Interim Order 23

Order Details: COPY OF ORDER
Pdf Text: IN THE COURT OF RAMESH KUMAR-II
DISTRICT JUDGE (COMMERCIAL COURT)-08,
CENTRAL, TIS HAZARI COURTS, EXTENSION BLOCK:
DELHI
CS (COMM) No. 568/23
IN THE MATTER OF:
DAYANAND ANGLO VEDIC TRUST AND MANAGEMENT
SOCIETY
Vs.
KAVIRAJ KHAJAN CHAND QUETTA DAV SR. SEC
SCHOOL
20.07.2026
ORDER
Vide this order, I shall dispose off the application under
Order VIII rule 1 CPC filed by the defendant seeking permission
to take on record the written statement or alternatively to
condone the delay in filing the same.
Before proceeding further, it is relevant to mention here
that the above-said application was allowed by my Ld.
Predecessor vide its order dated 18.03.2024 whereby the written
statement of the defendant filed on 10.11.2023 was taken on
record. The plaintiff challenged the said order dated 18.03.2024
before the Hon’ble High Court of Delhi vide CM(M)-IPD 9/2024
& CM 50/2024 and the Hon’ble High Court of Delhi partially
allowed the petition of the plaintiff and the matter was remanded
back to this court to consider the application afresh in applicable
rules and as per law.
Reply to this application has been filed on behalf of the
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plaintiff with a prayer to dismiss the application of the defendant
mainly on the ground that as per the Commercial Courts Acts,
this court does not have the power to condone the delay in filing
of the written statement after a period of 120 days.
Arguments on this application were heard on behalf of
both the parties.
During the course of arguments, Ld. Counsel for
defendant argued and submitted that the summons in the present
case were received by the defendant in May, 2023 however the
same were incomplete as the complete legible set of the plaint
alongwith documents were not attached.
He further submitted that on 30.05.2023, the defendant’s
counsel informed the court that he had not received a complete
paper-book of the plaint and similar request was made to the
counsel appearing for the plaintiff Mr. Anmol Mishra. The
counsel for defendant even exchanged his telephone number as
well as his office’s address with him so that he could supply a
complete of the plaint to the defendant’s counsel.
He further submitted that pursuant to this request, the
plaintiff’s counsel served the plaint set to the defendant’s
counsel, however some pages of this set were illegible and on
07.07.2023, this court directed the plaintiff’s counsel to serve a
legible set of page nos.142 to 146 of the plaint set to the
defendant, however the plaintiff failed to comply with this
direction.
He further submitted that on the next date of hearing i.e.
on 17.08.2023, defendant’s counsel appeared before this court
through V.C. and when the matter was called out, no one was
present on behalf of the plaintiff and the defendant’s counsel
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informed this court that the legible copy of the plaint set had yet
not been supplied by the plaintiff as was directed on the last
date. Additionally, the defendant’s counsel informed the court
that the documents to be filed by the defendant alongwith his
written statement pertain to pre-partition period and thus it is a
time-consuming task to obtain them.
He further submitted that later on it came to the
knowledge of the defendant counsel that the plaintiff had made
submissions to the court that complete set of documents have
been served on defendant counsel on 12.07.2023. That since the
said contention of the plaintiff counsel was incorrect the
defendant counsel again raised the said issue on the next date of
hearing i.e. 13.10.2023.
He further submitted that on 13.10.2023, the defendant’s
counsel submitted that no such message was ever sent to him
from the plaintiff’s counsel on 12.07.2023 and it is only on
13.10.2023 that the counsel appearing for the defendant served a
complete legible set of the plaint to defendant’s counsel.
He further submitted that copy of the screenshot of the
Whatsapp chat showing the entire chat from the mobile number
+918750391412 of Mr. Milind Srivastava, Advocate shows that
Mr. Milind Srivastava, Advocate served the missing pages of the
plaint on 13.10.2023 only. This WhatsApp chat further shows
that no message has ever been received from this number before
06.10.2023.
He further submitted that had the plaintiff actually served
the complete copy of the documents on 12.07.2023, there would
not have been any occasion for the plaintiff counsel to serve the
documents via WhatsApp on 13.10.2023 upon the number of the
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defendant counsel.
He further submitted that it is a settled position of law
that a service is deemed complete only when the entire set of the
plaint consisting of attached documents, affidavits, alongwith the
summons, are duly served upon the defendant.
He further submitted that it is an admitted fact that the
defendant’s counsel received the legible set of the plaint
alongwith its documents only on 13.10.2023 and pursuant
thereto the defendant filed its written statement on 09.11.2023,
however the online filing portal was not operational at that time
and since the written statement could not be filed online, the
same came to be filed before this court on 10.11.2023.
