[Cites 20, Cited by 0]
Delhi High Court
Shiva Buildtech Pvt Ltd & Ors vs Aggcon Equipments International Pvt ... on 13 April, 2026
$~40
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Date of Decision: 13th April, 2026
+ CS(OS) 56/2025 & O.A. 86/2026, I.A. 9988/2026
SHIVA BUILDTECH PVT. LTD. & ORS. .....Plaintiffs
Through: Mr. Ramesh Kumar, Adv.
Mob: 9540999465
Email: [email protected]
versus
AGGCON EQUIPMENTS INTERNATIONAL PVT. LTD. & ORS.
.....Defendants
Through: Mr. Santosh Kumar Chaurihaa, Adv.
(Through VC)
Mob: 9811193843
CORAM:
HON'BLE MS. JUSTICE MINI PUSHKARNA
MINI PUSHKARNA, J (ORAL):
1. The present chamber appeal has been filed under Rule 5 Chapter II of
the Delhi High Court (Original Side) Rules, 2018, against the order dated
20th November, 2025, passed by the learned Joint Registrar (Judicial) in I.A.
18293/2025, whereby, the delay in filing the written statement by defendant
nos. 1 to 3 was not condoned.
2. In the impugned order dated 20th November, 2025, the learned Joint
Registrar (Judicial) has held as follows:
"xxx xxx xxx
7. Perusal of record shows that the defendant nos. 1 to 3 were served
with the summons of the suit through email by the Registry on
20.03.2025 and were also served through ordinary mode on
26.03.2025. Thereafter, the said defendants filed the written statement
vide diary no.5063338 on 24.07.2025, which was returned under
objection. Perusal of record further shows that the defendants have
filed their written statement after expiry of extended period of 120
days. Since the condonable period for filing written statement is
already over, the captioned IA is dismissed.
xxx xxx xxx"
3. Perusal of the aforesaid order shows that it is the clear finding of the
learned Joint Registrar (Judicial) that the written statement of defendant nos.
1 to 3 has been filed after the expiry of the extended period of 120 days.
4. This Court notes that the present suit is governed by the Delhi High
Court (Original Side) Rules, 2018, wherein, as per Chapter VII Rule 2, the
period for filing of the written statement is counted from the date of service
of the summons. Rule 2 of the Chapter VII of the the Delhi High Court
(Original Side) Rules, 2018, reads as under:
"xxx xxx xxx
2. Procedure when defendant appears.--If the defendant appears
personally or through an Advocate before or on the day fixed for his
appearance in the writ of summons:--
(i) where the summons is for appearance and for filing written
statement, the written statement shall not be taken on record,
unless filed within 30 days of the date of such service or within
the time provided by these Rules, the Code or the Commercial
Courts Act, as applicable. An advance copy of the written
statement, together with legible copies of all documents in
possession and power of defendant, shall be served on plaintiff,
and the written statement together with said documents shall not
be accepted by the Registry, unless it contains an endorsement
of service signed by such party or his Advocate.
(ii) the Registrar shall mark the documents produced by parties
for purpose of identification, and after comparing the copies
with their respective originals, if they are found correct, certify
them to be so and return the original(s) to the concerned party.
xxx xxx xxx"
(Emphasis Supplied)
5. Further, Rule 4 of Chapter VII of the Delhi High Court (Original
Side) Rules, 2018, clearly stipulates that the written statement has to be filed
within a period of 30 days of receipt of the summons and the Court on being
shown sufficient cause, can extend the time for filing the written statement
for a further period not exceeding 90 days, but not thereafter. Rule 4 of
Chapter VII of the Delhi High Court (Original Side) Rules, 2018, reads as
under:
"xxx 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.
xxx xxx xxx"
(Emphasis Supplied)
6. Accordingly, it is manifest that the written statement has to be filed
within the outer limit of 120 days from the service of the summons. This
Court can condone delay beyond 30 days only for a further period not
exceeding 90 days, i.e., the Court has the authority and power to condone
delay in filing of written statement, which has been filed within the outer
limit of 120 days, with the caveat that sufficient cause has been shown by
the defendant for not filing within the period of 30 days.
