Full Judgment Text
$~50
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Decided on: 04.05.2022
+ FAO(OS) (COMM) 106/2022 & CM APPL. 21381/2022
M/S VIDHI ELECTRICAL AND ENGINEERING
COMPANY ..... Appellant
Through: Mr. A.L. Raju and Mr. Sunny
Kumar, Advocates.
versus
M/S C AND S ELECTRIC LTD & ANR. ..... Respondents
Through: Mr. B.K. Singh, Ms. Urvi
Kashiwal and Mr. Hardik
Ahluwalia, Advocates.
CORAM:
HON'BLE MR. JUSTICE NAJMI WAZIRI
HON'BLE MS. JUSTICE SWARANA KANTA SHARMA
NAJMI WAZRI, J. (ORAL)
The hearing has been conducted through hybrid mode (physical
and virtual hearing).
CM APPL. 21382/2022 (Exemption)
1. Allowed, subject to all just exceptions.
2. The application stands disposed-off.
FAO(OS) (COMM) 106/2022 & CM APPL. 21381/2022
3. This appeal impugns the order dated 13.04.2022 passed in
FAO(OS) (COMM) 106/2022 Page 1 of 5
Signature Not Verified
Digitally Signed By:KAMLESH
KUMAR
Signing Date:12.05.2022
12:17:44
C.S.(COMM.) 619/2017 dismissing the appellant’s application
for taking its Written Statement (‘WS’) on record and further
seeking stay of the suit. The issue in the suit was whether the
WS was filed within the prescribed time. It is to be filed within
30 days. However, a further grace period of 90 days can be
granted upon an application being filed. In all, 120 days can be
granted towards filing of the WS. But for the extension beyond
30 days, delay for each day has to be justified. The issue to be
determined is the date on which the appellant was served the
summons. By order dated 24.09.2019, a third opportunity was
granted to the respondent herein by the learned Joint Registrar
to effect the summons upon the defendents/present appellant.
The returnable date was 28.11.2019. On the said date, the
appellant’s counsel filed a vakalatnama. It was noted by the
learned Joint Registrar that notice had already been effected
upon the defendents by way of affixation on 19.09.2019. That
being the position, the defendent ought to have filed the WS
within 30 days of receipt of the notice. Assuming that the
appellant had not been effectively served the notice on the said
date, and if the second date i.e. 28.11.2019 is accepted as the
date of effective service, then the WS was to be filed within 30
days therefrom i.e. by 28.12.2019. Instead, a WS was filed on
25.02.2020. The said document remained under objection and
its status is not known. It was for the party concerned to have
ensured that it was on record.
4. Be that as it may, the application (IA 5892/2022) seeking WS to
FAO(OS) (COMM) 106/2022 Page 2 of 5
Signature Not Verified
Digitally Signed By:KAMLESH
KUMAR
Signing Date:12.05.2022
12:17:44
be taken on record was dismissed, since there was no
application seeking condonation of delay in filing the WS
beyond 30 days; no cause for the delay was placed before the
court. Delays cannot be condoned automatically or even without
asking. The impugned order has referred to the dicta of the
Supreme Court in M/s SCG Contracts India Pvt. Ltd. vs. KS
Chamankar Infrastructure Pvt. (2019) 12 SCC 2020, which has
held inter alia as under:
“ 11. The law with regard to timelines for filing written
statement in a commercial suit has been settled by the
judgment of the Supreme Court in M/s. SCG Contracts
(supra). The relevant portion of the said judgment is as
under :
“8. ...
A perusal of these provisions would show that
ordinarily a written statement is to be filed
within a period of 30 days. However, grace
period of a further 90 days is granted which the
Court may employ for reasons to be recorded in
writing and payment of such costs as it deems
fit to allow such written statement to come on
record. What is of great importance is the fact
that beyond 120 days from the date of service of
summons, the defendant shall forfeit the right to
file the written statement and the Court shall
not allow the written statement to be taken on
record. This is further buttressed by the proviso
in Order 8 Rule 10 also adding that the court
has no further power to extend the time beyond
this period of 120 days.”
FAO(OS) (COMM) 106/2022 Page 3 of 5
Signature Not Verified
Digitally Signed By:KAMLESH
KUMAR
Signing Date:12.05.2022
12:17:44
5. Furthermore, a Division Bench of this court by order dated
14.07.2021 in Sunil Sahoo vs. vs. Anoop Kumar Jain in FAO
(COMM) 110/2021, wherein admittedly WS was not filed
within 30 days period from the date of receipt of summons and
the appellant did not file any application before the learned
Trial Court seeking extension of time for filing the WS, much
less show any cause for seeking such extension or for the
inability to file the WS within the prescribed time. It was held
that the learned Trial Court was correct in closing the right of
the appellant to file the WS. The present case is identical.
6. Insofar as the statute requires the filing of WS within 30 days
and in justifiable cases grant of extension beyond 30 days up to
120 days, it would be necessary that the application seeking
condonation of delay be filed along with WS to explain and put
before the court the constraints in filing the WS within time.
Only in justifiable cases would the delay be condoned. Such
application has not been filed till date. In the absence of an
application before the learned Single Judge, no relief could
possibly have been granted to the appellant. It is noted that the
WS is still lying under objections.
7. The court finds no reason to differ with the view taken by the
learned Single Judge.
FAO(OS) (COMM) 106/2022 Page 4 of 5
Signature Not Verified
Digitally Signed By:KAMLESH
KUMAR
Signing Date:12.05.2022
12:17:44
8. The appeal, along with the pending application, is accordingly
dismissed.
NAJMI WAZIRI, J
SWARANA KANTA SHARMA, J
RW
MAY 4, 2022/
FAO(OS) (COMM) 106/2022 Page 5 of 5
Signature Not Verified
Digitally Signed By:KAMLESH
KUMAR
Signing Date:12.05.2022
12:17:44