Full Judgment Text
$~9
* IN THE HIGH COURT OF DELHI AT NEW DELHI
th
% Date of decision: 29 January, 2024
+ CS(COMM) 583/2019, I.A. 13046/2021
SPJ CARGO PVT. LTD. ..... Plaintiff
Through: Ms. Shantha Devi Raman and Mr.
Mayank Ranjan Yadav, Advocates
versus
SARAH FOODS ..... Defendant
Through: Mr. Karan Batura and Mr. Jayant
Chawla, Advocate.
CORAM:
HON'BLE MS. JUSTICE NEENA BANSAL KRISHNA
J U D G M E N T (oral)
I.A.13046/2021 ( under Section 151 of CPC on behalf of defendant seeking
Condonation of Delay in re-filing the application seeking Condonation of
Delay in filing the Written Statement )
1. An application has been filed seeking Condonation of Delay in re-
filing the application seeking Condonation of Delay in filing the Written
Statement has been filed on behalf of the defendant.
2. It is submitted in the application that an application for
Condonation of Delay of 12 days in filing the Written Statement was filed
on 17.03.2020. The said application was put in objection and was re-filed
only on 30.09.2021.
3. It is submitted in the application that the Apex Court in
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CS(COMM) 583/2019 Page 1 of 7
DigitallySigned By:SAHIL
SHARMA
Signing Date:06.02.2024
05:34:08
Re:Cognizance for Extension of Limitation Suo Motu Writ Petition (C)
3/2020 , 2022 3 SCC 117, had held that in order to obviate the difficulties
the period of limitation, irrespective of the period prescribed under General
or Special Laws, whether condonable or not, shall stand extended w.e.f
15.03.2020 till 28.02.2022.
4. It is submitted that though the Condonation application had been filed
on 17.03.2020, but the defendant came to know about the objections to the
Condonation application only in the month of October, 2020 when the
documents filed were marked as defective on 19.03.2020. The counsel for
the defendant immediately directed the Clerk to collect the documents from
the Registry of the High Court for rectification, but on reaching the counter,
the documents were not handed over to the Clerk on account of limited
number of officials working each day.
5. Thereafter , the Clerk of the counsel was able to collect the files only
after persistently following it with the concerned officials. It took some time
to consult the defendant for removal of the objections. Finally, the defects
could be removed and the application was re-filed on 27.11.2020. It is
submitted that the Condonation application along with the Written Statement
was re-filed on 27.11.2020. However, the Condonation application could
not be traced on record despite the Report being called from the Registry.
Eventually, the Condonation application was re-filed by the defendant on
30.09.2021 when it was taken on record.
6. Submissions heard.
7. In view of the judgment of the Apex Court in Re: Cognizance for
Extension of Limitation Suo Motu Writ Petition (C) 3/2020, the entire
period from 15.03.2020 till 29.02.2022 on account of Covid Pandemic has
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DigitallySigned By:SAHIL
SHARMA
Signing Date:06.02.2024
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been excluded from calculating the limitation. Thus, even though the
application has been filed after more than one year of initial filing in March,
2020, the entire period falls within the excluded period and the delay is
hereby condoned and the application is taken on record.
8. The application is accordingly disposed of.
I.A. 12974/2021 ( under Order VIII Rule read with Section 151 CPC on
behalf of the defendant )
9. An application has been filed on behalf of the defendant for
Condonation of Delay of 12 days in filing the Written Statement.
10. It is submitted in the application vide Order dated 04.12.2019 the
present suit was directed to be treated as an Ordinary suit under Order
XXXVII of CPC. Thereafter, the plaintiff with the permission of the Court,
made amendments in the plaint and the amended plaint was placed on
record.
11. On 28.01.2020 the plaintiff was directed to supply deficient copies of
the paper-book to the defendant within one week which was supplied on
03.02.2020 and the defendant was required to file their Written Statement
within 30 days of receipt of the documents.
12. The accountant of the defendant, who was well versed with the facts
of the present case, was affected by the Delhi Riots which took place in
February, 2020. He unexpectedly left for his home to his native place. It is
only after he returned back to Delhi that the Written Statement could be
drafted. However, the 30 day period granted vide Order dated 28.01.2020
commenced on 03.02.2020 and expired on 04.03.2020. There was a delay
of 12 days in filing the Written Statement which was filed in the Court on
17.03.2020. A prayer is therefore made that the delay of 12 days be
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DigitallySigned By:SAHIL
SHARMA
Signing Date:06.02.2024
05:34:08
condoned.
13. The application is contested by the plaintiff , who has clarified that
though the Written Statement along with an application for Condonation of
Delay of 12 days was filed on 17.03.2020 vide Diary No.418322 and
418301, but the same was returned by the Registry because of the defects
noted. The re-filing after removing the defects was not done by the
defendant for more than eight months.