7. The usage of the words 'but not thereafter' in Rule 4 of Chapter VII
of the Delhi High Court (Original Side) Rules, 2018 clearly shows that this
Court does not have any power to condone the delay in filing the written
statement beyond the stipulated period of 120 days.
8. In this regard, reference may be made to the judgment of the Supreme
Court in the case of P. Radha Bai and Others Versus P. Ashok Kumar and
Another, (2019) 13 SCC 445, wherein, while interpreting the words 'but not
thereafter', it has been held as follows:
"xxx xxx xxx
32.4. The limitation provision in Section 34(3) also provides for
condonation of delay. Unlike Section 5 of the Limitation Act, the delay
can only be condoned for 30 days on showing sufficient cause. The
crucial phrase "but not thereafter" reveals the legislative intent to
fix an outer boundary period for challenging an award.
xxx xxx xxx
33.2. The proviso to Section 34(3) enables a court to entertain an
application to challenge an award after the three months' period is
expired, but only within an additional period of thirty dates, "but not
thereafter". The use of the phrase "but not thereafter" shows that
the 120 days' period is the outer boundary for challenging an award.
If Section 17 were to be applied, the outer boundary for challenging
an award could go beyond 120 days. The phrase "but not thereafter"
would be rendered redundant and otiose. This Court has consistently
taken this view that the words "but not thereafter" in the proviso of
Section 34(3) of the Arbitration Act are of a mandatory nature, and
couched in negative terms, which leaves no room for doubt. (State of
H.P. v. Himachal Techno Engineers [State of H.P. v. Himachal
Techno Engineers, (2010) 12 SCC 210 : (2010) 4 SCC (Civ) 605] ,
Assam Urban Water Supply & Sewerage Board v. Subash Projects &
Mktg. Ltd. [Assam Urban Water Supply & Sewerage Board v. Subash
Projects & Mktg. Ltd., (2012) 2 SCC 624 : (2012) 1 SCC (Civ) 831]
and Anilkumar Jinabhai Patel v. Pravinchandra Jinabhai Patel
[Anilkumar Jinabhai Patel v. Pravinchandra Jinabhai Patel, (2018)
15 SCC 178 : (2019) 1 SCC (Civ) 141] .)
xxx xxx xxx
35. This Court in Popular Construction case [Union of
India v. Popular Construction Co., (2001) 8 SCC 470] 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:
(SCC pp. 474-75, para 12)
"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."
xxx xxx xxx"
(Emphasis Supplied)
9. Reference is also made to the judgment of the Division Bench of this
Court in the case of Manhar Sabharwal Versus High Court of Delhi and
Others, 2024 SCC OnLine Del 5945, wherein, while interpreting the words
'but not thereafter', it has been stated that the same means that beyond the
period as stipulated in the statute, the Court does not have the authority to
condone the delay beyond the extended period as noted therein. Thus, it has
been held as follows:
"xxx xxx xxx
10. In Chapter VII, Rule 4 of the DHC Original Side Rules, the
phrase „but not thereafter‟ is used, to stipulate that the period of
filing written statement may be extended beyond the period of thirty
days, for a further period not exceeding ninety days, but not
thereafter. The phrase „but not thereafter‟, as used in various
Legislations, and interpretation of the said phrase, as given in various
judgments, have been dealt with by the Division Bench of this Court in
the case of Ram Sarup Lugani v. Nirmal Lugani, wherein, it has been
held, as under:
xxx xxx xxx
15. This is not the first time that the phrase, "but not thereafter"
have been used in the statute. The said preemptory words have
been used in other provisions that have come up for
interpretation before the Supreme Court. In Union of
India v. Popular Construction Co., (2001) 8 SCC 470, the words
"but not thereafter" were used in relation to the power of the
court to condone the delay in challenging the award beyond the
period prescribed under Section 34 of the Arbitration and
Concilliation Act, 1996 and the Supreme Court observed as
below:--
"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.
