Delhi High Court
Sunil Kumar Gupta vs Vatsal Mittal on 8 March, 2022
$~10 (2022 Cause List)
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of Decision: 08th March, 2022
+ CM(M) 130/2022 & CM APPL. 6448/2022
SUNIL KUMAR GUPTA ..... Petitioner
Through: Mr. Prashant Kumar Mittal,
Advocate (Mobile No.
9811088853).
versus
VATSAL MITTAL ..... Respondents
Through: Mr. Vinay Kumar, Advocate
(Mobile No. 9953587340).
CORAM:
HON'BLE MR. JUSTICE PRATEEK JALAN
PRATEEK JALAN, J. (ORAL)
%
The proceedings in the matter have been conducted through
video conferencing.
1. The petitioner, who is the defendant in CS (Comm) 276/2020
pending before the District Judge, Commercial Court-01, Shahdara,
Karkardooma Court, Delhi, assails an order dated 10.01.2022 by
which the Trial Court has taken his written statement off the record on
the ground of delay.
2. The plaintiff-respondent filed a suit for recovery of a sum of
₹6,40,801/- alongwith pendente lite and future interest on 22.02.2020.
Although there is some controversy with regard to the date of service
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of summons, the defendant's own case is that the summons were
served on 23.03.2021. The written statement was, however, filed only
on 26.08.2021, after lapse of the maximum period contemplated under
Order VIII Rule 1 of the Code of Civil Procedure, 1908 ["CPC"], as it
applies to commercial courts.
3. The defendant made an application under Order VIII Rule 1 of
the CPC for condonation of 35 days' delay in filing of the written
statement. The grounds taken were that the parties had been referred to
mediation on 23.03.2021, the very date when the summons were
served upon him. The parties were referred back to the Court on
19.07.2021. It was also stated that in the course of COVID-19
pandemic, the defendant and his counsel have suffered various
medical emergencies due to which the written statement could not be
filed.
4. By the impugned order dated 10.01.2022, the Trial Court has
negatived these contentions. Before the Trial Court, the defendant
relied inter alia upon the orders passed by the Supreme Court in Suo
Motu Writ Petition (Civil) No. 3/2020, whereby the period of
limitation for various purposes was extended in the wake of pandemic.
The Trial Court, noting the judgments of the Supreme Court and this
Court relating to interpretation of Order VIII Rule 1 of the CPC in the
context of commercial cases, found that the maximum time for filing
of the written statement had lapsed on 22.07.2021. Having regard to
the circulars issued by this Court from time to time with regard to the
virtual and physical hearings, the Trial Court observed that the
defendant could have placed his written statement on record within the
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time granted. The medical grounds urged by the defendant and his
counsel were also disbelieved. The Trial Court relied upon a judgment
of this Court dated 12.08.2021 in CM (M) 429/2021 [Bharat Kalra vs.
Raj Kishan Chabra], wherein this Court held that the extension of
limitation granted by the Supreme Court could not be used to benefit
the litigant who was not diligent.
5. Similarly, the Trial Court also relied upon the judgments of this
Court in Rajiv Sarin & Ors. vs. Directorate of Estate & Ors. [CS
(Comm) 12/2021, decided on 25.11.2021] and HT Media Limited &
Anr. vs. Brainlink International, Inc & Anr. [CS (Comm) 119/2020,
decided on 17.12.2021].
6. Having heard learned counsel for the parties, I am of the view
that the matter is no longer res integra. By a judgment dated
14.02.2022 in Civil Appeal No. 1318/2022 [Prakash Corporates vs.
Dee Vee Projects Limited], the Supreme Court has held, in the context
of a suit filed under the Commercial Courts Act, 2015, that the period
of limitation for filing of a written statement stood extended by virtue
of the orders of the Supreme Court in Suo Motu Writ Petition (Civil)
No. 3/2020. The defendant had appeared before the court but filed its
written statement belatedly. The Commercial Court in that case had, as
in the present case, declined an application under Order VIII Rule 1 of
the CPC on the ground that no extension could be granted for filing a
written statement, beyond the period of 120 days. The High Court
declined to interfere under Article 227 of the Constitution. The
Supreme Court reversed this view, and found in favour of the
defendant.
