Delhi High Court
Unilin Beheer B.V. vs Balaji Action Buildwell on 15 May, 2019
Equivalent citations: AIRONLINE 2019 DEL 732
Author: Rajiv Sahai Endlaw
Bench: Rajiv Sahai Endlaw
* IN THE HIGH COURT OF DELHI AT NEW DELHI
15th May, 2019
% Date of decision: 9th April, 2019
+ CS(COMM) 1683/2016 & CC(COMM) 38/2018
UNILIN BEHEER B.V. ..... Plaintiff
Through: Mr. Sudhanshu Batra, Sr. Adv.
with Mr. Pravin Anand, Mr.
Dhruv Anand, Ms. Udita Patro,
Mr. Nischay Mall and Mr.
Aditya Mishra, Advs.
Versus
BALAJI ACTION BUILDWELL ..... Defendant
Through: Mr. C.M. Lall, Sr. Adv. with
Ms. Nancy Roy and Mr. Sanuj
Das, Advs.
CORAM:
HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW
IA No.10200/2018 (of the defendant / Counter Claimant under
Order VII Rules 3,4&10(c) of Delhi High Court (Original Side)
Rules, 2018), IA No.13688/2017 (of the plaintiff under Section 151
CPC), IA No.5229/2019 (of the Plaintiff under Section 148 read
with Section 151 CPC), IA No.5230/2019 (of the plaintiff under
Section 151 CPC) & IA No.13689/2017 (u/O XI R-1,3&5 CPC).
1. The question for consideration is, whether failure of defendant
to file an affidavit of admission and denial of documents filed by
plaintiff along with written statement is to be treated as a situation as
contemplated by Order VIII Rule 10 of the Code of Civil Procedure,
1908 (CPC) or merely results in the documents filed by the plaintiff
being deemed to be admitted by the defendant and the written
statement being otherwise considered.
CS(COMM) No.1683/2016 Page 1 of 19
2. First the facts in which the said question arises.
3. The plaintiff has instituted this suit for permanent injunction
restraining infringement of Patent No.193247 and for ancillary reliefs.
No interim relief was granted to the plaintiff. The validity of the
patent has lapsed since the institution of the suit. Thus, the relief
claimed in this suit, insofar as of permanent injunction, does not
survive and the suit is being pursued only for the relief of damages.
4. The defendant contested the suit. Vide order dated 29th January,
2018, after hearing the counsels liberty was granted to the defendant to
if so desires, file a Counter Claim for revocation of the subject patent,
after withdrawing the proceedings under Section 64 of the Patents Act,
1970 pending before the Intellectual Property Appellate Board (IPAB)
and it was further ordered that if no Counter Claim was made within
30 days, liberty shall cease and the time for filing Counter Claim shall
not be extended. Vide the same order, it was also provided that if
Counter Claim was so filed by the defendant, written statement thereto
by the plaintiff be filed within further 30 days thereafter and
replication thereto if any be filed within yet further 30 days thereof
and the proceedings posted on 2nd August, 2018 for framing of issues
and for consideration of other pending applications.
5. The defendant, after serving an advance copy of the Counter
Claim to the counsel for the plaintiff on 23rd February, 2018 filed the
Counter Claim in this Court on 23rd February, 2018 and re-filed the
same on 30th July, 2018.
CS(COMM) No.1683/2016 Page 2 of 19
6. The plaintiff though is found to have filed the written statement
to the Counter Claim in this Court on 19th April, 2018 but the
acknowledgment of the counsel for the defendant / Counter Claimant
of receipt of the copy of the said written statement is of 2nd May, 2018.
The written statement to the Counter Claim is found to have been re-
filed after 19th April, 2018 on 2nd May, 2018 and thereafter on 10th
October, 2018.
7. The defendant / Counter Claimant filed replication to the
written statement of the plaintiff to the Counter Claim with advance
copy to the counsel for the plaintiff on 31st May, 2018 and re-filed on
2nd June, 2018.
8. The suit, in accordance with the order dated 29th January, 2018
aforesaid was listed on 2nd August, 2018 when IA No.10200/2018 of
the defendant / Counter Claimant under Chapter VIII Rules 3,4&10(c)
of the Delhi High Court (Original Sides) Rules, 2018 read with Order
VIII Rule 10 of the CPC as amended by the Commercial Courts Act,
2015, for (i) taking off the record the written statement filed by the
plaintiff to the Counter Claim; (ii) deeming all documents filed by the
defendant / Counter Claimant along with the Counter Claim as
admitted by the plaintiff; and, (iii) allowing the Counter Claim
forthwith, was also listed and notice thereof was ordered to be issued
and accepted by the counsel for the plaintiff and the proceedings
adjourned to 10th October, 2018.
