & 7.
Further, the Supreme Court has already held that use of the
word 'but not thereafter' in a provision that limits a time period
for filing is express and clear and cannot be circumvented.
Moreover, the Supreme Court has held that use of the words
'but not thereafter' even ousts the operation of Section 29(2) of
the Limitation Act. He submitted that the situation in the instant
matter is analogous as Chapter VII Rule 5 clearly states that:
"The replication, if any, shall be filed within 30 days of
receipt of the written statement. If the court is satisfied
that the plaintiff was prevented by sufficient cause for
exceptional and unavoidable reasons in filing the
replication within 30 days, it may extend the time for
filing the same by a further period not exceeding 15
days but not thereafter. For such extension, the
plaintiff shall be burdened with costs, as deemed
appropriate" (emphasis supplied).
26. On the judgment of Odeon Builders (Supra) dealing
with power of Joint Registrar and not Court, it was the
submission of Mr. Nandrajog that the plaintiffs in their
replication has incorrectly submitted that the ld. Joint
Registrar would only have the power to place the matter
before the court for appropriate orders in case of replication
is not filed. The learned Joint Registrar is only required to
place the matter before the Court in the event that a plaintiff
files its replication and affidavit of admission / denial within
the 15 extra days available (beyond 30 days) along with an
application seeking condonation of delay. This application
must show that the plaintiff was prevented by sufficient cause
for exceptional and unavoidable reasons from filing the
replication within the normal 30 days period. In the present
case, the plaintiff has not only not filed the replication within
the normal 30 days period but has also not filed the
replication within the extra 15 days available in terms of
Chapter VII, Rule 5 of the Rules of 2018. As such, this court
would be correct in relying on the decision in Odeon
Builders (supra) and Atlanta Limited (supra) to hold that
neither the Ld. Joint Registrar nor this Court have the power
to permit filing of a replication and affidavit of admission /
denial beyond a period of 45 days provided for in Chapter
VII, Rule 5 of the Rules of 2018.
27. He further submitted that the learned Joint Registrar
has been conferred the power to both allow an application
seeking leave to file a replication as well as to close the right
to file a replication. The right to close the right to file a
replication flows from the power conferred on the learned
Joint Registrar in terms of Chapter II Rule 60 of the Rules of
2018. The said rule grants the Ld. Joint Registrar the right to
decide applications for enlargement or abridgement of time
including applications to foreclose the right to file written
statements. It is submitted that a replication is nothing but an
'additional written statement' as referred to in Order VIII
Rule 9 of the CPC.
28. Further, the power of a learned Joint Registrar to
entertain applications seeking leave to file a replication flows
from Chapter II Rule 20 of the Rules. The said rule confers
on the learned Joint Registrar the power to decide
applications for leave to file a further or additional written
statement. He submitted that the language of this Rule, read
together with Order VIII Rule 9 CPC clearly refers to the
filing of replication and, the replication is nothing more than
an additional written statement.
29. On the issue of CPC does not prescribe any limitation
and Order VIII Rule 9 is limitation for 30 days, it is the
submission of Mr. Nandrajog that Order VIII Rule 9 CPC
does not prescribe any time limit within which additional
written statement or replication has to be filed. He stated that
this court in M/s. Anant Construction (P) Ltd. v. Shri Ram
Niwas, ILR (1995) II Delhi 76, has held that a replication is
permissible only in three situations; (i) when required by law;
(ii) when a counter claim is raised or set off is pleaded by the
defendants; (iii) when the court directs or permits a
replication being filed.
30. He also stated that the plaintiffs cannot be allowed to
rely on the provisions of Section 29(2) of the Limitation Act.
He stated that it is apparent that it will only apply for the
purposes of condoning the delay in filing of the following: -
(i) Suits;
(ii) Appeals; and
(iii) Applications.
A replication or an affidavit of admission / denial do
not fall within the three categories to which the relaxation
provided in Section 29 (2) of the Limitation Act will apply.
31. In so far as the issue of High Court exercising
Ordinary Original Civil Jurisdiction is a Civil Court in terms
of the CPC is concerned, it was the submission of Mr.
Nandrajog that this Court in the instant matter is exercising
its Ordinarily Original Civil Jurisdiction as a Civil Court
understood in terms of the CPC. As such, in the instant
matter this Court will not be able to exercise its writ
jurisdiction in terms of Article 226 or Article 227 of the
Constitution of India. It was his submission that this court is
bound by the provisions of Chapter VII, Rules 5, 6 & 7 of
Rules of 2018 and does not have the power to permit any
extra time (beyond the period extendable up to of 45 days) to
the plaintiffs to file its replication and affidavit of admission /
denial and seeks the dismissal of the chamber appeal.
32. Having heard the learned counsel for the parties, in
both the cases, the issue, which arises for consideration is
whether the delay in filing the written statement over and
above 120 days by defendant Nos. 2, 3 and 6 and delay in
filing the written statement by defendant No.4 over and
above 30 days from the date of service of summons needs to
be condoned and the written statement is required to be taken
on record.
33. A similar issue arises in Chamber Appeal bearing O.A.
No. 122/2019 that whether the learned Joint Registrar had
rightly closed the right of the plaintiff in CS(OS) 182/2019 in
filing the replication being beyond a period of 45 days, as
prescribed in the Rules of 2018.
34. To understand the aforesaid issues, it is necessary to
refer to the provisions of Order 8 Rule 1 CPC, Rules 14, 16
and 17 of Chapter I of the Rules of 2018 and Rules 4, 5 and 6
of Chapter VII of the Rules of 2018.