16. Furthermore, Section 34(1) itself provides that recourse to a
court against an arbitral award may be made only by an
application for setting aside such award "in accordance with"
subsection (2) and sub-section (3). Sub-section (2) relates to
grounds for setting aside an award and is not relevant for our
purposes. But an application filed beyond the period mentioned
in Section 34, sub-section (3) would not be an application "in
accordance with" that sub-section. Consequently by virtue of
Section 34(1), recourse to the court against an arbitral award
cannot be made beyond the period prescribed. The importance
of the period fixed under Section 34 is emphasised by the
provisions of Section 36 which provide that
"where the time for making an application to set aside the
arbitral award under Section 34 has expired ... the award
shall be enforced under the Civil Procedure Code, 1908 in
the same manner as if it were a decree of the court".
This is a significant departure from the provisions of
the Arbitration Act, 1940. Under the 1940 Act, after the time to
set aside the award expired, the court was required to "proceed
to pronounce judgment according to the award, and upon the
judgment so pronounced a decree shall follow" (Section
17). Now the consequence of the time expiring under Section
34 of the 1996 Act is that the award becomes immediately
enforceable without any further act of the court. If there were
any residual doubt on the interpretation of the language used in
Section 34, the scheme of the 1996 Act would resolve the issue
in favour of curtailment of the court's powers by the exclusion of
the operation of Section 5 of the Limitation Act."
16. In Singh Enterprises v. Commissioner of Central Excise,
Jamshedpur, (2008) 3 SCC 70, on interpreting Section 35 of the
Central Excise Act, which contains similar provisions, the
Supreme Court has observed as under:
"8. The Commissioner of Central Excise (appeals) as also
the Tribunal being creatures of statute are not vested with
jurisdiction to condone the delay beyond the permissible
period provided under the statute. The period up to which
the prayer for condonation can be accepted is statutorily
provided. It was submitted that the logic of Section 5 of
the Limitation Act, 1963 (in short "the Limitation Act") can
be available for condonation of delay. The first proviso to
Section 35 makes the position clear that the appeal has to
be preferred within three months from the date of
communication to him of the decision of order. However, if
the Commissioner is satisfied that the appellant was
prevented by sufficient cause from presenting the appeal
within the aforesaid period of 60 days, he can allow it to be
presented within a further period of 30 days. In other
words, this clearly shows that the appeal has to be filed
within 60 days but in terms of the proviso further 30 days
time can be granted by the appellate authority to entertain
the appeal. The proviso to sub-section(1) of Section 35
makes the position crystal clear that the appellate authority
has no power to allow the appeal to be presented beyond the
period of 30 days. The language used makes the position
clear that the legislature intended the appellate authority to
entertain the appeal by condoning delay only up to 30 days
after the expiry of 60 days which is the normal period for
preferring appeal. Therefore, there is complete exclusion of
Section 5 of the Limitation Act. The Commissioner and the
High Court were therefore justified in holding that there was
no power to condone the delay after the expiry of 30 days'
period."
17. After referring to the above decision, in Commissioner of
Customs and Central Excise v. Hongo India Private
Limited, (2009) 5 SCC 791, the Supreme Court went on to
observe as under:
"30. In the earlier part of our order, we have adverted to
Chapter VI-A of the Act which provides for appeals and
revisions to various authorities. Though Parliament has
specifically provided an additional period of 30 days in the
case of appeal to the Commissioner, it is silent about the
number of days if there is sufficient cause in the case of an
appeal to the Appellate Tribunal. Also an additional period
of 90 days in the case of revision by the Central Government
has been provided. However, in the case of an appeal to the
High Court under Section 35-G and reference application to
the High Court under Section 35-H, Parliament has provided
only 180 days and no further period for filing an appeal and
making reference to the High Court is mentioned in the Act.