9. On 10th October, 2018, the suit was simply adjourned to 11th
October, 2018 and on 11th October, 2018, the counsel for the plaintiff
CS(COMM) No.1683/2016 Page 3 of 19
was not available resulting in the proceedings being adjourned to 10 th
January, 2019.
10. The plaintiff, on 7th December, 2018 filed IA No.16868/2018
under Section 151 of the CPC seeking early listing of the suit for
framing of issues and for consideration of all pending applications.
The said application came up before this Court on 10th December,
2018 when upon this Court observing that early hearing was not
possible, it was withdrawn (though still shown in the cause list as
pending). IA No.16868/2018 be removed from cause list.
11. On 10th January, 2019, i) it was observed / recorded that there
was no application of the plaintiff for condonation of delay in filing
the written statement to the Counter Claim and / or for taking the
written statement to the Counter Claim on record; ii) it was the
contention of the senior counsel for the defendant / Counter Claimant
that in terms of Rule 3 of Chapter VII of the Rules supra, the written
statement to the Counter Claim being not accompanied with an
affidavit of admission / denial of documents, could not be taken on
record; iii) per contra, the counsel for the plaintiff drew attention to
Rule 14 of Chapter I of the said Rules empowering the Court to, for
sufficient cause, excuse the parties from compliance with any
requirement of the Rules and it was contended that since Rule 3 of
Chapter VII of the Rules was notified only on 1st March, 2018, the
delay on the part of the plaintiff in complying therewith ought to be
exempted; iv) it was prima facie felt that since Rule 3 of Chapter VII
uses the word „shall‟ and considering the objective of the Commercial
CS(COMM) No.1683/2016 Page 4 of 19
Courts Act, reading „shall‟ as „may‟ would negate the legislative intent
and there would not be any difference left between commercial and
ordinary suits and referring in this regard to Xerox Corporation Vs.
P.K. Khansaheb 2018 SCC OnLine Del 12863, it was observed that
the Rules having expressly provided for filing of affidavit of
admission / denial along with written statement and having further
provided that the written statement shall not be taken on record unless
accompanied by the said affidavit, it appeared that admission / denial
of documents even if contained in the pleadings would not amount to
compliance with the said Rule, the hearing was adjourned to today.
12. The plaintiff has since filed IA No.5229/2019 under Section
148 read with Section 151 CPC for (i) condoning the delay of 131
days in filing the affidavit of admission / denial of defendant / Counter
Claimant‟s documents; ii) dismissal of IA No.10200/2018 of the
defendant; and, iii) taking the written statement to the Counter Claim
on record. The plaintiff has also filed IA No.5230/2019 under Section
151 CPC seeking acceptance of the affidavit of the authorized
representative of the plaintiff which has been executed using the
electronic apostilling process in support of IA No.5229/2019. The
said two applications have come up first before this Court today.
13. It is deemed appropriate to set out herein below the Rules
referred to hereinabove and also referred to in the hearing today.
Rules 3,14 to 16 of Chapter I titled 'General' of the Rules are as
under:
CS(COMM) No.1683/2016 Page 5 of 19
―3. Application. --All proceedings on the original side
of the Court, instituted or transferred pursuant to
provisions of the Delhi High Court Act of 1966, or any
other law shall, unless otherwise ordered by the Court,
be governed by these Rules.
14. Court's power to dispense with compliance with
the Rules.--The Court may, for sufficient cause
shown, excuse parties from compliance with any
requirement of these Rules, and may give such
directions in matters of practice and procedure, as it
may consider just and expedient.
[Provided where the Court / Judge is of the
opinion that Practice Directions are required to be
issued, he may make a suitable reference to the
Hon'ble Chief Justice.]
15. Application for the above purpose.--An
application seeking exemption from compliance with
requirements of any of the Rules shall, in the first
instance, be placed before the Registrar, who may,
without interfering or dispensing with any mandatory
requirements of the Rules, make appropriate order(s)
thereon, or, if in his opinion, it is desirable that the
application be dealt with by the Court, direct that the
same be listed before the Court forthwith.
