Delhi High Court
Sh Rishabh Kumar Anand vs Atul Gupta on 29 May, 2025
$~24
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Date of Decision: 29th May, 2025
+ CM(M) 1016/2025 & CM APPL. 33509-33510/2025
SH RISHABH KUMAR ANAND .....Petitioner
Through: Mr. Sudhanshu Sikka with
Mr. Ambrish Sharma, Ms. Nancy
Thapar, Mr. Himanshu Maan,
Ms. Anjali Mathur and Ms. Sonia
Kumari, Advocates.
versus
ATUL GUPTA .....Respondent
Through: Mr. Sunil Mittal, Advocate
(through V.C.)
CORAM:
HON'BLE MR. JUSTICE MANOJ JAIN
J U D G M E N T (oral)
1. Petitioner is defending a suit which is commercial in nature.
2. Admittedly, he was served on 10.09.2024 and the written
statement was filed by him on 28.11.2024. However, the written
statement has been taken off the record merely for the reason that the
application seeking condonation of delay had been filed belatedly i.e.
beyond a period of 120 days.
3. In this regard, the learned Trial Court has, primarily, relied upon
M/s OK Play India Pvt. Ltd. Vs M/s A P Distributors & Anr: 2021 SCC
OnLine Del 4079, passed by this Court on 17.08.2021 in CM(M)
346/2020. However, it seems that the attention of the learned Trial
Court was not drawn to the fact that the abovesaid judgment of this
Court has already been set aside by the Hon'ble Supreme Court in A.P.
Distributors and Another vs. OK Play India Pvt. Ltd.: 2022 SCC
OnLine SC 1512 and the Hon'ble Supreme Court, in its order dated
12.09.2022, has observed as under:-
"1. Leave granted.
2. Having heard learned counsel for the respective parties
and in the facts and circumstances of the case and considering
the fact that the written statement was filed on the 34th day of the
service of notice of summons, however, the application for
condonation of delay was filed which was beyond the period of
120 days, the High Court has taken too technical view in setting
aside the order passed by the learned Commercial Court
directing to accept the written statement filed on behalf of the
appellants/defendants. The High Court was not justified in
setting aside the order passed by the learned Trial Court
directing to take the written statement on record.
3. In view of the above and for the reasons stated
hereinabove, the present appeals succeed. The impugned
judgment and orders passed by the High Court are hereby
quashed and set aside and the order passed by the learned Trail
Court directing to take written statement on record after
condoning the delay in submitting the written statement is hereby
restored.
4. The present Appeals are accordingly allowed. No costs."
4. Sh. Sunil Mittal, learned counsel for plaintiff has joined the
proceedings through video conferencing and leaves it to this Court to
pass appropriate order.
5. Evidently, impugned order is not sustainable as reliance has been
placed upon a judgment which has already been set aside by the
Hon'ble Supreme Court. As per the abovesaid judgment of the Hon'ble
Supreme Court, the written statement cannot be refused to be accepted,
merely for the reason that the application for condonation of delay was
submitted beyond the period of 120 days. In the case in hand, the
defendant was served on 10.09.2024 and written statement was filed on
28.11.2024 and thus, after excluding the initial permissible period of 30
days, there is a delay of 49 days.
6. Keeping in mind the overall facts of the case, the petition is
allowed and the written statement is, thus, directed to be taken on
record. However, for belated filing of the written statement, the
petitioner/defendant is burdened with a cost of Rs.10,000/-, which shall
be paid to the plaintiff on next date of hearing, before the learned Trial
Court.
7. The petition stands disposed of accordingly.
8. Pending applications also stand disposed of in aforesaid terms.
(MANOJ JAIN)
JUDGE
MAY 29, 2025
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