xxx xxx xxx
32. As pointed out earlier, the language used in Sections 35,
35-B, 35-EE, 35-G and 35-H makes the position clear that an
appeal and reference to the High Court should be made
within 180 days only from the date of communication of the
decision or order. In other words, the language used in other
provisions makes the position clear that the legislature
intended the appellate authority to entertain the appeal by
condoning the delay only up to 30 days after expiry of 60
days which is the preliminary limitation period for preferring
an appeal. In the absence of any clause condoning the delay
by showing sufficient cause after the prescribed period, there
is complete exclusion of Section 5 of the Limitation Act. The
High Court was, therefore, justified in holding that there was
no power to condone the delay after expiry of the prescribed
period of 180 days.
xxx xxx xxx
35. It was contended before us that the words "expressly
excluded" would mean that there must be an express reference
made in the special or local law to the specific provisions of
the Limitation Act of which the operation is to be excluded. In
this regard, we have to see the scheme of the special law which
here in this case is the Central Excise Act. The nature of the
remedy provided therein is such that the legislature intended it
to be a complete code by itself which alone should govern the
several matters provided by it. If, on an examination of the
relevant provisions, it is clear that the provisions of the
Limitation Act are necessarily excluded, then the benefits
conferred therein cannot be called in aid to supplement the
provisions of the Act. In our considered view, that even in a
case where the special law does not exclude the provisions of
Sections 4 to 24 of the Limitation Act by an express reference,
it would nonetheless be open to the court to examine whether
and to what extent, the nature of those provisions or the nature
of the subject-matter and scheme of the special law exclude
their operation. In other words, the applicability of the
provisions of the Limitation Act, therefore, is to be judged not
from the terms of the Limitation Act but by the provisions of
the Central Excise Act relating to filing of reference
application to the High Court."
xxx xxx xxx
19. In P. Radhabai v. P. Ashok Kumar, (2019) 13 SCC 445,
while construing the phrase, "but not thereafter" used in the
proviso to sub section (3) of Section 34 of the Arbitration and
Concilliation Act, the Supreme Court held thus:
"32.4. The limitation provision in Section 34(3) also
provides for condonation of delay. Unlike Section 5 of the
Limitation Act, the delay can only be condoned for 30
days on showing sufficient cause. The crucial phrase "but
not thereafter" reveals the legislative intent to fix an
outer boundary period for challenging an award.
xxx xxx xxx
33.2. The proviso to Section 34(3) enables a court to
entertain an application to challenge an award after the
three months' period is expired, but only within an
additional period of thirty dates, "but not thereafter". The
use of the phrase "but not thereafter" shows that the 120
days' period is the outer boundary for challenging an
award. If Section 17 were to be applied, the outer
boundary for challenging an award could go beyond 120
days. The phrase "but not thereafter" would be rendered
redundant and otiose. This Court has consistently taken
this view that the words "but not thereafter" in the
proviso of Section 34(3) of the Arbitration Act are of a
mandatory nature, and couched in negative terms, which
leaves no room for doubt. (State of H.P. v. Himachal
Techno Engineers [State of H.P. v. Himachal Techno
Engineers, (2010) 12 SCC 210 : (2010) 4 SCC (Civ) 605],
Assam Urban Water Supply & Sewerage Board v. Subash
Projects & Mktg. Ltd. [Assam Urban Water Supply &
Sewerage Board v. Subash Projects & Mktg. Ltd., (2012)
2 SCC 624 : (2012) 1 SCC (Civ) 831] and Anilkumar
Jinabhai Patel v. Pravinchandra Jinabhai Patel
[Anilkumar Jinabhai Patel v. Pravinchandra Jinabhai
Patel, (2018) 15 SCC 178 : (2019) 1 SCC (Civ) 141].)