16. Inherent power of the Court not affected. --
Nothing in these Rules shall be deemed to limit or
otherwise affect the inherent powers of the Court to
make such orders as may be necessary for the ends of
justice or to prevent abuse of the process of Court.‖
14. Rules 3 and 4 of Chapter VII titled 'Appearance by
Defendant, Written Statement, Set Off, Counter Claim &
Replication' of the Rules are as under:
―3. Affidavit of admission/denial of documents
alongwith written statement.--Alongwith the written
statement, defendant shall also file an affidavit of
CS(COMM) No.1683/2016 Page 6 of 19
admission/denial of documents filed by the plaintiff,
without which the written statement shall not be taken
on record. Alongwith the written statement, the
defendant shall be entitled to file applications for
interrogatories for examination of the plaintiff together
with proposed interrogatories; application for
discovery; and application for inspection of such
documents.
[The affidavit referred to in this Rule shall be in
accordance with the provisions of Rule 4 of Order XI of
the Code, as applicable under the Commercial Courts
Act]
4. Extension of time for filing written
statement.--If the Court is satisfied that the defendant
was prevented by sufficient cause for exceptional and
unavoidable reasons in filing the written statement
within 30 days, it may extend the time for filing the
same by a further period not exceeding 90 days, but not
thereafter. For such extension of time, the party in
delay shall be burdened with costs as deemed
appropriate. The written statement shall not be taken
on record unless such costs have been paid/deposited.
In case the defendant fails to file the affidavit of
admission/denial of documents filed by the plaintiff, the
documents filed by the plaintiff shall be deemed to be
admitted. 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.‖
15. The Rules though were notified on 5th January, 2018 came into
force with effect from 1st March, 2018 and Rules 3 and 14 to 16 of
Chapter I, save for a modification in Rule 14, not relevant for the
present purpose and Rules 3 and 4 of Chapter VII are in force from the
said date but the second limb of Rule 3, in square brackets above,
prescribing the form of affidavit of admission / denial of documents
CS(COMM) No.1683/2016 Page 7 of 19
was introduced into the Rules vide notification dated 16th October,
2018 with effect from 1st November, 2018 only.
16. The senior counsel for the plaintiff has argued, that i) though
vide order dated 29th January, 2018 time of 30 days from the date of
filing of the Counter Claim was granted for filing written statement to
Counter Claim but vide subsequent order dated 22nd March, 2018, the
time for filing written statement by the plaintiff to the Counter Claim
of the defendant was extended till 21st April, 2018; ii) the plaintiff
filed the written statement to the Counter Claim on 19th April, 2018
but the same remained under objection; iii) the plaintiff removed the
objections and re-filed the written statement on 2nd May, 2018; iv) the
Registry of this Court, on 3rd May, 2018 raised another objection to
taking the written statement to the Counter Claim on record i.e. of the
written statement being not accompanied with the affidavit of
admission / denial of documents filed by the defendant along with his
Counter Claim; v) the said objection dated 3rd May, 2018 was not
notified to the plaintiff and the plaintiff remained under the belief that
the written statement had been taken on record, specially since the
defendant / Counter Claimant on 31st May, 2018 filed a replication to
the written statement to the Counter Claim; vi) it was only on receipt
of IA No.10200/2018 of the defendant / Counter Claimant on 2nd
August, 2018 before this Court that the counsel for the plaintiff for the
first time realized that the written statement to the Counter Claim had
not been taken on record owing to being not accompanied with the
affidavit of admission / denial of documents; vii) the plaintiff filed the
said affidavit on 12th September, 2018 but the same remained under
CS(COMM) No.1683/2016 Page 8 of 19
objection which were removed on 10th October, 2018 and the written
statement was re-filed along with the affidavit of admission and denial
on that date; viii) Rule 3 of Chapter VII, requiring affidavit of
admission / denial of documents to be filed along with the written
statement was introduced for the first time on 1st March, 2018; ix) a
conjoint reading of Rules 3 and 4 of Chapter VII of the Rules shows
that though affidavit of admission / denial is mandatorily required to
be filed along with written statement but the only consequence of non-
filing thereof is of the documents filed by the Counter Claimant being
deemed to be admitted by the plaintiff; else, there is no objection to
the written statement filed without such affidavit being taken on
record; and, x) since Rule 3 has been introduced recently, a case for
granting exemption from application thereof under Chapter I Rule 14
of the Rules is made out.