14. It is asserted that ordinary filing was resumed vide Office Order
No.R-195/RG/DHC/2020 dated 08.05.2020 and physical filing of non-
urgent/ordinary matters was also resumed vide Office Order
No.250/RG/DHC/2020 dated 06.08.2020 despite which the defendant has
failed to take any steps to remove the defects raised by the Registry in
March, 2020 or to file the Written Statement within the given time.
15. It is further asserted that the re-filing has been done only on
17.11.2020 which is after eight months of the initial filing and after six
months of resuming of filing by the High Court. The Written Statement was
filed vide Diary No.1127736 of 2020 though without any fresh application
for Condonation of Delay. Since the re-filing has been done under a fresh
Diary number and not within the time frame, it cannot be considered as a
case of re-filing under Delhi High Court (Original Side) Rules, 2018 and the
delay has to be calculated viz-a-viz from the date of fresh filing.
16. The fresh Written Statement has been filed beyond the mandatory
period of 120 days and the same cannot be permitted to be taken on record
for which reliance has been placed on the judgment of the Apex Court in
M/s SCG Contracts India Pvt. Ltd. vs. K.S. Chamankar Infrastructure Pvt.
Ltd. & Ors. Civil Appeal No.1638 of 2019; Sagufa Ahmed & Ors. vs. Upper
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DigitallySigned By:SAHIL
SHARMA
Signing Date:06.02.2024
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Assam Plywood Products Pvt. Ltd. & Ors ., Civil Appeal 3007-3008 of 2020
decided on 18.09.2020, wherein a clear distinction has been drawn between
a period of limitation and a period up to which the delay can be condoned in
exercise of discretion conferred by the Statute. Reliance has also been
placed on Siddha Real Estate Development Pvt. Ltd. vs. Girdhar Fiscal
Services Pvt. Ltd. in CS 245 of 2019 of Calcutta High Court.
17. It is, therefore, submitted that the Written Statement having been filed
beyond the statutory period of 120 days, cannot be permitted to be taken on
record.
18. Submissions heard .
19. As per the submissions of the plaintiff itself, the Written Statement
was originally filed on 17.03.2020 along with a Condonation application.
However, it was returned on account of defects and was finally filed on
27.11.2020.
20. First and foremost, it may be observed that the Written Statement was
originally filed on 17.03.2020, which was though beyond 30 days but was
within a period of 120 days. It was duly supported by an application for
Condonation of Delay of 12 days. The Written Statement was therefore,
filed within the extended time frame that can be granted under the Proviso to
Order VIII Rule 1 CPC.
21. Unfortunately, because of the objections raised by the Registry, the
Written Statement was returned and was thereafter, filed only on 27.11.2020
when it was sought to be taken on record. The objection taken on behalf of
the plaintiff is that it being beyond the mandatory period of 120 days, there
is no discretion with the Court to extend the period for filing the Written
Statement.
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DigitallySigned By:SAHIL
SHARMA
Signing Date:06.02.2024
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22. Though, these arguments in the first instance may look attractive, but
it misses the point that the Written Statement originally was filed within the
given time frame. The plaintiff has placed reliance on Chapter VI Rule 3 of
the Delhi High Court (Original Side) Rules, 2018 which provides that
consecutive re-filings must be within a seven day limit and the multiple re-
filings must not exceed a thirty day aggregate. This being a case of more
than eight months, the filing on 27.11.2020 has to be necessarily taken as a
case of fresh filing.
23. Reference may be made to Re: Cognizance for Extension of
Limitation Suo Motu Writ Petition (C) 3/2020 , 2022 3 SCC 117, wherein
the Supreme Court has expressly excluded the period from 15.03.2020 to
28.02.2022 for the purpose of calculating the limitation.
24. The Written Statement has been filed during the year 2020 which was
when the Covid pandemic was at its peak. The Registry may have opened
from time to time, but the fact remains that this period in calculating the
limitation, stands excluded by the Order of the Apex Court.
25. Therefore, even if the arguments of the plaintiff that the objections
raised by the Registry to the re-filing, should have been removed within
seven days was to be accepted, then too in view of the express Order of the
Apex Court excluding this period for calculating limitation, the benefit of
this period has to inure to the defendant.
26. It is, therefore, held that the Written Statement has been filed within
the statutory period of 120 days. The Written Statement be taken on record.
27. The application is accordingly disposed of.
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DigitallySigned By:SAHIL
SHARMA
Signing Date:06.02.2024
05:34:08
CS(COMM) 583/2019
28. List before learned Joint Registrar for completion of pleadings on
04.03.2024.
(NEENA BANSAL KRISHNA)
JUDGE
JANUARY 29, 2024/ va
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CS(COMM) 583/2019 Page 7 of 7
DigitallySigned By:SAHIL
SHARMA
Signing Date:06.02.2024
05:34:08