He further submitted that even as per plaintiff’s own
submission the said WhatsApp was allegedly sent from an
unknown number of one Mr. Milind Srivastava, who had neither
appeared for the plaintiff so far, nor had his name mentioned nor
his phone number mentioned on the plaint, nor the address from
attached with the plaint.
He further submitted that there is no equity in the
plaintiff’s stand that allegedly a copy of the plaint was sent from
one of their associates who is unknown to the plaint itself,
further unknown to this case and even unknown to the
defendant.
He further submitted that the plaintiff has admittedly not
supplied the plaint and its documents to the defendant at its
address or at its email address and the case is limited to having
allegedly supplied a legible set of the plaint through Whatsapp
only and even as per the applicable law and rules there is no
provision that enables the parties to service upon the other side
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through a WhatsApp message.
He further submitted that the Hon’ble Supreme Court has
ruled that WhatsApp is not a valid mode of service and even by
High Court of Delhi, there is no rule that prescribes the service
of court pleadings through WhatsApp only. The plaintiff
supplied the entire set of the plaint alongwith the legible
document to the defendant through WhatsApp on 13.10.2023.
He further submitted that without accepting this as a valid
service by the plaintiff, nevertheless, the defendant, pursuant
thereto, filed its written statement with this court on 10.11.2023.
He further submitted that the documents filed alongwith
the written statement would show that these documents are from
pre-partition period, some dated in 1950s and it has been
extremely difficult and time consuming for the defendant’s
current management to procure these documents as three
generations have progressed since the relevant time of these
documents.
He further submitted that the people at the current
management of the school had to get in touch with Mr. Pawan
Kumar Malhotra, sone of Mr. Kaviraj Khazanchand, who is
presently aged in his 90s and owing to his age, his memory is
weak and despite looking for the documents in the school, and at
his own residence, they could not be found with ease. Therefore,
it took time to locate and collect these documents which are
dated as back as in 1950s.
In view of the above, Ld. Counsel for defendant requested
to take the written statement on record or to condone the delay if
any in filing of the written statement.
Per contra, Ld. Counsel for plaintiff argued that courts do
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not have powers to condone the delay in filing the WS beyond
120 days.
He further submitted that the present application of the
defendant is liable to be dismissed as the same is based on
concealment of material facts and submissions and that as per
the Commercial Courts Act, this court does not have the power
to condone the delay in filing of the written statement after a
period of 120 days.
He further submitted that the complete set of documents
was supplied to the defendant on 12.07.2023 as already recorded
in the order dated 17.08.2023 but the defendant did not file
written statement within 30 days from 12.07.2023 and as such
this court closed the defendant’s right to file written statement
and listed the matter for plaintiff’s evidence.
He further submitted that on 21.02.2024, this court in its
order has been pleased to reiterate its observations and set the
record clear that since the complete documents, supporting the
plaint were supplied to the defendant by the plaintiff on
12.07.2023, the written statement, malafidely filed by the
defendant, cannot be taken on record.
I have perused the record and considered the submissions
of both the parties.
A perusal of the record reveals that on 12.07.2023, the
plaintiff supplied the copy of the legible documents to the
defendant through WhatsApp. The matter thereafter came up
before the Court on various dates. Significantly, despite being
aware of the proceedings, the defendant did not, at any point
prior to filing the Written Statement, challenge the mode of
service or seek appropriate orders from the Court on the ground
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that service through WhatsApp was not recognized under the
Delhi High Court Rules. No application questioning the validity
of such service or seeking fresh service was ever moved before
expiry of the statutory period. The plea founded upon Chapter VI
of the Delhi High Court Rules has been raised for the first time
only through the present application filed under Order VIII Rule
1 CPC, after the Written Statement had admittedly been filed by
the defendant on 10.11.2023, which is already beyond 120 days.
The conduct of the defendant assumes significance. A
counsel who genuinely disputes the legality of service is
expected to raise such objection at the earliest available
opportunity. The defendant, however, chose to remain silent
throughout the relevant period and permitted the proceedings to
continue without demur. Such conduct of the defendant is
inconsistent with the plea now sought to be raised and clearly
indicates that the objection is an afterthought intended to
circumvent the rigour of the statutory timeline prescribed under
the Commercial Courts Act.
It is also evident from the proceedings that the defendant
initially sought time on the plea of illegibility of certain pages,
whereupon the plaintiff supplied fresh legible copies. However,
even thereafter, the defendant never asserted that the earlier
service itself was
non est in law or contrary to the Delhi High
Court Rules.