17. Per contra, the senior counsel for the defendant has contended
that i) written statement is to be filed within 30 days; admittedly the
written statement was not filed within 30 days; ii) the question of
condoning the delay in filing the written statement does not arise since
no application therefor has been filed; iii) without any application for
condonation of delay and / or for extension of time being filed setting
out reasons therefor, the written statement to the Counter Claim
cannot be taken on record; iv) attention is also drawn to recent dicta in
SCG Contracts India Pvt. Ltd. Vs. K.S. Chamankar Infrastructure
Pvt. Ltd. MANU/SC/0227/2019; v) the power under Rule 14 of
Chapter I cannot be exercised qua a mandatory provision of the Rules;
vi) the Rule providing for time for filing written statement and time
CS(COMM) No.1683/2016 Page 9 of 19
for filing affidavit of admission / denial of documents is a mandatory
provision and no exemption therefrom can be granted, and, vii) the
plaintiff‟s interpretation of Rules 3 and 4 of Chapter VII of the Rules
cannot be accepted because the written statement cannot be taken on
record without being accompanied with an affidavit of admission /
denial of documents.
18. The senior counsel for the plaintiff, in rejoinder has contended
that the defendant / Counterclaimant, by filing a replication to the
written statement to the Counter Claim has implicitly condoned the
delay in filing of the written statement.
19. I will first take up the matter of interpretation of Rules 3 and 4
of Chapter VII of the Rules dehors the facts inasmuch as interpretation
thereof is of general application, likely to arise in several cases.
20. For this purpose, it is deemed appropriate to also set out herein
below the Rules 1,2,7,7A,10 and 11 also of Chapter VII of the Rules
and the same are as under:
―1. In default of appearance by defendant suit to be
posted for hearing.--If on the day fixed for his appearance
in the writ of summons, the defendant does not appear, and
it is proved that summons was duly served, the suit shall
proceed for hearing.
2. Procedure when defendant appears.--If the defendant
appears personally or through an Advocate before or on the
day fixed for his appearance in the writ of summons:--
(i) where the summons is for appearance and for filing
written statement, the written statement shall not be
taken on record, unless filed within 30 days of the
date of such service or within the time provided by
CS(COMM) No.1683/2016 Page 10 of 19
these Rules, the Code or the Commercial Courts Act,
as applicable. An advance copy of the written
statement, together with legible copies of all
documents in possession and power of defendant,
shall be served on plaintiff, and the written statement
together with said documents shall not be accepted by
the Registry, unless it contains an endorsement of
service signed by such party or his Advocate.
[The written statement shall also contain a statement
certifying authenticity of document(s) filed. Where
copy(ies) of document(s) are filed, it shall be
specified in the index as to in whose custody, power
and control are the origin(s) thereof. Service of
summons for the purpose of this Rule shall only be
deemed to be complete after inspection is provided by
the Plaintiff, if such inspection is sought by an
application moved within a period of 7 days from the
receipt of first set of summons.]
(ii) [Any party which seeks to inspect the originals of any
documents shall give a notice for inspection and the
inspection shall be given at a mutually convenient
location within one week of receipt of the notice.]
7. Affidavit of admission / denial of documents, even if
replication not filed. -Irrespective of whether the plaintiff
files the replication or not, the plaintiff shall be bound to file
affidavit of admission / denial of documents filed by the
defendant along with the written statement within the time
permissible for filing replication. In case the plaintiff fails
to file the said affidavit, the documents filed by the
defendant shall be deemed to be admitted. The Court or the
Registrar, as the case be, shall exhibit documents admitted
by the parties.
[The affidavit referred to in this Rule shall be in accordance
with the provisions of Rule 4 of Order XI of the Code, as
applicable under the Commercial Courts Act.]
[7A. Document Schedule.-- After the filing of the
affidavit of admission / denial, before framing of issues,
CS(COMM) No.1683/2016 Page 11 of 19
parties shall jointly prepare a ‗Document Schedule' in the
form provided herein to be presented to the Court.
DOCUMENT SCHEDULE
1 2 3 4 5 6
Particulars of Plaintiff's Defendant Defendant Defendant Court
Documents Admission / No.1's No.2's No.3's Order
Denial Admission / Admission / Admission /
Denial Denial Denial
Plaintiff's
document
Defendant's
document
*Parties are to write ‗Admit'/‗Deny' against each document. In
case, receipt of a document is admitted and contents are denied,
parties may write Admit (Receipt).