"
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 fil the
written statement within the said period of thirty
days, he shall be allowed to file the same on such
other day, as may be specified by the Court, for
reasons to be recorded in writing, but which shall
not be later than ninety days from the date of
service of summons]
XXX XXX XXX
DELHI HIGH COURT (ORIGINAL SIDE)
RULES, 2018
CHAPTER-I
GENERAL
xxx xxx
14. Court's power to dispense with compliance
with the Rules.--The Court may, for sufficient
cause shown, excuse parties from compliance with
any requirement of these Rules, and may give such
directions in matters of practice and procedure, as
it may consider just and expedient.
xxx xxx
16. Inherent power of the Court not affected. --
Nothing in these Rules shall be deemed to limit or
otherwise affect the inherent powers of the Court to
make such orders as may be necessary for the ends
of justice or to prevent abuse of the process of
Court.
17. Miscellaneous.--(1) Except to the extent
otherwise provided in these Rules, applicable
provisions of the Code, the Commercial Courts Act
and the Information Technology Act, 2000 shall
apply to all proceedings on Original Side.
(2) Reference to any gender shall, unless the
context so otherwise requires, be meant and be
construed as a reference to all genders.
(3) Nomenclature(s)/ Category(s) of various
proceedings to be instituted on the Original Side of
the Court shall be as per extant notifications/
directions.
xxx xxx
CHAPTER-VII
APPEARANCE BY DEFENDANT, WRITTEN
STATEMENT, SET OFF AND COUNTER-
CLAIM
xxx xxx
4. Extension of time for filing written statement.--
If the Court is satisfied that the defendant was
prevented by sufficient cause for exceptional and
unavoidable reasons in filing the written statement
within 30 days, it may extend the time for filing the
same by a further period not exceeding 90 days,
but not thereafter. For such extension of time, the
party in delay shall be burdened with costs as
deemed appropriate. The written statement shall
not be taken on record unless such costs have been
paid/ deposited. In case the defendant fails to file
the affidavit of admission/ denial of documents filed
by the plaintiff, the documents filed by the plaintiff
shall be deemed to be admitted. In case, no written
statement is filed within the extended time also, the
Registrar may pass orders for closing the right to
file the written statement.
5. Replication.-The replication, if any, shall be
filed within 30 days of receipt of the written
statement. If the Court is satisfied that the plaintiff
was prevented by sufficient cause for exceptional
and unavoidable reasons in filing the replication
within 30 days, it may extend the time for filing the
same by a further period not exceeding 15 days but
not thereafter. For such extension, the plaintiff
shall be burdened with costs, as deemed
appropriate. The replication shall not be taken on
record, unless such costs have been paid/
deposited. In case no replication is filed within the
extended time also, the Registrar shall forthwith
place the matter for appropriate orders before the
Court. An advance copy of the replication together
with legible copies of all documents in possession
and power of plaintiff, that it seeks to file along
with the replication, shall be served on the
defendant and the replication together with the said
documents shall not be accepted unless it contains
an endorsement of service signed by the defendant/
his Advocate.
6. Affidavit of admission/ denial of documents
with replication.- Alongwith the replication, the
plaintiff shall also file an affidavit of admission/
denial of documents filed by the defendant, without
which the replication shall not be taken on
record."
35. I may, at this stage, mention that I have recently in
Odeon Builders Pvt. Ltd. (supra) has decided that the
learned Joint Registrar / Court cannot extended the time
beyond 45 days for filing the replication. The reasoning
given by me was to the following effect:-
"9. Having heard and considered the rival submissions
made by the learned counsel for the parties, the issue
which falls for consideration in this case is, whether
the learned Joint Registrar was right in closing the
right of the appellant / plaintiff to file replication and
affidavit of admission / denial of documents. To answer
the issue, it is necessary to reproduce here the relevant
Rule 5 of Chapter VII of Delhi High Court (Original
Side Rules), 2018, which reads as under:
5. Replication. - The replication, if any, shall be
filed within 30 days of receipt of the written
statement. If the Court is satisfied that the
plaintiff was prevented by sufficient cause for
exceptional and unavoidable reasons in filing
the replication within 30 days, it may extend the
time for filing the same by a further period not
exceeding 15 days but not thereafter. For such
extension, the plaintiff shall be burdened with
costs, as deemed appropriate. The replication
shall not be taken on record, unless such costs
have been paid / deposited. In case no
replication is filed within the extended time also,
the Registrar shall forthwith place the matter for
appropriate orders before the court. An advance
copy of the replication together with legible
copies of all documents in possession and power
of plaintiff, that it seeks to file along with the
replication, shall be served on the defendant and
the replication together with the said documents
shall not be accepted unless it contains an
endorsement of service signed by the defendant /
his Advocate.
10. Mr. Tandon, learned counsel for the plaintiff
had relied upon Rules 14 and 16 of Chapter-I of Delhi
High Court (Original Side Rules), 2018 which I have
already re-produced above. Perusal of Rule 5 clearly
reveals that the period within which replication could
be filed is 30 days and 15 days as extended time. The
words "not thereafter" under Rule 5 are of
some significance. A similar provision of this nature in
the context of Arbitration and Conciliation Act, 1996
had come up for consideration before the Supreme
Court in the case of Union of India v. Popular
Construction Company (2001) 8 SCC 470 wherein the
court was considering the issue whether the provisions
of Section 5 of the Limitation Act shall apply to a
petition under Section 34 of the Arbitration
and Conciliation Act, 1996, more specifically in view
of Section 34, sub-section (3) has held as under:-
"12. As far as the language of Section 34 of the
1996 Act is concerned, the crucial words are
'but not thereafter' used in the proviso to sub-
section (3). In our opinion, this phrase would
amount to an express exclusion within the
meaning of Section 29(2) of the Limitation Act,
and would therefore bar the application
of Section 5 of that Act. Parliament did not need
to go further. To hold that the Court could
entertain an application to set aside the Award
beyond the extended period under the proviso,
would render the phrase 'but not thereafter'
wholly otiose. No principle of interpretation
would justify such a result." (emphasis supplied)
11. On similar lines, by relying upon its opinion in
Popular Construction Co. (supra), the Supreme Court
has in the case of P. Radha Bai and Ors. v. P. Ashok
Kumar and Ors. 2018 (5) ARBLR 204 (SC), wherein
the issue which fell for consideration was
whether Section 17 of the Limitation Act, is applicable
while determining the limitation period under Section
34 (3) of the Arbitration and Conciliation Act, the
Court has in Para 37 held as under:
"37. This Court in Popular Construction Case
(supra) at page 474 followed the same approach
when it relied on the phrase "but not thereafter"
to hold that Section 5 of the Limitation Act was
expressly excluded.
