Order 4

Order Details: COPY OF ORDER
Pdf Text: CS (Comm.) No.725/2024 (24)
M/s Prem & Sons V/s M/s A.S Foods
CNR No.DLNW01-011174-2024
19.05.2026
Present: Shri K.K Mishra, Ld. Counsel for the plaintiff (through VC)
and Shri Shashank Arora, Shri Parth Dev Chhbra,
Ld. Counsels for the plaintiff (present physically in Court)
alongwith Shri Prem Chand Gupta, A.R of the plaintiff in
person.
Shri Keshav Kumar Verma, Ld. Counsel for the defendant.
1. The A.R of the plaintiff is permitted to sign each page of the
plaint today in Court.
2. (i) I have heard the learned counsels for the parties on an
application filed by defendant under Order VIII Rule 1 CPC, seeking
condonation of delay in filing the Affidavit of admission/denial of
documents. As per the service report, the defendant was served in the
matter on 28.12.2024 and the written statement was filed on 29.01.2025,
which is within the period of limitation, however, the Affidavit of
admission/ denial of documents was filed on 12.05.2025, i.e beyond the
period of 120 days.
(ii) The learned counsel for the plaintiff submits that for not filing
the Affidavit of admission/denial of documents within the time frame
prescribed under Delhi High Court (Original Side) Rules, 2018, the written
statement filed by the defendant cannot be taken on record.
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3. In support of his contention, learned counsel for the plaintiff
has placed reliance upon the following two judgments, rendered by the
Hon’ble High Court of Delhi:
(i) Case reported as, “CS (OS) No.330/2022”, titled as, “VK
Sood PIL JV V/s South Delhi Municipal Corporation And Ors.”
(DOD: 08.04.2026); and
(ii) Case reported as, “CS (Comm.) No.844/2017”, titled as, “ITD
Cementation India Ltd. V/s Indian Oil Corporation Limited & Anr.”
(DOD: 06.10.2023).
4. I am afraid the Delhi High Court (Original Side) Rules, 2018
do not apply
mutatis mutandis to the proceedings before the District Judge
(Commercial Court). I am supported in my aforesaid view by the judgment
rendered by Hon’ble High Court of Delhi in case reported as, “CM (M)
No.50/2020”, titled as, “Sudhakar Singh & Anr. V/s M/s Webkul Software
Pvt. Limited” (DOD: 28.01.2020), whereby Hon’ble Ms.Justice Pratibha
M. Singh has been pleased to lay down as under:
xxxxx
4. A perusal of the summons which were issued
shows that in the said summons, there is no mention
of the Defendants being called upon to file the
affidavit of admission/denial along with the written
statement. The summons were also not issued as per
the format for commercial disputes notified by Delhi
High Court on 27th November, 2015, which may be
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due to the fact that the said format applies only to
the Original Side of the Delhi High Court. The
summons in the district courts, insofar as they
concern the Commercial Courts and commercial
disputes, would be required to be amended in
accordance with the Commercial Courts,
Commercial Division and Commercial Appellate
Division of the High Courts Act, 2015
(“Commercial Court Act, 2015”). Moreover, under
Order VIII CPC as amended by the Commercial
Courts Act, 2015 filing of the affidavit of
admission/denial as applicable to Commercial
Courts, is not compulsory. The filing of the affidavit
of admission/denial has been made compulsory only
in the Delhi High Court (Original Side) Rules, 2018.
Thus, striking off the defence, despite the written
statement being placed on record, on the ground that
the affidavit of admission/denial was not filed is not
tenable. The same is accordingly set aside.
xxxxx
5. Now, the question arises, as to whether the Affidavit of
admission/denial of documents can be taken on record in the facts and
circumstances of the case.
6. The trial commences before Civil Court after the pleadings in
the matter are complete. In the case in hand, there does not appear to be
unreasonable delay on the part of defendant in filing the Affidavit of
admission/denial of documents, however, it is a matter of record that the
same has been filed beyond the period of 120 days from the date of
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service. The Hon’ble High Court of Delhi in case reported as, “CS
(Comm.) No.1053/2018”, titled as, “Radha Phool Fin-Investments Pvt.
Limited V/s Paramsukh Nirman Pvt. Ltd.” (DOD: 06.08.2024), while
making a reference to another case reported as, “CS (Comm.)
No.1052/2018”, titled as, “COSCO International Pvt. Ltd. V/s Jagat Singh
Dugar” (DOD: 06.04.2022) has been pleased to lay down as under:
xxxxx
17. In Cosco-II (supra), another learned Single
Judge of this Court, again considering the above
issue and also upon taking note of the above referred
judgments, reiterated as under:
“14. What is noteworthy is that
having expressed the opinion in para
31 of Unilin Beheer B.V. (supra) as
extracted above, even in that case, the
Co-ordinate Bench allowed the
written statement (to the counter
claim) to be taken on record subject to
payment of costs; since, the written
statement and the affidavit of
admission/denial of documents had
been filed within the maximum time
period specified for the purpose under
the law. Accordingly, para 31 as
aforesaid must be taken to apply only
when the written statement is filed
beyond the 120 days period and the
defect of not having filed an affidavit
of admission/denial of documents is
also not cured within the maximum
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30 days period prescribed by law
from the date that the filing objection
is brought to the knowledge of the
party.
15. Upon a conspectus of the
timelines as set-out above and in light
of the provisions of the CPC as
amended by the Commercial Courts,
Commercial Division & Commercial
Appellate Division of High Courts
(Amendment) Act, 2018 read in
conjunction with the Delhi High
Court (Original Side) Rules 2018, as
also the judicial precedents referred to
by the parties, this court is of the view
that written statement having been
filed within the statutory period; and
the defect of non-filing of the
affidavit of admission/denial also
having been cured well within the
permissible time period, nothing
further stands in the way of the
written statement being taken on
record.
16. For clarity, it is reiterated that
what Order V Rule 1(1) and Order
VIII Rule 1 CPC provide is the outer
time-limit for filing of the written
statement of defence. The filling by
the defendant of an affidavit of
admission/denial of the plaintiff's
documents, is a separate requirement
under Chapter VII Rule 3 and 4 of the
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Delhi High Court (Original Side)
Rules, 2018; and the consequence for
not filing such affidavit is that the
written statement shall not be taken
on record and that the plaintiff's
documents shall be deemed to be
admitted by the defendant. However,
the filing of a written statement within
the prescribed time but without an
accompanying affidavit of
admission/denial of documents, does
not amount to non-est filing, since it
cannot be said that nothing was filed
at all. It would, however, amount to a
defect, that is required to be cured
after it is brought to the attention of
the party by the Registry. Chapter VII
Rule 3 only bars taking on record a
written statement that is filed without
an accompanying affidavit of
admission/denial of documents. Filing
of the written statement and it being
taken on record are two separate and
distinct matters.”
xxxxx
(underlining is mine)
6. In view of the above, the application filed by defendant under
Order VIII Rule 1 CPC is allowed, subject, however to payment of cost of
Rs.5,000/- (Rupees Five Thousand Only), to be paid by the defendant to
the plaintiff within two weeks from today.
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7. The pleadings in the matter are complete. Renotify the matter
for framing of issues/case management hearing now on 13.08.2026.
(Vinod Yadav)
District Judge (Commercial Court)-02
North-West/Rohini Courts/19.05.2026
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