The Court would make an endorsement as to the exhibited
documents in last Column of the Schedule. The ‗Document
Schedule', duly containing the Exhibit Nos, if any, shall form
part of the proceedings of the day.
The Court may also direct filing and preparation of a similar
‗Document Schedule' before the stage of final arguments.]
10. Counter-claim by defendant. - (a) A defendant in a suit,
in addition to his right of pleading as set-off under Order VIII,
rule 6 of the Code may set up by way of counter-claim against
the claims of the plaintiff, a right or claim, whether such
counter-claim is founded in damages or otherwise. The
counter-claim shall be numbered separately, in accordance
with categorization and nomenclature, as provided in these
Rules.
(b) Such counter-claim shall have the same effect as a
cross-suit so as to enable the Court to pronounce a final
judgment in the same suit, both on the original claim and on the
counter-claim.
(c) Rules relating to plaints shall apply mutatis
mutandis to Counter Claim. Rules 2 to 8 of this Chapter shall
also apply mutatis mutandis to counter-claim.
CS(COMM) No.1683/2016 Page 12 of 19
11. Counter-claim to be specifically pleaded. - Where any
defendant seeks to rely upon any grounds as supporting the
right of counter-claim, he shall, in his written statement, state
specifically that he does so by way of Counter Claim.
Where a defendant sets up a counter-claim, the Court on
the application of the plaintiff, made in that behalf at any state
of the proceedings, and after hearing the defendant, may make
an order directing that the counter-claim may be proceeded
with in accordance with these Rules.‖
21. It is also deemed appropriate to set out herein below the Rule 4
of Order XI of CPC as applicable to Commercial Courts Act,
prescribing the form of affidavit of admission / denial of documents:
―4. (1) Each party shall submit a statement of admissions or
denials of all documents disclosed and of which inspection has
been completed, within fifteen days of the completion of
inspection or any later date as fixed by the Court.
(2) The statement of admissions and denials shall set out
explicitly, whether such party was admitting or denying:--
(a) correctness of contents of a document;
(b) existence of a document;
(c) execution of a document;
(d) issuance or receipt of a document;
(e) custody of a document.
Explanation.--A statement of admission or denial of the
existence of a document made in accordance with sub-rule
(2)(b) shall include the admission or denial of the contents of a
document.
(3) Each party shall set out reasons for denying a document
under any of the above grounds and bare and unsupported
denials shall not be deemed to be denials of a document and
proof of such documents may then be dispensed with at the
discretion of the Court.
CS(COMM) No.1683/2016 Page 13 of 19
(4) Any party may however submit bare denials for third
party documents of which the party denying does not have any
personal knowledge of, and to which the party denying is not a
party to in any manner whatsoever.
(5) An Affidavit in support of the statement of admissions and
denials shall be filed confirming the correctness of the contents
of the statement.
(6) In the event that the Court holds that any party has
unduly refused to admit a document under any of the above
criteria,- costs (including exemplary costs) for deciding on
admissibility of a document may be imposed by the Court on
such party.
(7) The Court may pass orders with respect to admitted
documents including for waiver of further proof thereon or
rejection of any documents.‖
22. It is not as if the provision in Rule 3 of Chapter VII, of the
written statement being not taken on record unless accompanied with
an affidavit of admission / denial of documents was introduced only
with effect from 1st November, 2018. The said provision in Rule 3 of
Chapter VII existed prior to the notification dated 16th October, 2018
also. However, the form of the affidavit of admission / denial of
documents was provided for the first time with effect from 1st
November, 2018, by prescribing the same to be in accordance with the
provisions of Order XI Rule 4 of the CPC as aforesaid.
23. The core question for consideration is, whether the only
consequence of non-filing of the affidavit of admission / denial of
documents along with the written statement is of the documents filed
by the plaintiff being deemed to be admitted by the defendant OR of
the written statement being not taken on record and the defendant
CS(COMM) No.1683/2016 Page 14 of 19
being in the position of a defendant who has not filed the written
statement.
24. On first blush it appears that there is indeed inconsistency /
contradiction, in Rule 3 on the one hand, providing that written
statement without affidavit of admission / denial shall not be taken on
record and Rule 4 on the other hand, providing that the effect of non-
filing of affidavit of admission / denial shall be of the documents
being deemed to be admitted.
25. I have wondered, whether the two Rules read together have the
effect of providing that on non-filing of affidavit of admission / denial
with written statement, though the written statement has to be read but
the documents of plaintiff deemed to be admitted. However to hold so,
would tantamount to rendering otiose the words "......without which
the written statement shall not be taken on record" in Rule 3 supra and
negate the bar in Rule 3 to taking the written statement on record if
unaccompanied with an affidavit of admission / denial of documents.
