The Delhi High Court has held that filing of a written statement within the prescribed time but without an accompanying affidavit of admission/denial of documents, does not amount to non-est filing, since it cannot be said that nothing was filed at all.

The single-judge bench of Justice Anup Jairam Bhambhani went on to clarify that the same would however amount to a defect, that will required to be cured after Registry brings it to attention.

"Chapter VII Rule 3 only bars taking on record a written statement that is filed without an accompanying affidavit of admission/denial of documents. Filing of the written statement and it being taken on record are two separate and distinct matters."

The Court reiterated that what Order V Rule 1(1) and Order VIII Rule 1 CPC provide is the outer time-limit for filing of the written statement of defence. The filling by the defendant of an affidavit of admission/denial of the plaintiff’s documents, is a separate requirement under Chapter VII Rule 3 and 4 of the Delhi High Court (Original Side) Rules, 2018; and the consequence for not filing such affidavit is that the written statement shall not be taken on record and that the plaintiff’s documents shall be deemed to be admitted by the defendant, it stated.

The present appeal has been filed under Chapter II Rule 5 of the Delhi High Court (Original Side) Rules, 2018 read with Section 151 CPC seeking setting aside of Joint Registrarb order declining to take the defendant’s written statement on record.

Counsel appearing for the appellant/defendant submitted that the defendant’s written statement duly supported by affidavit was filed within 120 days of the receipt of summons; however, the affidavit of admission/denial of documents, which had also been directed to be filed along with the written statement, was not filed along therewith. She pointed-out that it is in this backdrop, the Joint Registrar has taken the view that since there was delay of at least 03 months in filing of the affidavit of admission/denial of documents, over-andabove the prescribed period of 120 days stipulated for filing of the written statement, which period is sacrosanct and cannot be extended, the written statement itself cannot be taken on record.

The Counsel drew Court's attentioon to the provisions of law contained in the Code of Civil Procedure, 1908 as amended by the Commercial Courts Act, 2015 and of the Delhi High Court (Original Side) Rules 2018 (Order V Rule 1(1) and Proviso, CPC, Order VIII Rules 1 & 10 & Provisos, CPC, Chapter IV Rule 3, Delhi High Court (Original Side) Rules, 2018).

She stressed that in the present case, no objections or defects had been pointed-out by the Registry in relation to the filing of the written statement; and the defendant came to know that the written statement was not on record only at the hearing before the learned Joint Registrar on 09.05.2019; whereupon, the defect pointed-out, which related only to non-filing of the affidavit of admission/denial of documents, was cured and the said affidavit was filed within 19 days thereafter. Accordingly, it is submitted that the 30-day aggregate period available for curing of filing defects under Chapter IV Rule 3 of the Delhi High Court (Original Side) Rules, 2018 was also adhered to.

She thus submittedt that the written statement in the present case had indeed been filed within the time of 120 days prescribed under Order V Rule 1(1) and Order VIII Rule 1 CPC; and the only defect pointed-out subsequently was of not having filed the affidavit of admission/denial of documents alongwith the written statement; which defect was also cured within 19 days of it being pointed-out, well in compliance of the 30 days aggregate time period available for curing such defects under Chapter IV Rule 3 of the Delhi High Court (Original Side) Rules, 2018. It is therefore argued, that the impugned order deserves to be set-aside and the written statement ought to be taken on record.

On the other hand, while admitting that the written statement was filed within the prescribed period of 120 days, Learned Counsel for the respondent/plaintiff, submitted that such filing was non-est and defective.

The Court allowed the appeal after the above observations and accordingly set-aside the impugned order.

Case Title: COSCO INTERNATIONAL PVT. LTD. vs JAGAT SINGH DUGAR

Case Details: CS(COMM) 1052/2018

Coram: Justice Anup Jairam Bhambhani

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