Delhi High Court
Frankfinn Aviation Services ... vs Tata Sia Airlines Ltd. on 24 July, 2023
$~24
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of decision: 24th July, 2023
+ CS(COMM) 54/2022 and I.A. 1795/2022, 3651/2022, 3652/2022,
10407/2023
FRANKFINN AVIATION SERVICES PRIVATE
LIMITED ..... Plaintiff
Through: Mr. Kapil Midha & Ms. Samiksha
Gupta, Advs. (M: 9318887589)
versus
TATA SIA AIRLINES LTD. ..... Defendant
Through: Ms. Kruttika Vijay, Mr. Aditya
Gupta, Mr. Mukul Kochhar, Advs.
CORAM:
JUSTICE PRATHIBA M. SINGH
Prathiba M. Singh, J. (Oral)
1. This hearing has been done through hybrid mode.
I.A.10407/2023 (for delay)
2. This is an application filed by the Plaintiff seeking condonation of
delay in filing replication. Ld. Counsel for the parties have been heard. The
written statement was taken on record on 7th March, 2022. The Plaintiff
filed its replication on 18th April, 2022, however, without the affidavit of
admission/denial. The Registry raised objections in respect of the same on
19th April, 2022 and the Plaintiff filed the final replication on 10th May,
2022.
3. It is submitted by ld. Counsel for the Plaintiff that within the overall
time of 30 days given in aggregate to remove defects by the Delhi High
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Signing Date:26.07.2023
14:43:12
Court Original Side Rules, 2018 (hereinafter 'Original Side Rules'), the
Plaintiff has removed the defect of non-filing of admission/denial. He places
reliance upon the judgments in COSCO India Ltd. v. Paramsukh Nirman
Pvt. Ltd. 2019:DHC:3745 and COSCO International Pvt. Ltd. v. Jagat
Singh Dugar 2022:DHC:1406.
4. On the other hand, ld. Counsel for the Defendant relies upon the
judgment in Unilin Beheer B.V. v. Balaji Action Buildwell 2019 SCC
OnLine Del 8498 to argue that once the initial replication is itself not
accompanied by the admission/denial affidavit, that defect cannot be cured
later as the same is mandatory. Further, it is her submission that under
chapter IV , Rule 3 of the Original Side Rules, the maximum time that can
be permitted to a party to refile is 7 days at a time, and the same is 30 days
in case there are objections raised at multiple stages in respect of the
pleading/document.
5. Heard. This Court in COSCO India Ltd. (Supra) has held that there is
difference between 'filing a document' and 'bringing the same on record' .
Further, removal of defects has to be seen in the overall scheme of 30 days
which is permitted under Chapter IV Rule 3 of the Original Side Rules.
Moreover, the Court in the said judgment has considered the dictum of
Unilin Beheer B.V. (supra) and held as under:
"10. However, under Chapter VII, Rule 3 of the Delhi
High Court (Original Side) Rules, once a written
statement is filed, the same would not be brought on
record without the affidavit of admission/denial. It
would be one of the defects in the written statement if it
is not accompanied with the affidavit of
admission/denial. For re-filing and removing defects,
there is a total 30 days' period which is available to
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14:43:12
parties. Chapter I Rule 14 cannot be used to dispense
with the mandatory requirements under the Rules, but
only in respect of those rules where it is only a
question of practice and procedure. The time of seven
days from re-filing within the total period of 30 days
would have to be considered as a matter of practice
and procedure in the present case inasmuch as there
is a fundamental difference between the `filing of the
written statement' along with the affidavit of
admission/denial and `bringing the same on record'.
If the affidavit of admission/denial is not
accompanying the written statement, however, upon
the Registry pointing out the said defect, the same can
be cured within 30 days. If the said defect is cured, it
cannot be held that the written statement and the
affidavit of admission/denial cannot be brought on
record.
11. While the timelines for filing the written statement
within 120 days, are absolutely mandatory, removal
of defects has to be seen in the overall period of 30
days which is permitted under Rule 3 of Chapter IV.
In the present case, the first filing was on 15th
January, 2019, the second filing was on 25th January,
2019 and the final filing was on 15th February, 2019.
The time of 120 days expired only on 22nd January
2019, thus the written statement was filed within the
120 days period. The defects, which were pointed out
by the Registry i.e. not filing of admission/denial
affidavit was cured within the broad frame work of
Chapter IV, Rule 3 i.e. within 30 days of the initial
filing of the written statement.
XXX
14. Under these overall circumstances, this Court
holds that the written statement along with the affidavit
of admission/denial would be liable to be taken on
record as filing, re-filing, etc. are procedural matters
which the High Court Registry follows. Broadly if the
timelines are adhered to, the Court would not strike
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out the defence of a party, especially in a suit where
recovery of such a huge amount is being sought...."
6. It is submitted by ld. Counsel for the Plaintiff that an SLP filed
against the above order in Cosco India Ltd (supra) has been dismissed by
the Supreme Court. The said order in Special Leave to Appeal (C) No.
2138/2020 titled Cosco (India) Limited v. Paramsukh Nirman Pvt. Ltd.
dated 31st January, 2020 is extracted below:
"We are not inclined to entertain the Special Leave
Petition under Article 136 of the Constitution of
India.
The Special Leave Petition is, accordingly,
dismissed.
Pending application(s), if any, stand disposed of."
7. Having perused the judgments filed by both the parties, and taking
into consideration the fact that the replication was filed by the Plaintiff
within the stipulated time of 45 days, and the objections raised by the
Registry have been removed within 30 days, the replication is directed to be
taken on record subject to payment of Rs.10,000/- as costs to the Defendant.
Let the cost be paid within two weeks.
8. Application is disposed of.
CS (COMM) 54/2022 & I.As.1795/2022, 3651/2022, 3652/2022
9. List for hearing in all remaining applications on 4th December, 2023.
PRATHIBA M. SINGH
JUDGE
JULY 24, 2023/dk/sk
Signature Not Verified
Digitally Signed
Signing Date:26.07.2023
14:43:12