"As far as the language of Section 34 of the
1996 Act is concerned, the crucial words are
'but not thereafter' used in the proviso to sub-
section (3). In our opinion, this phrase would
amount to an express exclusion within the
meaning of Section 29(2) of the Limitation Act,
and would therefore bar the application
of Section 5 of that Act. Parliament did not need
to go further. To hold that the Court could
entertain an application to set aside the Award
beyond the extended period under the proviso,
would render the phrase 'but not thereafter'
wholly otiose. No principle of interpretation
would justify such a result."
12. So it must be held by including the words "not
thereafter" in Rule 5 of Chapter II of Rules, the rule
making authority intended to exclude grant of further
time for filing the replication and affidavit of
admission / denial of documents after the expiry of
period of 45 days. The plea of Mr. Tandon was that in
view of Rule 14 and 16 of Chapter I, the court has
discretion to grant further time over and above what
has been prescribed in Rule 5 of Chapter VII of the
Rules, I am afraid such a plea is not acceptable.
Firstly, Rule 14 and 16 cannot be read in any manner
to make the words "not thereafter" in Rule 5 of
Chapter VII otiose. In any case, it is a settled position
of law in terms of the Judgment of the Supreme Court
in Padam Sen and Ors. v. State of Uttar Pradesh 1961
ALT 84 (SC) that the inherent power of the court is in
addition to the power specifically conferred on the
court by the Code (Rules in this case). It was held by
the Supreme Court that the inherent powers are
complementary to those powers and the court held that
it must be held that the Court is free to exercise them
for the purpose mentioned in section 151 of the Code
when the exercise of those powers is not in any way in
conflict with what has been expressly provided in the
code or against the intentions of the Legislature. In
other words, it is well-recognized that inherent power
is not to be exercised in a manner which will be
contrary to or different from the procedure expressly
provided in the code."
36. Having said that, the learned counsel for the
applicants/defendants in I.A. 2905/2019 in CS(OS) 149/2018
and Mr. Tanmaya Mehta appearing for the appellant in OA
122/2019 in CS(OS) 182/2019 would justify the said
judgment by stating that in Odeon Builders Pvt. Ltd. (supra),
this Court was concerned with a commercial suit as defined
in the Commercial Courts Act, which is different from an
ordinary suit. In other words, according to them, the ratio in
Odeon Builders Pvt. Ltd. (supra) shall have no applicability
to an ordinary suit.
37. The additional submissions of Mr. Mehta specifically
are the following:-
(i) The Supreme Court in Popular Construction (supra)
also held that Section 29(2) of the Limitation Act would
apply to exclude the applicability of Section 5 of the
Limitation Act, since the provisions of Section 34(3) indicate
an express intendment to exclude Section 5.
(ii) The mention of the words 'in case no replication is
filed within the extended time also, the Registrar shall place
the matter for appropriate orders before this Court', in
Rule 5, indicates a measure of discretion.
(iii) Rule 14 of Chapter I of the Rules of 2018 is not saving
inherent powers of relaxation and expressly confers power on
the Court to dispense with compliance of the Rules of 2018.
In other words, once power to relax is there, it is plenary and
applies across the board.
(iv) If the intendment of the rule making authority was to
close the right to file replication after 45 days, then Rule 5 of
Chaptr-VII would have said so expressly like it says in case
of written statement under Rule 4. Further, Rule 5 would
have ended at 'but not thereafter' like Section 34(3) and
there would not have been any additional sentence requiring
'...Registrar to place the matter before the Court'.
(v) In view of language of Rule 5 of Chapter-VII read with
Rule 16 of Chapter-I of the Rules of 2018, it cannot be said
that Section 29(2) of the Limitation Act applies. In other
words, Section 5 of the Limitation Act cannot be said to be
excluded and therefore an application for condonation of
delay in filing replication would be governed by Section 5 of
the Limitation Act.
(vi) The suit is governed by CPC, which does not contain
any provision to limit the power of the Court to condone the
delay.
(vii) The ordinary and commercial suits are two different
classes of suits and therefore different rules of interpretation
have to apply for ordinary suits. The Rules of 2018 have to
be interpreted harmoniously with CPC.
(viii) The power of condonation of delay must not be
exercised in a routine manner but guidelines to be laid down
in that regard.
38. As state above, it is the plea of Mr. Mehta that CPC
applies differently to commercial suits and differently to
ordinary suits. In other words, certain amendments to the
CPC applies because of the Commercial Courts Act and the
ordinary suit is governed by the provisions of the Rules of
2018.
39. As I have already noted the broad submissions made
by the learned counsel for the parties, at the outset, I may
state that learned counsel for the plaintiff in CS(OS)
149/2018 submitted in view of the judgment in Iridium India
Telecom Ltd. (supra) that the Rules of 2018 framed by this
Court shall override the provisions of the CPC. In fact Mr.
