Order 5

Order Details: COPY OF JUDICIAL PROCEEDINGS
Pdf Text: 1
CS (COMM.)/306/2024
CNR NO. :DLND010028122024
MUKUL GUPTA MARKETING PVT LTD
VS.
SMT LALITA
07-11-2024
Present : Ms. Kajal Pal, Proxy Counsel for Ms. Monica Goel,
Advocate for plaintiff (
Through v/c).
Sh. Krishan Lal, husband of defendant is present in
person.
Heard. File perused.
Self attested copy of Aadhar Card as proof of identity
of Sh. Krishan Lal, husband of the defendant is filed today on record.
Signature of Sh. Krishan Lal be also obtained on the bottom of
proceedings dated 30-9-2019 in token of his appearance before this
Court.
It is jointly informed on behalf of both the sides, that
matter could not be settled between the parties and thus, the matter
may be proceeded further in accordance with law.
As per Ahlmad’s report, written statement has not
been filed by the defendant as on date.
Ld. Proxy Counsel of plaintiff, after pointing out from
the record, stated that the defendant was duly served with the
summons of the suit on 11-6-2024 through Speed Post and affidavit
of service alongwith tracking report has already been filed by the
plaintiff on record to substantiate the said submission. She further
stated that since maximum period of 120 days has already expired
from the said date of service, therefore, defence of the defendant
may be struck off.
Arguments heard on the said aspect. Record perused
CS (COMM.)/306/2024 Page 1 of 3
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Admittedly, the summons alongwith entire paper
book were duly served upon defendant on 11-06-2024 through
Speed Post, as per tracking report filed on record alongwith
affidavit of service by the plaintiff. Further, admittedly, maximum
period of 120 days has already expired and no written statement
has been filed by the defendant as on date on record.
As per the Proviso of Sub Rule 1 of Order V Rule 1
CPC as applicable to the Commercial Courts Act, 2015, the
defendant is required to file written statement within 30 days
(extendable upto 120 days with the leave of the court and that too
subject to appropriate terms) from the date of service of the
process.
Now, it is no more
res integra that in a commercial
suit, the Court does not have power to condone the delay beyond
120 days. It would be apposite to reproduce the relevant portion of
the judgment passed by Hon’ble Apex Court in case titled as “
SCG
Contracts India Pvt. Ltd. v. K. S. Chamankar Infrastructure Pvt.
Ltd. & Ors.,” AIR 2019 SC 2691, to quote:-
“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 OrderVIII Rule 10 also
adding that the Court has no further power to extend
the time beyond this period of 120 days.
10. Several High Court judgments on the amended
Order VIII Rule 1 have now held that given the
consequence of non-filing of written statement, the
amended provisions of the Code of Civil Procedure
CS (COMM.)/306/2024 Page 2 of 3
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will have to be held to be mandatory. [See Oku Tech
Private Limited v. Sangeet Agarwal and Ors. by a
learned Single Judge of the Delhi High Court dated
11.08.2016 in CS (OS) No. 3390/2015 as followed by
several other judgments including a judgment of the
Delhi High Court in Maja Cosmetics v. Oasis
Commercial Pvt. Ltd. MANU/DE/7868/2017.
11. We are of the view that the view taken by the Delhi
High Court in these judgments is correct in view of the
fact that the consequence of forfeiting a right to file the
written statement; non-extension of any further time;
and the fact that the Court shall not allow the written
statement to be taken on record all points to the fact
that the earlier law on Order VIII Rule 1 on the filing
of written statement under Order VIII Rule 1 has now
been set at naught.”
In view of law laid down in aforesaid judgment and
keeping in view the fact that written statement has not been filed
by the defendant till date and maximum period of 120 days has
already expired, the opportunity of the defendant to file written
statement is hereby closed. Consequently, the defence of the said
defendant is hereby struck off.
Plaintiff is directed to file list of witnesses within
2 weeks from date of this order.
Put up on 19.12.2024 for PE.
Advance copy of affidavit in evidence of witness(s) be
supplied to opposite side, with limited right of cross-examination as
available under the law, at least one week prior to next date of
hearing. Steps for summoning of witnesses,if any, as per list of
witnesses, be also taken well in advance.
(VIDYA PRAKASH)
District Judge (Commercial Court)-02
Patiala House Court, New Delhi.
07-11-2024(r)
CS (COMM.)/306/2024 Page 3 of 3
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