Delhi High Court
Atlantech Online Services Pvt Ltd & Anr. vs Google India Pvt Ltd & Anr. on 29 August, 2023
Author: C.Hari Shankar
Bench: C.Hari Shankar
$~37
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ CS(COMM) 647/2021, I.A. 16563/2021, I.A. 16567/2021, I.A.
16615/2022, I.A. 4768/2023 & I.A. 4769/2023
ATLANTECH ONLINE SERVICES PVT LTD & ANR.
..... Plaintiffs
Through: Ms. Radhika Chandrashekhar,
Adv.
versus
GOOGLE INDIA PVT LTD & ANR. ..... Defendants
Through: Mr. Neel Mason, Ms.
Chamanpreet Kaur, Mr. K.Y. Siddharth
Vardhman and Mr. Ankit Rastogi, Advs. for
D-2
CORAM:
HON'BLE MR. JUSTICE C.HARI SHANKAR
JUDGMENT(ORAL)
% 29.08.2023 I.A. 4768/2023 & I.A. 4769/2023 (seeking condonation of delay)
1. By these applications, the plaintiffs seek condonation of delay of 90 days in filing and 97 days in refiling of the replication, in the present suit, by way of response to the written statement filed by Defendant 2.
2. The filing of a replication to a written statement filed in a suit filed on the original side of this Court, is governed by Rule 51 in 1
5. Replication. - The replication, if any, shall be filed within 30 days of receipt of the written statement. If the Court is satisfied that the plaintiff was prevented by sufficient cause for exceptional and unavoidable reasons in filing the replication within 30 days, it may extend the Signature Not Verified Digitally Signed time for filing the same by a further period not exceeding 15 days but not thereafter. For such By:HARIOM Signing Date:05.09.2023 CS(COMM) 647/2021 Page 1 of 7 11:28:34 Chapter VII of the Delhi High Court (Original Side) Rules, 2018 ("the Original Side Rules"). The opening sentences of Rule 5 make it clear and categorical that, even in exceptional and unavoidable cases, the time for filing of a replication may be extended only up to 15 days beyond the original period of 30 days envisaged in that regard. The words "but not thereafter" are imperative in scope. They do not permit of any equivocation whatsoever. The command of the Rule is that the maximum latitude which can be granted to a plaintiff is 15 days beyond the original period of 30 days provided for filing of a replication, and no more.
3. The Rule proceeds to clarify that the extension of up to 15 days, granted for filing of the replication, has to be subjected to costs payable by the plaintiff. Even in this regard, there is no latitude in the rule, though the quantum of costs may be left to the Court. The Rule further proceeds to direct that, if the costs are not paid, the replication would not be taken on record.
4. It is the next sentence in the Rule which sometimes provokes debate. In case no replication is filed even beyond the extended period of 15 days, Rule 5 goes on to postulate that "the Registrar shall forthwith place the matter before the Court for appropriate orders".
5. Before adverting to this part of the Rule, I may note that the extension, the plaintiff shall be burdened with costs, as deemed appropriate. The replication shall not be taken on record, unless such costs have been paid/ deposited. In case no replication is filed within the extended time also, the Registrar shall forthwith place the matter for appropriate orders before the Court. An advance copy of the replication together with legible copies of all documents in possession and power of plaintiff, that it seeks to file along with the replication, shall be served Signature Not Verified Digitally Signed on the defendant and the replication together with the said documents shall not be accepted unless By:HARIOM Signing Date:05.09.2023 CS(COMM) 647/2021 Page 2 of 7 11:28:34 scope and ambit of Rule 5 in Chapter VII of the Original Side Rules, particularly on whether a replication could be filed even beyond the permissible extended period of 15 days envisaged in the rule, is no longer res integra, as a Division Bench of this Court has, through Hima Kohli, J, as she then was, ruled on the point, in Ram Sarup Lugani v. Nirmal Lugani2. It is not necessary to dilate on the said decision, as the conclusion in para 31 is clear and categorical. It reads as under:
"31. In view of the aforesaid discussion, it is held that in case of any inconsistency, the provisions of the Delhi High Court (Original Side) Rules, 2018 will prevail over the Civil Procedure Code. The inherent powers contemplated in Rule 16 are not to be exercised to overcome the period of limitation expressly prescribed in Rule 5 for filing the replication. Nor can Rule 5 be circumvented by invoking any other provision or even the inherent powers of the court, contrary to the scheme of the Rules. The phrase, "but not thereafter" used in Rule 5 makes it crystal clear that the Rule is mandatory in nature and the court cannot permit the replication to be taken on the record after the plaintiff has exhausted the maximum prescribed period of 45 days. Any other interpretation will result in causing violence to the DHC Rules."