Mehta has conceded to the said position that the Rules of
2018 shall prevail over the provisions of the CPC.
40. In Iridium India Telecom Ltd. (supra), the Supreme
Court has traced the history of the charter establishing High
Courts in the country and after exhaustive consideration of
various aspects has, inter-alia, held that the rules framed by
High Courts would prevail over the provisions of the CPC,
even if the said rules are inconsistent with the Code. The
contention that the Letters Patent and other rules framed by
High Courts to regulate its own procedure are in nature of
subordinate or delegated legislation and, therefore, cannot
override the legislative mandate and substantive provisions of
CPC was rejected. The Supreme Court in this regard referred
to Section 129 of the CPC and the object and purpose of the
enactment of the said Code and distinction as drawn between
proceedings before civil courts and proceedings on the
original side of the chartered High Courts. It was further held
subsequent amendments and even the last amendment of the
Code in the year 2002 does not affect this principle and the
rules will override and are binding even if they are contrary
or inconsistent with the Code.
41. Even the Full Bench of this Court, similarly in Akash
Gupta (supra), on which reliance has been placed, had stated
as under:-
"9. The Delhi High Court in the case of Printpak
Machinery v. Jay Kay Paper Congeners reported in
AIR, 1979 Delhi 271 has also held that the non-
obstinate clause in Section 129 of the Code left
untouched the original side rules of High Court
whenever framed and the said rules would prevail over
the Code.
10. It is not disputed that Rules 3 and 4 of the Rules
have been made under Section 7 of the Act. The said
rules have been framed under Sections 122 and 129 of
the Code and under Rule 19 of Chapter-I of the Rules.
Original Side proceedings of the High Court are to be
conducted as per the Rules and the Code is applicable
when the rules are silent. Rule 19 of Chapter I of the
Rules reads as under:-
19.Miscellaneous - Except to the extent
otherwise provided in these rules, the provisions
of the Civil Procedure Code shall apply to all
proceedings on original side."
42. I must also state here that wherever the Rules are
silent, the provisions of CPC shall hold the field.
43. Having said that, in these cases, this Court is
concerned with the filing of the written statement /
replication. I may state here, this Court had framed the
Original Side Rules in the year 1967 (Old Rules). Rule 3 of
Chapter-VI of the Old Rules refers to the extension of time
for filing the written statement. The same is reproduced as
under:-
" 3. Extension of time for filing written statement -
Where the defendant fails to file written statement
within a period of 30 days as stated in Rule 2(ii) he
shall be allowed to file the same on such other day as
may be specified, by the Court on an application made
in writing setting forth sufficient ground for such
extension and supported, if so required, by an affidavit
but such day shall not be later than 90 days from the
service of summons."
44. I may also state that there was no provision in the Old
Rules, which refer to the filing of the replication. It is also
noted that this Court and the Supreme Court has interpreted
Order VIII Rule 1 of CPC and Rule 3 of Chapter-VI of Old
Rules to mean the period of 90 days for filing the written
statement is not mandatory and for good, valid and sufficient
cause being shown, the time for filing written statement
beyond 90 days can be extended. The position under the Old
Rules has undergone a change with the framing of Rules of
2018 where a specific provision (Chapter-VII, Rule 5) with
regard to filing of the replication has been introduced and a
time period extendable up to 120 days for filing of written
statement (Chapter-VII, Rule 4).
45. In the abovesaid background, let me deal with the issue
whether the delay in filing the written statement by defendant
Nos. 2, 3 and 6 beyond 120 days and delay in filing the same
by defendant No. 4 over 30 days needs to be condoned. In
this regard, the submission of the learned counsel is that the
suit being an ordinary suit, the rigors of the filing of the
written statement in commercial suit must not be made
applicable and on sufficient cause being shown, the delay in
filing the written statement should be condoned.
46. Before I answer this issue, it is necessary to refer to the
judgment of the Supreme Court, as referred to in the case of
Kailash v. Nankhu (supra). In the said judgment, the
Supreme Court held that the prescription of 90 days period in
Order 8 Rule 1 CPC to be directory and not mandatory.
47. Similarly, in Desh Raj (supra), the Supreme Court by
referring to its judgment in Atcom Technologies Ltd. vs. Y.
A. Chunawala & Co., (2018) 6 SCC 639, held that Order
VIII Rule 1 CPC continues to be directory and does not do
away with inherent discretion of the Courts to condone
certain delays. It is to be noted that in the aforesaid
judgment of Desh Raj (supra), the Supreme Court was
concerned with the issue of closing the right of the defendant
in filing written statement under Order VIII Rule 1 instituted
in trail court subordinate to the High Court and the Supreme
Court was not concerned with the effect of the Rules of 2018
framed by this Court. Hence, the judgment of Desh Raj
(supra) referred to by the learned counsel for the defendant
shall not be applicable in the facts of this case. Similarly, in
Atcom (supra) also the Supreme Court was concerned with
the provisions of CPC.
48. Now coming to the issue of delay, Rule 4 of Chapter
VII of the Rules of 2018, which is reproduced above, is very
clear and on reading, the following position emerges:-
(i) the extension of the time beyond 30 days shall be for
further period as 'not exceeding' 90 days and 'but not
thereafter';
(ii) In case the written statement is not filed within the
extended time also, the Registrar may pass orders for closing
the right to file the written statement.
