Application For Condonation Of Delay Must Be Submitted With A Written Statement Filed Beyond 30 Days Of Issue Of Summons: Delhi High Court

This would allow the court to consider the reasons so given, to condone delay and receive the belated written statement giving reasons for granting such leave and enabling the court to impose appropriate costs, added Justice Asha Menon.

"No application can be filed, seeking condonation of delay in filing the written statement after 120 days have elapsed from the date of service of summons."

This observation was made by the Single Judge Bench while hearing a petition under Article 227 of the Constitution of India aggrieved by the Commercial Court's order dated 26 November, 2019, whereby it had rejected the objections raised by the petitioner/plaintiff against the belated filing of the written statement by the respondents/defendants, allowing an application filed for condonation of delay much after the period of limitation.

Brief timeline of events:

The petitioner/plaintiff had filed a suit for the recovery of a sum of Rs.7,68,000/-.

Summons were duly served on the respondent on 23 January, 2019.

The written statement had to be filed by 22 February, 2019. However, the written statement was filed on 26 February 2019, with a delay of four days and, without the affidavit of admission and denial of documents, as mandated by the Delhi High Court (Original Side) Rules 2018.

The written statement was also not accompanied with any application seeking condonation of delay.

On 20 May 2019, the affidavit of admission and denial was filed after 118 days of the service of summons, and once again, no application for condonation of delay accompanied the filing of the said affidavit.

The Commercial Court heard the objections raised by the petitioner/plaintiff on 31 October 2019 and reserved the matter for order pronouncement at 4 PM that day.

However, at 4 PM itself, the Court accepted an application filed by the respondents under Section 151 C.P.C., for condonation of the delay in filing the written statement and re-fixed the matter for orders on 26th November 2019.

Submissions before Court:

Advocate Anirudh Wadhwa submitted that the petitioner was greatly prejudiced as the time lines in a commercial suit were strict and thus his client was entitled to a decree.

He argued that no application for condonation of delay could have been received once the matter was fixed for orders.

Advocate Wadhwa thus relied on Friends Motel Pvt. Ltd. Through its director Mr. Arun Dwivedi Vs. Shreeved Consultancy LLP & ors. pronounced by the Delhi High Court and the judgment of the Supreme Court in SCG contracts India Private Limited Vs. K.S. Chamankar Infrastructure Private Limited and Others.

Despite service, none appeared to argue on behalf of the respondents/defendants.

Court's findings:

Judge Menon found that the Commercial Court, in the impugned orders had noted the objections raised by the petitioner/plaintiff and had gone on to records the defendants' explanation that the written statement was delayed on account of the time taken for procuring the original documents.

"But what prevailed upon the learned Commercial Court was the fact that though the application for condonation of delay was filed only on 31st October, 2020, the written statement and the affidavit had been filed well within the period of 120 days, the period up to which time the court had powers to condone the delay. It was also of the opinion that as the application for condonation of delay had brought out cogent reasons to explain the delay, therefore, a hyper technical view was not called for", the Court noted.

The Court went on to state that certain amendments were carried out to the Civil Procedure Code through Section 16 of the Commercial Courts Act, 2015.

"The Supreme Court in its decision in SCG Contracts case has held that these timelines are to be mandatorily adhered to. It held that the Commercial Court dealing with a commercial suit had no discretion to condone delay and could not allow the written statement to be taken on record beyond the mandatory period provided under Order VIII Rule 1 CPC", it added.

The Court was thus of the view that since it was not for the court to furnish reasons for condoning the delay in filing the written statement, it was necessary that the defendant, submits an explanation for the delay, by moving an application in this regard.

"The learned Commercial Court erred in observing that the written statement and affidavit had been filed before the expiry of the 120 days' time that is available to the court to allow the filing of the written statement and use its inherent powers under Section 151 C.P.C. and to set at naught the mandatory provisions for filing of the written statement within 30 days or within the further period of 90 days allowed under Order VIII Rule 1 C.P.C., accompanied with an application seeking condonation of delay."

Accordingly, the impugned order was liable to be and was set aside. It was also held that the respondents had forfeited their right to file the written statement and the same was directed to be taken off the record.

The parties were thus directed to appear before the learned Commercial Court on 1 September, 2021 for the Commercial Court to consider the course it wishes to take under Order VIII Rule 10 C.P.C.

Click here to Download the Order.