6. Ms. Radhika Chandrashekhar, learned Counsel for the plaintiff, has sought to place reliance on the judgment of a learned Single Judge of this Court in Amarendra Dhari Singh v. R.C. Nursery Pvt Ltd3, which took note of the decision of the Division Bench in Ram Sarup Lugani2. She seeks to contend that, perhaps, the rigor of Ram Sarup Lugani2 may have been somewhat tempered by the decision in Amarendra Dhari Singh3. She has placed reliance on para 29 of the said decision. However, it would be appropriate to reproduce paras 28 to 30, thus:
it contains an endorsement of service signed by the defendant/ his Advocate.
2 2020 SCC OnLine Del 1353 Signature Not Verified 3 Digitally Signed 2023 SCC OnLine Del 84 By:HARIOM Signing Date:05.09.2023 CS(COMM) 647/2021 Page 3 of 7 11:28:34
"28. In Ram Sarup Lugani2 (supra), a Division Bench of this Court was considering Rule 5 of Chapter VII of the Rules, which read as under: -
CHAPTER VII
5. Replication.- The replication, if any, shall be filed within 30 days of receipt of the written statement.
If the Court is satisfied that the plaintiff was prevented by sufficient cause for exceptional and unavoidable reasons in filling the replication within 30 days, it may extend the time for filing the same by a further period not exceeding 15 days but not thereafter. For such extension, the plaintiff shall be burdened with costs, as deemed appropriate. The replication shall not be taken on record, unless such costs have been paid/deposited. In case no replication is filed within the extended time also, the Registrar shall forthwith place the matter for appropriate orders before the Court. An advance copy of the replication together with legible copies of all documents in possession and power of plaintiff, that it seeks to file along with the replication, shall be served on the defendant and the replication together with the said documents shall not be accepted unless it contains an endorsement of service signed by the defendant/his Advocate."
29. The Division Bench laying emphasis on the words 'but not thereafter', held that the Court cannot extend the period for filing the replication beyond the outer limit of 45 days as mandated in the Rules, and upon expiry of the said period, the plaintiff's right to file the replication would stand extinguished. However, it must be noticed that unlike Rule 4 of the Rules which states that 'in case, no written statement is filed within the extended time also, the Registrar may pass orders for closing the right to file the written statement', no such discretion was vested in the Registrar or the Court by Rule 5 of the Rules. Rule 5, in fact, mandates the Registrar to forthwith place the matter for appropriate order before the Court. This difference in language used cannot also be said to be without any purpose. The judgment in Ram Sarup Lugani2 (supra), therefore, cannot govern the interpretation to be placed on Rule 4 of the Rules.
30. In Harjyot Singh4 (supra), the learned Single Judge of this Court, placing reliance on Ram Sarup Lugani2 (supra), held that Signature Not Verified 4 Refer Harjyot Singh v. Manpreet Kaur, 2021 SCC OnLine Del 2629 Digitally Signed By:HARIOM Signing Date:05.09.2023 CS(COMM) 647/2021 Page 4 of 7 11:28:34 the Court does not have the power to condone a delay of beyond 90 days in filing of the written statement. However, in holding so, the learned Single Judge did not take notice of the difference between Rule 4 and Rule 5 of the Rules, as has been highlighted hereinabove. It also did not take note of the earlier judgment of the Division Bench of this Court in Esha Gupta5 (supra), which taking note of Rule 4 of the Rules and placing reliance on Desh Raj (supra), condoned the delay in filing of the written statement beyond the period of 120 days of service of summons."