49. From the above, it is seen that the maximum period
permissible for filing written statement is 120 days and not
beyond that. In other words, the Rule fixes an outer limit for
filing the written statement. The words 'but not thereafter'
have relevance and they do indicate that the period cannot be
extended further. Further, the Rule also mandates, if the
written statement is not filed then the Registrar may pass
orders closing the right. This part of the Rule only gives
discretion to the Registrar to give a declaration of the fact
that the right of the defendant to file written statement has
been closed/forfeited. In fact, this part of the Rule depicts the
consequence of not filing the written statement within the
extended time. In this regard, I may reproduce paras 13 and
14 of the judgment in SCG Contracts India Pvt. Ltd. (supra),
wherein the Supreme Court inter-alia held that where in any
provision (Order VIII Rule 1), the consequences are clearly
laid down then the same could be held as mandatory. In fact,
the Supreme Court held, the consequence like, non-extension
of any further time and the fact that the Court shall not allow
a written statement to be taken on record, as some examples
in that regard.
"13. Several High Court judgments on the amended
Order VIII Rule 1 have now held that given the
consequence of non-filing of written statement, the
amended provisions of the CPC will have to be held to
be mandatory. [See Oku Tech Private Limited vs.
Sangeet Agarwal & Ors. by a learned Single Judge of
the Delhi High Court dated 11.08.2016 in CS (OS) No.
3390/2015 as followed by several other judgments
including a judgment of the Delhi High Court in Maja
Cosmetics vs. Oasis Commercial Pvt. Ltd. 2018 SCC
Online Del 6698.
14. We are of the view that the view taken by the
Delhi High Court in these judgments is correct in view
of the fact that the consequence of forfeiting a right to
file the written statement; non-extension of any further
time; and the fact that the Court shall not allow the
written statement to be taken on record all points to
the fact that the earlier law on Order VIII Rule 1 on
the filing of written statement under Order VIII Rule 1
has now been set at naught."
50. In Odeon Builders Pvt. Ltd. (surpa), this Court had
interpreted the words 'but not thereafter' as found mentioned
in Rule 5 of Chapter VII of the Rules of 2018 in para 12 in
the following manner:-
"12. So it must be held by including the words "not
thereafter" in Rule 5 of Chapter VII of Rules, the rule
making authority intended to exclude grant of further
time for filing the replication and affidavit of
admission / denial of documents after the expiry of
period of 45 days. The plea of Mr. Tandon was that in
view of Rule 14 and 16 of Chapter I, the court has
discretion to grant further time over and above what
has been prescribed in Rule 5 of Chapter VII of the
Rules, I am afraid such a plea is not acceptable.
Firstly, Rule 14 and 16 cannot be read in any manner
to make the words "not thereafter" in Rule 5 of
Chapter VII otiose. In any case, it is a settled position
of law in terms of the Judgment of the Supreme Court
in Padam Sen and Ors. v. State of Uttar Pradesh 1961
ALT 84 (SC) that the inherent power of the court is in
addition to the power specifically conferred on the
court by the Code (Rules in this case). It was held by
the Supreme Court that the inherent powers are
complementary to those powers and the court held that
it must be held that the Court is free to exercise them
for the purpose mentioned in section 151 of the Code
when the exercise of those powers is not in any way in
conflict with what has been expressly provided in the
code or against the intentions of the Legislature. In
other words, it is well-recognized that inherent power
is not to be exercised in a manner which will be
contrary to or different from the procedure expressly
provided in the code."
51. The Apex Court in a Constitutional Bench decision in
New India Assurance Co. Ltd. v. Hilli Multipurpose Cold
Storage Pvt. Ltd. AIR 2020 1267, while adjudicating as to
whether under Section 13 (2) (a) of the Consumer Protection
Act, 1986 ('CPA', for short), the District Forum has the
power to extend the time for filing the response beyond the
period of 15 days in addition to 30 days, deliberated at length
the mandatory character of the said provision. Section 13(2)
(a) of the CPA reads as under:
"Section 13. Procedure on admission of complaint.-
Xxx xxx xxx
(2)..
(a) refer a copy of such complaint to the opposite
party directing him to give his version of the case
within a period of thirty days or such extended period
not exceeding fifteen days as may be granted by the
District Forum;
.... "
52. It was held by the Court that from a bare reading of
the provision as well as owing to the couching of the
provision in prohibitive or negative language, the intension
of the legislature in its wisdom was to make it mandatory,
without empowering the District Forum with any discretion
to extend the time beyond 45 days in total. Relevant
paragraphs of the Judgment read as under:
"8. A bare reading of Section 13(2)(a) of the Act
makes it clear that the copy of the complaint which is
to be sent to the opposite party, is to be with the
direction to give his version of (or response to) the
case (or complaint) within a period of 30 days. It
further provides that such period of 30 days can be
extended by the District Forum, but not beyond 15
days.
XXXX XXXX XXXX
13. On the contrary, Sub-section (2)(a) of Section 13
of the Consumer Protection Act provides for the
opposite party to give his response 'within a period of
30 days or such extended period not exceeding 15
days as may be granted by the District Forum'. The
intention of the legislature seems to be very clear that
the opposite party would get the time of 30 days, and
in addition another 15 days at the discretion of the
Forum to file its response. No further discretion of
granting time beyond 45 days is intended under the
Act.
XXXX XXXX XXXX
17. The legislature in its wisdom has provided for
filing of complaint or appeals beyond the period
specified under the relevant provisions of the Act and
Regulations, if there is sufficient cause given by the
party, which has to be to the satisfaction of the
concerned authority. No such discretion has been
provided for Under Section 13(2)(a) of the Consumer
Protection Act for filing a response to the complaint
beyond the extended period of 45 days (30 days plus
15 days). Had the legislature not wanted to make
such provision mandatory but only directory, the
provision for further extension of the period for filing
the response beyond 45 days would have been
provided, as has been provided for in the cases of
filing of complaint and appeals. To carve out an
exception in a specific provision of the statute is not
within the jurisdiction of the Courts, and if it is so
done, it would amount to legislating or inserting a
provision into the statute, which is not permissible.