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7. After noticing the various orders passed by the Court from time
to time, as well as the administrative orders passed by the
jurisdictional High Court, the Supreme Court noted the consequences
of the Covid-19 pandemic, and observed as follows:-
52. When the movements and gatherings of persons were
fraught with dangers and when lockdowns became
inevitable, the institutions related with the task of
administration of justice were also required to respond to
the challenges thrown by this pandemic. In this regard,
this Court, apart from taking various measures of
containment, also took note of the practical difficulties of
the litigants and their lawyers; and this led to the suo
motu order dated 23.03.2020 in SMWP No. 3 of 2020.
53. In the consciously worded order dated 23.03.2020,
this Court, while taking note of the difficulties likely to be
faced by the litigants in filing their
petitions/applications/suits/appeals/proceedings within
the period of limitation, ordered that the period of
limitation in all such proceedings, irrespective of the
limitation prescribed under general or special laws,
whether condonable or not, shall stand extended w.e.f.
15.03.2020 until further orders. This order was passed in
exercise of plenary powers of this Court under Article
142 of the Constitution of India, which are
complementary to other powers specifically conferred by
various statutes. Even if the above referred provisions of
CPC had not been stated in specific terms, the general
mandate of the order dated 23.03.2020 was to extend the
period of limitation provided in any law for the time
being in force, irrespective whether the same was
condonable or not, w.e.f. 15.03.2020 and until further
orders. Noticeably, on 06.05.2020, when special periods
of limitation under different enactments like the Act of
1996 were referred to, this Court further ordered that the
limitation prescribed thereunder shall stand extended
w.e.f. 15.03.2020 until further orders. It was a time when
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the country was under the grip of lockdown, and the
Court provided that in case limitation had expired after
15.03.2020, the period between 15.03.2020 and lifting of
lockdown in the jurisdictional area would be extended for
a period of 15 days after lifting of lockdown.
xxxx xxxx xxxx
55. On 08.03.2021, suggestions were made before this
Court about lifting of lockdowns and likely return of
normalcy and, therefore, this Court considered it proper
to dispose of the said suo motu petition with specific
directions that while computing the period of limitation
for any suit, appeal, application or proceeding, the
period from 15.03.2020 to 14.03.2021 would stand
excluded. Though the said order dated 08.03.2021 was
passed with a belief that the adverse effects of the
pandemic were receding and normalcy was returning but,
the spread of virus continued and this led to an
exponential surge in COVID-19 cases; and to the second
wave of pandemic in the country around the months of
March-April, 2021. In this turn of events, this Court
again took up the matter in SMWP No. 3 of 2020 on MA
No. 665 of 2021, as moved by the Supreme Court
Advocate-on-Record Association and passed the
necessary order on 27.04.2021 in revival of the previous
orders.
xxxx xxxx xxxx
57. Reverting to the orders passed by this Court,
noticeable it is that on 27.04.2021, this Court restored
the order dated 23.03.2020 and it was directed, in
continuation of the order dated 08.03.2021, that the
periods of limitation as prescribed under any general or
special laws in respect of all judicial or quasi-judicial
proceedings, whether condonable or not, shall stand
extended. Ultimately, the said MA No. 665 of 2021 was
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disposed of on 23.09.2021 with this Court issuing
directions similar to those contained in the order dated
08.03.2021 but while providing that in computing the
period of limitation for any suit, appeal, application or
proceeding, the period from 15.03.2020 till 02.10.2021
shall stand excluded.
58. We are not elaborating on other directions issued by
this Court but, when read as a whole, it is but clear that
the anxiety of this Court had been to obviate the
hardships likely to be suffered by the litigants during the
onslaughts of this pandemic. Hence, the legal effect and
coverage of the orders passed by this Court in SMWP No.
3 of 2020 cannot be unnecessarily narrowed and rather,
having regard to their purpose and object, full effect is
required to be given to such orders and directions.9
59. As regards the operation and effect of the orders
passed by this Court in SMWP No. 3 of 2020, noticeable
it is that even though in the initial order dated
23.03.2020, this Court provided that the period of
limitation in all the proceedings, irrespective of that
prescribed under general or special laws, whether
condonable or not, shall stand extended w.e.f. 15.03.2020
but, while concluding the matter on 23.09.2021, this
Court specifically provided for exclusion of the period
from 15.03.2020 till 02.10.2021. A look at the scheme of
the Limitation Act, 1963 makes it clear that while
extension of prescribed period in relation to an appeal or
certain applications has been envisaged under Section 5,
the exclusion of time has been provided in the provisions
like Sections 12 to 15 thereof. When a particular period is
to be excluded in relation to any suit or proceeding,
essentially the reason is that such a period is accepted by
law to be the one not referable to any indolence on the
part of the litigant, but being relatable to either the force
of circumstances or other requirements of law (like that
of mandatory two months' notice for a suit against the
Government10). The excluded period, as a necessary
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consequence, results in enlargement of time, over and
above the period prescribed.