7. Clearly, the learned Single Judge was, in Amarendra Dhari Singh3, dealing with Rule 4 in Chapter VII of the Original Side Rules, not with Rule 5. Rule 4 specifically states that, if no written statement was filed within the extended period available under the said rule, "the Registrar may pass orders for closing the right to file the written statement".
8. Reliance was sought to be placed, by the plaintiffs in Amarendra Dhari Singh3, on the decision in Ram Sarup Lugani2. The learned Single Judge has distinguished the decision in Ram Sarup Lugani2, in paras 29 and 30 of Amarendra Dhari Singh3. It has been held, therein, that, unlike Rule 4 which empowered the Registrar to pass orders for closing the right to filing the written statement, in the event the written statement was not filed within the extended period, no such discretion was available with the Registry or with the Court under Rule 5, which specifically uses the words "but not thereafter". If anything, therefore, Amarendra Dhari Singh3 reinforces Ram Sarup Lugani2, rather than diluting or ruling contrary to the said decision. The learned Single Judge has, thus, distinguishing the decision in Ram Sarup Lugani2, proceeded to hold that the power of Signature Not Verified 5 Digitally Signed Order dated 28.01.2020 in FAO(OS) 2/2020 By:HARIOM Signing Date:05.09.2023 CS(COMM) 647/2021 Page 5 of 7 11:28:34 the Registrar, conferred by Rule 4 in Chapter VII, to pass orders for closing the right to file the written statement, where the written statement is not filed within the extended period, also included, in it, the power, to, in appropriate case, condone the delay and take the written statement on record.
9. We are not concerned in the present case with Rule 4 in Chapter VII, but with Rule 5. The judgment of the Supreme Court in Ram Sarup Lugani2, apropos Rule 5 in Chapter VII of the Original Side Rules, is clear and categorical. It is binding on this Bench.
10. In view of the aforesaid, there can be no question of any condonation of delay in filing replication beyond the period of 15 days envisaged in Rule 5 in Chapter VII of the Original Side Rules.
11. As such, it is not necessary for me to consider the prayer for condonation of further delay in refiling the replication.
12. IA 4768/2023 & IA 4769/2023 are accordingly dismissed.
I.A. 16615/2022 (under Section 124)
13. Ms. Radhika seeks and is granted further and final opportunity of two weeks to file reply to this application with advance copy to learned Counsel for the applicant/Defendant 2, who may file rejoinder thereto, if any, before the next date of hearing.
14. Re-notify for hearing and disposal of this application on 23 Signature Not Verified Digitally Signed By:HARIOM Signing Date:05.09.2023 CS(COMM) 647/2021 Page 6 of 7 11:28:34 November 2023.
I.A. 16567/2021 (under Section 12A of the Commercial Courts Act, 2015)
15. In view of the judgment of the Division Bench of this Court in Chandra Kishore Chaurasia v. R.A. Perfumery Works Pvt Ltd6, exemption is granted from the requirement of pre-institution mediation under Section 12A of the Commercial Courts Act, 2015.
16. The application stands allowed accordingly.
I.A. 16563/2021 (under Order XXXIX Rules 1 and 2 of the CPC)
17. Despite reply in this application having been filed long before, there is no rejoinder.
18. As such, list this application along with IA 16615/2022 for hearing and disposal on 23 November 2023.
C.HARI SHANKAR, J
AUGUST 29, 2023
ar
Signature Not Verified
6
Digitally Signed 2022 SCC OnLine Del 3529
By:HARIOM
Signing Date:05.09.2023
CS(COMM) 647/2021 Page 7 of 7
11:28:34