By specifically enacting a provision Under Sub-
section (3) of Section 13, with a specific clarification
that violation of the principles of natural justice shall
not be called in question where the procedure
prescribed Under Sub-sections (1) and (2) of Section
13 of the Consumer Protection Act has been followed
or complied with, the intention of the legislature is
clear that mere denial of further extension of time for
filing the response (by the opposite party) would not
amount to denial or violation of the principles of
natural justice. This provision of Section 13(3)
reinforces the time limit specified in Section 13(2)(a)
of the Act.
18. This Court in the case of Lachmi Narain v. Union
of India MANU/SC/0012/1975 : (1976) 2 SCC 953
has held that "if the provision is couched in
prohibitive or negative language, it can rarely be
directory, the use of peremptory language in a
negative form is per se indicative of the interest that
the provision is to be mandatory". Further, hardship
cannot be a ground for changing the mandatory
nature of the statute, as has been held by this Court
in Bhikraj Jaipurai v. Union of India
MANU/SC/0045/1961 : AIR 1962 SC 113 : (1962) 2
SCR 880 and Fairgrowth Investments Ltd. v.
Custodian MANU/SC/0898/2004 : (2004) 11 SCC
472. Hardship cannot thus be a ground to interpret
the provision so as to enlarge the time, where the
statute provides for a specific time, which, in our
opinion, has to be complied in letter and spirit.
This Court, in the case of Rohitash Kumar v. Om
Prakash Sharma MANU/SC/0936/2012 : (2013) 11
SCC 451 has, in paragraph 23, held as under:
23. There may be a statutory provision, which
causes great hardship or inconvenience to
either the party concerned, or to an individual,
but the Court has no choice but to enforce it in
full rigor. It is a well settled principle of
interpretation that hardship or inconvenience
caused, cannot be used as a basis to alter the
meaning of the language employed by the
legislature, if such meaning is clear upon a
bare perusal of the statute. If the language is
plain and hence allows only one meaning, the
same has to be given effect to, even if it causes
hardship or possible injustice.
While concluding, it was observed "that the hardship
caused to an individual, cannot be a ground for not
giving effective and grammatical meaning to every
word of the provision, if the language used therein, is
unequivocal.
Further, it has been held by this Court in the case of
Popat Bahiru Govardhane v. Special Land
Acquisition Officer MANU/SC/0851/2013 : (2013) 10
SCC 765 that the law of limitation may harshly affect
a particular party but it has to be applied with all its
vigour when the statute so prescribes and that the
Court has no power to extend the period of limitation
on equitable grounds, even if the statutory provision
may cause hardship or inconvenience to a particular
party.
19. The contention of the learned Counsel for the
Respondent is that by not leaving a discretion with
the District Forum for extending the period of
limitation for filing the response before it by the
opposite party, grave injustice would be caused as
there could be circumstances beyond the control of
the opposite party because of which the opposite
party may not be able to file the response within the
period of 30 days or the extended period of 15 days.
In our view, if the law so provides, the same has to be
strictly complied, so as to achieve the object of the
statute. It is well settled that law prevails over equity,
as equity can only supplement the law, and not
supplant it.
This Court, in the case of Laxminarayan R. Bhattad
v. State of Maharashtra MANU/SC/0287/2003 :
(2003) 5 SCC 413, has observed that "when there is a
conflict between law and equity the former shall
prevail." In P.M. Latha v. State of Kerala
MANU/SC/0190/2003 : (2003) 3 SCC 541, this Court
held that "Equity and law are twin brothers and law
should be applied and interpreted equitably, but
equity cannot override written or settled law." In
Nasiruddin v. Sita Ram Agarwal
MANU/SC/0100/2003 : (2003) 2 SCC 577, this Court
observed that "in a case where the statutory
provision is plain and unambiguous, the court shall
not interpret the same in a different manner, only
because of harsh consequences arising therefrom." In
E. Palanisamy v. Palanisamy MANU/SC/0967/2002 :
(2003) 1 SCC 123, it was held that "Equitable
considerations have no place where the statute
contained express provisions." Further, in India
House v. Kishan N. Lalwani MANU/SC/1182/2002 :
(2003) 9 SCC 393, this Court held that "The period
of limitation statutorily prescribed has to be strictly
adhered to and cannot be relaxed or departed from
by equitable considerations."
It is thus settled law that where the provision of the
Act is clear and unambiguous, it has no scope for any
interpretation on equitable ground.
20. It is true that 'justice hurried is justice buried'.
But in the same breath it is also said that 'justice
delayed is justice denied'. The legislature has chosen
the latter, and for a good reason. It goes with the
objective sought to be achieved by the Consumer
Protection Act, which is to provide speedy justice to
the consumer. It is not that sufficient time to file a
response to the complaint has been denied to the
opposite party. It is just that discretion of extension
of time beyond 15 days (after the 30 days period) has
been curtailed and consequences for the same have
been provided Under Section 13(2)(b)(ii) of the
Consumer Protection Act. It may be that in some
cases the opposite party could face hardship because
of such provision, yet for achieving the object of the
Act, which is speedy and simple redressal of
consumer disputes, hardship which may be caused to
a party has to be ignored."
53. Rule 4 of Chapter VII also contains the phrase 'period
not exceeding', similar to Section 13(2) (a) of the CPA.
Inference can be drawn from New India Assurance (supra)
to hold that, in addition to 'but not thereafter', Rule 4 of
Chapter VII contains the phrase 'period not exceeding'
having a mandatory flannel.
54. The said interpretations hold good for Rule 4 of
Chapter VII of the Rules of 2018, which also contemplates
extension of time for filing written statement beyond 30 days,
for a 'period not exceeding' 90 days 'but not thereafter'.