60. Having regard to the purpose for which this Court
had exercised the plenary powers under Article 142 of the
Constitution of India and issued necessary orders from
time to time in SMWP No. 3 of 2020, we are clearly of the
view that the period envisaged finally in the order dated
23.09.2021 is required to be excluded in computing the
period of limitation even for filing the written statement
and even in cases where the delay is otherwise not
condonable. It gets perforce reiterated that the orders in
SMWP No. 3 of 2020 were of extraordinary measures in
extraordinary circumstances and their operation cannot
be curtailed with reference to the ordinary operation of
law.
61. In other words, the orders passed by this Court on
23.03.2020, 06.05.2020, 10.07.2020, 27.04.2021 and
23.09.2021 in SMWP No. 3 of 2020 leave nothing to
doubt that special and extraordinary measures were
provided by this Court for advancing the cause of justice
in the wake of challenges thrown by the pandemic; and
their applicability cannot be denied in relation to the
period prescribed for filing the written statement. It
would be unrealistic and illogical to assume that while
this Court has provided for exclusion of period for
institution of the suit and therefore, a suit otherwise filed
beyond limitation (if the limitation had expired between
15.03.2020 to 02.10.2021) could still be filed within 90
days from 03.10.2021 but the period for filing written
statement, if expired during that period, has to operate
against the defendant.
62. Therefore, in view of the orders passed by this Court
in SMWP No. 3 of 2020, we have no hesitation in holding
that the time limit for filing the written statement by the
appellant in the subject suit did not come to an end on
06.05.2021."
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8. In the present case, Mr. Vinay Kumar, learned counsel for the
plaintiff-respondent, has referred to the fact that the defendant, in fact,
had entered appearance in the suit but did not file his written
statement. A similar argument is dealt with by the Supreme Court in
Prakash Corporates (supra) thus:-
"71. On behalf of the respondent, much emphasis has
been laid on the submission that the appellant was
regularly appearing in the Court and, therefore, cannot
take advantage of the orders passed in SMWP No. 3 of
2020. It is true that the appellant had indeed caused
appearance in the Court in response to the summons and
sought time for filing its written statement but at the
same time, it is also undeniable that at the relevant point
of time, the second wave of pandemic was simmering and
then, it engulfed the country with rather unexpected
intensity and ferocity. Then, on 27.04.2021, this Court
restored the operation of the order dated 23.03.2020 in
SMWP No. 3 of 2020. Putting all these factors together,
we are unable to accept the submissions made on behalf
of the respondent that because of earlier appearance
or prayer for adjournment, the defendant-appellant
would not be entitled to the relaxation available under
the extraordinary orders passed by this Court."
9. In the present case, the entire period under consideration [from
23.03.2021 to 26.07.2021] falls within the period contemplated in the
orders of the Supreme Court in Suo Motu Writ Petition (Civil) No.
3/2020. In view of the judgment of the Supreme Court in Prakash
Corporates, it follows that in the present case also, the time to file
written statement did not come to a close on 22.07.2021 as held by the
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Trial Court and, in fact, stood extended by virtue of the orders of the
Supreme Court passed in Suo Motu Writ Petition (Civil) No. 3/2020.
Consequently, the judgments of this Court relied upon in the order of
the Trial Court cannot assist the plaintiff in the facts and
circumstances of this case. In fact, as far as the judgment in Bharat
Kalra is concerned, it appears that a Special Leave Petition (C) No.
63/2022 is pending against the said judgment, in which the Supreme
Court has, by an order dated 28.01.2022, stayed further proceedings
before the Trial Court.
10. For the reasons aforesaid, the view taken by the Trial Court
cannot be sustained. The petition is, therefore, allowed and the
impugned order of the Trial Court dated 10.01.2022 is set aside. The
application of the defendant filed before the Trial Court under Order
VIII Rule 1 of the CPC is allowed and the Trial Court is directed to
take on record the written statement filed by the defendant on
26.08.2021.
11. I am informed that the proceedings are next listed before the
Trial Court on 31.03.2022. Learned counsel for the parties will appear
before the Trial Court on the said date and the Trial Court will take up
the matter for case management/ framing of the issues and pass further
directions in this regard.
12. Pending application stands disposed of.
13. There will be no order as to costs.
PRATEEK JALAN, J
MARCH 08, 2022/„vp‟/
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