34. In our view, the aforesaid inconsistencies with the
language of Section 34(3) of the Arbitration Act
tantamount to an "express exclusion" of Section 17 of the
Limitation Act."
xxx xxx xxx
21. A conspectus of the decisions referred to above leaves no
manner of doubt that where ever the phrase "but not thereafter"
has been used in a provision for setting a deadline, the intention
of the legislature is to treat the same as a preemptory provision.
Thus, if Rule 15 of the DHC Rules mandates filing of a replication
within a period of 30 days reckoned from the date of receipt of the
written statement, with an additional period of 15 days provided
and that too only if the court is satisfied that the plaintiff has been
able to demonstrate that it was prevented to do so by sufficient
cause or for exceptional and unavoidable reasons, can the time for
filing the replication be extended for a further period not exceeding
15 days in any event, with costs imposed on the plaintiff. The
critical phrase "but not thereafter" used in Rule 15 must be
understood to mean that even the court cannot extend the period
for filing the replication beyond the outer limit of 45 days provided
in the DHC Rules. Upon expiry of the said period, the plaintiff's
right to file the replication would stand extinguished. Any other
meaning sought to be bestowed on the above provision, would
make the words "but not thereafter", inconsequential.
xxx xxx xxx
31. In view of the aforesaid discussion, it is held that in case of
any inconsistency, the provisions of the Delhi High Court
(Original Side) Rules, 2018 will prevail over the Civil Procedure
Code. The inherent powers contemplated in Rule 16 are not to be
exercised to overcome the period of limitation expressly prescribed
in Rule 5 for filing the replication. Nor can Rule 5 be circumvented
by invoking any other provision or even the inherent powers of the
court, contrary to the scheme of the Rules. The phrase, "but not
thereafter" used in Rule 5 makes it crystal clear that the Rule is
mandatory in nature and the court cannot permit the replication
to be taken on the record after the plaintiff has exhausted the
maximum prescribed period of 45 days. Any other interpretation
will result in causing violence to the DHC Rules.
xxx xxx xxx
11. Thus, it is manifest that the phrase „but not thereafter‟, provides
for an action, which is mandatory in nature.
xxx xxx xxx"
(Emphasis Supplied)
10. The said principle was again reiterated by the Division Bench of this
Court in the case of Delhi Gymkhana Club Limited Versus Col. Ashish
Khanna Sm Retd. and Others, 2024 SCC OnLine Del 7022, wherein it has
been held as follows:.
"xxx xxx xxx
21. The purpose of fixing an outer time limit under Rule 4 of
Chapter VII of the DHC Original Side Rules for filing the written
statement is to ensure that the delay in filing of written statement
does not lead to further delay in adjudication of civil suits. The
validity of this Rule having been upheld by the Division Bench in
Manhar Sabharwal (supra), the said Rule becomes mandatorily
applicable to all suits including non-commercial suits before the
Delhi High Court (Original Side). Accordingly, the Court can only
extend the period of 30 days for filing of written statement by further
90 days, but not beyond the period of 120 days in total in the opinion
of this Court. The language of Rule 4, Chapter VII of the Delhi
High Court (Original Side) is clear when it uses the term „not
thereafter‟, as is seen from the text extracted above.
xxx xxx xxx"
(Emphasis Supplied)
11. Accordingly, it is clear that Delhi High Court (Original Side) Rules,
2018 are categorical to the extent of counting the period of filing of the
written statement from the date of service of the summons.
12. Therefore, since, in the present case admittedly the written statement
has been filed beyond the extended period of 120 days and the condonable
period for filing written statement is already over, this Court cannot condone
any delay beyond the extended condonable period.
13. Accordingly, no error is found in the order dated 20 th November,
2025, passed by learned Joint Registrar (Judicial). Therefore, the present
appeal is accordingly dismissed.
14. The pending application, i.e., I.A. 9988/2026 also stands dismissed.
CS(OS) 56/2025
15. List before the Joint Registrar (Judicial) on the date already fixed, i.e.,
31st July, 2026.
MINI PUSHKARNA, J
APRIL 13, 2026/SK