Moreover, the Rules of 2018 came into effect after the
Commercial Courts Act was notified and it can very well be
presumed that a total of 120 days (30+90) was granted for
filing the written statement in the Rules of 2018, drawing
spirit from the upper limit amongst the time periods provided
in Order VIII Rule 1 and its proviso (applicable to
commercial suits), to make it applicable to all suits filed in
the Original Side of this Court.
55. Having deliberated on the position of law, it is now
relevant to compute the actual delay in filing the written
statement by defendant No. 2,3,4 and 6 beyond the initial
period of 30 days from date of service of summons. There is
no dispute insofar as date of service of summons on
defendant Nos. 2,3 and 6 are concerned, which was July 10,
2018. The period of 30 days expired in and around August 9,
2018 and the further 90 days mark expired on November 7,
2018. Assuming for a moment the date of filing of the written
statement as stated by the defendants i.e. December 18, 2018,
is taken at its face value, still the said date is beyond a period
of 120 days.
56. Now, there is a dispute between the parties on the
actual date of service of summons on defendant No.4. From a
perusal of the Order of this Court dated September 7, 2018 it
is clear that fresh service was initiated for defendant No.4.
Even though appearance was entered on behalf of defendant
No.4 by an Advocate on October 30, 2018, on the next date
of hearing i.e. on December 19, 2018 another Advocate
entered appearance for defendant No.4, and stated that
written statement along with an application for condonation
of delay was filed on December 18, 2018. The service having
been effected, there was appearance for defendant No.4 on
October 30, 2018 and the 30 days period within which
defendant No.4 had to file the written statement expired on
November 30, 2018 prior to date of filing of written
statement on December 18, 2018, as claimed by the
defendants.
57. Be that as it may, it is pertinent to note the objections
were raised by the Registry, on the said written statement
filed on behalf of defendant 2,3,4 and 6 on December 18,
2018, that the said written statement as well as the
vakalatnama was unsigned and filed without verification
clause, without affidavit of admission and denial of
documents. Thus, the filing done on December 18, 2018 can
be said to be hopelessly inadequate and insufficient
containing defects which are fundamental to the institution of
proceedings rendering it a non-est filing and the date of
initial filing needs to considered as to be date on which
defects have been cured (Ref:- Ashok Kumar Parmar vs.
D.C. Sankhla, 1995 RLR 85; Development Authority v.
Durga Construction Co.: 2013 (139) DRJ 133; Jay
Polychem (India) Ltd. and Ors. vs. S.E. Investment,
MANU/DE/1694/2018).
58. As per the Registry Log, after curing the defects, the
written statement was filed on February 25, 2019 and even
the verification clauses for all the defendants bear the date of
verification as February 13, 2019. Therefore, the filing done
on December 18, 2018 is nothing but a non-est filing.
59. Even if December 18, 2018 is taken as the date of
proper filing of written-statement for defendant Nos.2, 3 and
6, the filing is not within a period of 120 days. Therefore, it
must be held that the defendant Nos. 2, 3, and 6 having not
filed the written statement within 120 days have forfeited
their right to file the same. Insofar as defendant No.4 is
concerned, if December 18, 2018 is taken as a date of proper
filing, the filing is within the 120 days period but beyond the
initial 30 days mark from date of service of summons.
However, date of proper filing being February 25, 2019,
beyond the period of 30 days but within 120 days, and having
shown no proper/sufficient cause or reason for condonation
of delay for the period beyond 30 days in the application,
right of defendant No.4 to file written statement stands
forfeited and the application being I.A. 2906/2019 is
dismissed.
60. Now coming to the Chamber Appeal No. 122/2019 in
CS(OS) 182/2019 wherein replication has not been filed
within time and the right has been forfeited by the Registrar.
The filing of replication is governed by Rule 5 of Chapter VII
of the Rules of 2018.
61. The plea of Mr. Mehta is, if the provision of Rule 5 is
construed as mandatory and if the delay beyond 45 days is
not condonable by the Court it would render the language of
Rule 5 that 'In case no replication is filed within the extended
time also, the Registrar shall forthwith place the matter for
appropriate orders before this Court', which follows the
words "but not thereafter" otiose. In other words, if the
intention was to close the right to file replication
automatically after 45 days, the Rule would have said so and
there was no question of placing the matter before Court for
appropriate orders.
62. I find, in this Rule also, the following is the position:-
(i) The replication shall be filed within 30 days of receipt
of the written statement;
(ii) If the filing of replication is prevented for sufficient
cause for exceptional and non-avoidable reasons, the Court
may extend the time for a period not exceeding 15 days but
not thereafter;
(iii) In case no replication is filed within the extended time,
the Registrar shall place the matter before the Court for
appropriate orders.
63. I have, in Odeon Builders (supra), already taken a
view on Rule 5 of Chapter-VII of the Rules of 2018. No
doubt, that view was with regard to a commercial suit but my
conclusion in para 12 of the said judgment, which I have
already reproduced above would hold good for ordinary suit
as well. It is also a settled law of interpretation as held by the
Supreme Court in the case reported as Raghunath Rai
Bareja and Ors. vs. Punjab National Bank and Ors., (2007)
2 SCC 230, that a statute should be given literal meaning and
the words inserted has a purpose and the Court should not
deviate from what has been expressly provided.
64. Moreover, the Supreme Court in New India Assurance
Limited (supra), as detailed above (in paragraphs 51,52) has
held in affirmative, the mandatory nature of 'period not
exceeding'. Rule 5 of Chapter VII in addition to the
mandatory phrase 'but not thereafter' also contains 'period
not exceeding'.