The contention that the subsequent supply of legible
documents on 13.10.2023 revived or recommenced the period for
filing the Written Statement is equally devoid of merit. Mere
furnishing of better copies or additional legible documents,
particularly when done to avoid unnecessary controversy, cannot
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have the effect of extending or restarting the mandatory timeline
prescribed by statute. Acceptance of such a proposition would
defeat the very object of the Commercial Courts Act, namely,
expeditious adjudication of commercial disputes through strict
adherence to procedural timelines.
Now it is necessary to refer the relevant provisions of law
i.e Order VIII Rule 1 of the Civil Procedure Code which reads as
under:-
ORDER VIII 1 [1. Written Statement.—The Defendant
shall, within thirty days from the date of service of summons on
him, present a written statement of his defence: Provided that
where the defendant fails to file the written statement within the
said period of thirty days, he shall be allowed to file the same on
such other day, as may be specified by the Court, for reasons to
be recorded in writing, but which shall not be later than ninety
days from the date of service of summons.]
*[Provided that where the defendant fails to file the written
statement within the said period of thirty days, he shall be
allowed to file the written statement on such other day, as may be
specified by the Court, for reasons to be recorded in writing and
on payment of such costs as the Court deems fit, but which shall
not be later than one hundred twenty days from the date of
service of summons and on expiry of one hundred twenty 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.]
The proviso to Order VIII Rule 1 CPC, as amended by the
Commercial Courts Act, mandates the court that upon expiry of
120 days from the date of service, the defendant forfeits the right
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to file the Written Statement and the Court has no jurisdiction to
extend such period thereafter. The said provision has repeatedly
been held by the Hon'ble Supreme Court to be mandatory and not
merely directory, and thus this court does not have the power to
condone the delay in filing of the written statement after a period
of 120 days.
Further, the plaintiff has filed the screenshot of the
WhatsApp chats with the counsel for the defendant which
reflects the illegible documents were sent to the counsel for
defendant on 12.07.2023 and this court is satisfied that the
defendant has the knowledge of the same. The same was seen on
16.08.2023, a day before the matter is listed before this court on
17.08.2023. The counsel for the defendant can be seen from the
fact that the whatsapp being received by the counsel on
12.07.2023 alleged to be sent from unknown number was seen a
day just before the date fixed before this court. Had there been
any bonafide intention, the whatsapp chat received on 12.07.2023
should have been seen on that day or soon thereafter and if it was
illegible as alleged, the fresh copy could have been sought from
the counsel for the plaintiff much before 17.08.2023. The act of
opening the chat just a day before the date fixed before the court,
makes things very clear. The defendant has alleged that service of
documents through whatsapp is not proper as per the High Court
Rules and as per the judgments of the Hon'ble Supreme Court. In
this regard, it is sufficient to note that the defendant never
challenged this aspect before filing this application on
01.03.2024 and as a matter of record, sent the copy of the written
statement filed on 10.11.2023 to the counsel for the plaintiff
through whatsapp only. The defendant cannot be permitted to
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blow hot and cold by the same breath. Defendant itself is
disputing the service through whatsapp for the first time on
01.03.2024, but itself sent the WS through whatsapp on
10.11.2023 and the contention in this regard appears to be only
an after-thought with a motive to place on record the WS filed
belatedly. It was argued for the defendant that no whatsapp chat
was received from the plaintiff on 12.07.2023. This submission is
also contrary to the submissions made by the counsel on
13.10.2023. On that day, the counsel for the defendant stated that
no whatsapp was received from the plaintiff on 12.07.2023 and
also stated that it was not open as was from a new number and
further that even the documents sent in this chat was illegible.
The defendant is taking contradictory plea in this regard. On the
one day, it is stated that it was received on 12.07.2023, on the
other hand, it is stated that it was from a new number and was not
opened and further that it was not legible. On the aspect of
service of legible copy of document through whatsapp, the
counsel for the defendant has never sought for the fresh legible
copies of the documents and was never challenged the supply of
the documents through whatsapp before 01.03.2024, when the
condonation of delay application is filed. All these facts cannot
exist simultaneously, which constitutes that the submissions
made by the defendant were not bona fide.
Accordingly, the application under Order VIII Rule 1 CPC
seeking extension of time of filing the written statement is filed
by the defendant on 01.03.2024 after the expiry of 120 days,
mandatory period prescribed under the proviso to the Order VIII
Rule 1 CPC, written statement filed on behalf of the defendant
cannot be taken on record. Thus the application under order VIII
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Rule 1 CPC is not maintainable and same is disposed off as
dismissed.
(Announced in open court on 20.07.2026).
(RAMESH KUMAR-II)
District Judge (Commercial Court)-08
Central District, Tis Hazari Courts,
Extension Block, Delhi.
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