Sudhakar Singh & Anr vs M/S Webkul Software Pvt Ltd
2020 Latest Caselaw 547 Del

$~7
*      IN THE HIGH COURT OF DELHI AT NEW DELHI
                                Date of decision: 28th January, 2020
+          CM(M) 50/2020 and CM APPL. 2249/2020, 2250/2020
       SUDHAKAR SINGH & ANR                         ..... Petitioners
                     Through: Mr. Navdeep Dev Singh, Advocate
                               (M: 9654417727).

                          versus

       M/S WEBKUL SOFTWARE PVT LTD                           ..... Respondent

Through: None.

CORAM:

JUSTICE PRATHIBA M. SINGH Prathiba M. Singh, J(Oral)

1. The present petition impugns order dated 14th August, 2019 by which the defence of the Defendants/Petitioners (hereinafter, "Defendants") has been struck off by the ld. ADJ. The said order reads as under:-

"Application u/S. 151 CPC alongwith Court fees was filed by plaintiff on 01.04.2019. As the Court fees has been filed in compliance of Order dated 16.03.2019, application is allowed and Court fees is taken on record.

Written statement was filed by defendants on 07.06.2019 alongwith application seeking condonation of delay. Copy stated to be supplied. Submissions heard on the application. It is argued by Ld. Counsel for defendants that the issue in the present dispute pertains to functioning of computers, especially software and coding which require specialised / technical understanding as well as research on copyright issues. Hence, there has been a slight delay in the filing of the written statement which is bonafide and hence application may be allowed and written statement may be taken on record.

In rebuttal, counsel for plaintiff has argued that the defendants have failed to disclose the date of service. Further, the reason advanced is not cogent as paucity of knowledge of law or technical issues is no ground to seek condonation of delay. Even otherwise, the written statement as filed cannot be taken on record for want of affidavit of admission/denial.

I have given careful consideration to the submissions advanced in the light of judicial record. At the outset, summons were not received back either served or unserved through ordinary process and hence it is not possible to make any observations as to the date of service of summons. Further, the defendants have also failed to disclose on affidavit as to in what manner /by which mode, they were served. Be that as it may, as the PF was filed on 18.03.2019, the defendants are deemed to be served within week of the issuance of summons i.e. on or before 25.03.2019. Further, the written statement has been filed on 07.06.2019. As per the Commercial Courts Act, period of 120 days has been prescribed for filing written statement, hence, WS is within prescribed period of limitation. However, the Act also prescribes that written statement must be mandatorily accompanied with affidavit of admission/denial of documents if any, annexed with the plaint. The defendants have failed to comply with the aforesaid mandatory requirement. More than 120 days have elapsed since service of the summons. Accordingly, application seeking condonation of delay is dismissed as written statement though filed in the prescribed period of limitation is not accompanied with affidavit of admission/denial and mandatory period of 120 days has already elapsed. Accordingly, defence of defendants is struck off.

Matter now be listed for plaintiff evidence on 23.10.2019."

2. Ld. counsel for the Defendants submits that neither the summons

which were issued to the Defendants called for affidavit of admission/denial to be filed, nor was there an order to the said effect. He submits that the written statement was filed within the 120 days' period, but the defence has been struck off on the ground that the affidavit of admission/denial has not been filed.

3. A perusal of the various orders passed by the Trial Court shows that summons were issued in the suit on 23rd February, 2019. The Plaintiff initially did not take steps to serve the Defendants and fresh summons were issued on 16th March, 2019. Thereafter, on 1st May, 2019, the Defendants were directed to file their written statement along with an affidavit disclosing the date of service of summons. The said order reads as under:-

"Counsel for defendant Sh. Navdeep Dev Singh has filed vakalatnama on behalf of both the defendants. Copy of plaint alongwith documents stated to be supplied.

Defendants are directed to file written statement alongwith affidavit disclosing date of service of summons on the defendants with four weeks. Copy be supplied to the opposite side through any of the prescribed modes. In case of delay, application seeking condonation be filed which shall be considered on merits on next date.

Put up for completion of pleadings, exploring possibilities of settlement on 14.08.2019. Duly instructed AR / parties to remain present for ascertaining if any settlement is possible."

4. A perusal of the summons which were issued shows that in the said summons, there is no mention of the Defendants being called upon to file the affidavit of admission/denial along with the written statement. The summons were also not issued as per the format for commercial disputes

notified by Delhi High Court on 27th November, 2015, which may be due to the fact that the said format applies only to the Original Side of the Delhi High Court. The summons in the district courts, insofar as they concern the Commercial Courts and commercial disputes, would be required to be amended in accordance with the Commercial Courts, Commercial Division and Commercial Appellate Division of the High Courts Act, 2015 ("Commercial Court Act, 2015"). Moreover, under Order VIII CPC as amended by the Commercial Courts Act, 2015 filing of the affidavit of admission/denial as applicable to Commercial Courts, is not compulsory. The filing of the affidavit of admission/denial has been made compulsory only in the Delhi High Court (Original Side) Rules, 2018. Thus, striking off the defence, despite the written statement being placed on record, on the ground that the affidavit of admission/denial was not filed is not tenable. The same is accordingly set aside.

5. The Defendants are permitted to file the affidavit of admission/denial within two weeks. The written statement already filed by the Defendants shall be taken on record. Ld. counsel for the Defendants, at this stage, submits that even the statement of truth has not been filed and the trial court has wrongly recorded in the impugned order that the defence is struck off due to non-filing of affidavit of admission/denial. A perusal of the impugned order shows clearly that the defence is struck off due to non-filing of the affidavit of admission/denial. In order to avoid any ambiguity, if the statement of truth is not filed, let the same be filed within two weeks in accordance with the provisions of the Commercial Courts Act, 2015

6. The petition with all pending applications is disposed of in these terms. The worthy Registrar General to place the present order before the

Hon'ble Chief Justice on the administrative side, for issuance of directions, as may be required, in respect of amendments to be carried out in the summons and other notices to be issued by the Commercial Courts functioning in the various Districts in Delhi, so that litigants are made aware about the timelines under the Commercial Courts Act, 2015.

7. Order dasti under signature of the Court Master.

PRATHIBA M. SINGH JUDGE

JANUARY 28, 2020 MR