65. The plea of Mr. Mehta is that the words 'the Registrar
shall forthwith place the matter for appropriate orders before
the Court' after the words 'but not thereafter' is indicative of
a different intendment as compared to 120 days for written
statement and with regard to Section 34(3) of the Act of
1996. This submission of Mr. Mehta is not appealing in view
of interpretation given to the words 'but not thereafter' to
mean that no further time shall be granted for filing
replication. The words 'the matter shall be placed before the
Court for further orders' cannot be construed to mean that
the orders shall be passed for extending the time for filing the
replication. The latter words must be construed to mean
placing the matter before the Court for declaring the right of
the plaintiff to file replication as closed. Otherwise, the
words 'not exceeding 15 days' and 'but not thereafter' in
Rule 5 shall become otiose.
66. It is, however pertinent to note that in New India
Assurance (supra) reference was made by the Supreme
Court to the directory nature of Order VIII Rule 1 read with
Order VIII Rule 10 of CPC, where Order VIII Rule 10 lays
down the consequence of non-filing of written statement
within time provided/allowed under Rule 1 as 'the court shall
pronounce the judgment against him, or make such order in
relation to the suit as it thinks fit', granting a discretion on
the Court either to pronounce judgment or pass appropriate
orders. It was also duly noted by the Court that the same was
mandatory for suits filed under the Commercial Courts Act.
Even though on a first blush it may appear that New India
Assurance (supra) has covered the plea taken by Mr. Mehta
as per Rule 5 of Chapter VII 'the Registrar shall forthwith
place the matter for appropriate orders before the Court'
after the words 'but not thereafter' is indicative of a different
intendment i.e. its directory nature, on a deeper consideration
it is clear that the Rule 5 of Chapter VII of Rules of 2018
contains the phrases 'period not exceeding' and 'but not
thereafter', both of which have been held to be mandatory,
whereas the Order VIII Rule 1 read with Order VIII Rule 10
in the absence of such phrases grants discretion to the Court
to pass such orders, making the entire scheme directory.
67. One of the submissions of Mr. Mehta was that in view
of Chapter-VII, Rule 5 and Chapter-I, Rule 16 of Rules of
2018, Section 5 of the Limitation Act shall be applicable to
seek condonation of delay in filing replication. I am not in
agreement with the submission for the reason I have already
held (in Odeon(supra)) that Rule 5 of Chapter VII of the
Delhi High Court Rules, as mandatory and the period beyond
45 days cannot be condoned on the basis of the Apex Court
judgment in Union of India v. Popular Constructions
(supra) wherein it was held that words 'but not thereafter' in
proviso to Section 34(3) of the Act of 1996 would amount to
an express exclusion within the meaning of Section 29 (2) of
the Limitation Act, barring the application of Section 5 of
that Act.
68. That apart, insofar as Rule 14 and 16 are concerned, I
have already reproduced para 12 of Odeon Builders (supra)
above, wherein I have stated that the inherent power is not to
be exercised in a manner which will be contrary to or
different from the procedure expressly provided in the Code.
69. Further, even the Supreme Court in SCG Contracts
India Pvt. Ltd. (supra) rejected a similar argument by
holding as under: -
"19. Learned counsel for the respondents then
strongly relied upon the inherent powers of the Court
to state that, in any case, a procedural provision such
as contained in the amendment, which may lead to
unjust consequences can always, in the facts of a given
case, be ignored where such unjust consequences
follow, as in the facts of the present case. We are again
of the view that this argument has also no legs to stand
on, given the judgment of this Court in Manohar Lal
Chopra vs. Rai Bahadur Rao Raja Seth Hiralal,
[1962] Suppl 1 SCR 450. In this judgment, the Court
held:
"The suit at Indore which had been instituted
later, could be stayed in view of s.10 of the
Code. The provisions of that section are clear,
definite and mandatory. A Court in which a
subsequent suit has been filed is prohibited from
proceeding with the trial of that suit in certain
specified circumstances. When there is a special
provision in the Code of Civil Procedure for
dealing with the contingencies of two such suits
being instituted, recourse to the inherent
powers under s.151 is not justified..."
70. Further, when I have already on an interpretation of
Rule 4 of Chapter VII of the Rules of 2018 concluded that
filing of written statement within a period of 120 days is
mandatory, it must follow that the period of 45 days in Rule 5
of Chapter-VII is also mandatory in nature, otherwise, it
follows the time limit for filing written statement is
mandatory but not for replication; in fact without any time
limit. Such cannot be the intention of the Rule making
authority. The lessor period for replication is prescribed
knowing well, that the same has to be filed by the plaintiff /
claimant, who has already taken a stand in the plaint and the
purpose of the replication is only to clarify / answer, such
averments in the written statement which are at variance with
the stand in the plaint.
71. During the course of his submissions, Mr. Mehta, had
also advanced a plea that the stage for completion of
pleadings will only arise after leave was granted by the Court
in the application / Suit preferred under Section 92 of the
CPC. In other words, it is his submission occasion has not
arisen for the plaintiff to file replication. This plea is clearly
an afterthought as during one of the hearings before the
learned Joint Registrar time was sought by the plaintiff for
filing the replication. Even a prayer in this Chamber Appeal
is for condoning delay in filing the replication and taking the
same on record. Suffice would it be to state that the said
submission made is contrary to the prayer made in this
Chamber Appeal.
72. Hence, it must be held that the Ld. Joint Registrar has
rightly closed the right of the plaintiff / appellant (in OA
122/2019) to file the replication. Accordingly, the Chamber
Appeal is dismissed.
CS(OS) 149/2018 and CS(OS) 182/2019
Be listed under the heading "Direction" before the
Court on October 23, 2020 (CS (OS) 149/2018) and on
November 2, 2020 (CS(OS) 182/2019) for further
proceedings.
V. KAMESWAR RAO, J
AUGUST 06, 2020/ak/jg