26. It is the settled rule of statutory interpretation that interpretation
which renders otiose any part of a statute, should be avoided.
27. On the contrary the effect of holding that in such a situation, the
written statement shall be deemed to have been not filed and the
documents filed by the plaintiff deemed to be admitted, would allow
full play to both Rules, without making any part thereof otiose. On
further consideration, no inconsistency / contradiction is found in the
two Rules. This interpretation is also in consonance with the
legislative intent.
CS(COMM) No.1683/2016 Page 15 of 19
28. Such interpretation is also found to be in consonance with the
spirit behind overhauling of the Delhi High Court (Original Side)
Rules, 1967 and enactment of the 2018 Rules. With the experience of
over fifty years of working of the 1967 Rules, attempt was made in the
2018 Rules to do away with the bottlenecks in the proceedings in the
suits on the Original Side of this Court. One of such bottlenecks was
the stage of admission / denial of documents, at which the suits
remained pending, in large number of cases, for years and thereafter
also not serving any purpose of expediting trial, with vague denials
being made, putting the opposite party to proof of documents at the
cost of consequent delays. Order XII Rule 2A of the CPC, as existed
since amendment thereof of 1976, though provided that a document,
which a party is called upon to admit, if not denied specifically or by
necessary implication or stated to be not not admitted in the pleading
of that party or in reply to notice to admit, shall be deemed to be
admitted but also provided that where a party unreasonably neglected
or refuses to admit a document after service of notice to admit
documents, the Court may direct him to pay costs to the other party by
way of compensation. The same in working, led to, as aforesaid, a
practice of generally denying everything in pleadings, implicitly also
documents and taking advantage of resultant delays in proof of
documents. This resulted in suits, most of evidence wherein was
documentary, also being not decided expeditiously owing to delays in
proof of documents. To eliminate such malady, in the new Rules
provisions aforesaid were incorporated, making affidavit of admission
/ denial of documents mandatory and providing stringent
CS(COMM) No.1683/2016 Page 16 of 19
consequences of non-filing of affidavit of admission / denial of
documents to prevent a party from abusing the process of Courts, to its
own advantage and to the prejudice of opposite parties. The Scheme in
entirety, as set out hereinabove, shows that the same consequences as
for defendant, also follow for plaintiff for non-filing of affidavit of
admission/denial of defendant‟s documents.
29. To, inspite of aforesaid changes in Rules hold, that in such a
situation the written statement shall be read though the documents
filed by the plaintiff deemed to be admitted, has the potential of
resulting in anomalous situation. The senior counsel for the plaintiff
has canvassed that though the plaintiff did not file affidavit of
admission / denial of documents along with the written statement to
the Counter Claim but has in the written statement to the Counter
Claim, dealt with the documents. Holding, that the written statement
containing a denial of documents will be read, would come in the way
of giving full effect to the deemed admission of the documents
provided for in Rule 4, as happens under Order XII Rule 2A supra of
CPC and undo the effect of the new Rules.
30. Under Order VIII Rule 10 of the CPC, upon non-filing of
written statement, the Court has discretion, depending on facts, to
either pronounce judgment forthwith or direct the plaintiff to prove his
claim. Deemed admission by the defendant of the documents of the
plaintiff, under Rule 4 supra, will also result in the Court, where
defendant has not filed affidavit of admission / denial with written
statement, on the basis of admission of documents pass a decree
CS(COMM) No.1683/2016 Page 17 of 19
forthwith rather than relegating the party to proof of his claim based
on documents.
31. I thus hold, that in the event of the written statement being filed
without affidavit of admission / denial of documents, not only shall
the written statement be not taken on record but the documents filed
by the plaintiff shall also be deemed to be admitted and on the basis of
which admission the Court shall be entitled to proceed under Order
VIII Rule 10 of the CPC.
32. It is also deemed appropriate to clarify that what has been held
by the Supreme Court in SCG Contracts India Pvt. Ltd. supra qua
filing of the written statement would equally apply to filing of the
affidavit of admission / denial of documents and time for filing thereof
also cannot be extended beyond the maximum permitted.
33. That brings me to the application of the law aforesaid to the
factual scenario in the present case.
34. In the present suit though the Counter Claim was filed with
advance copy to the counsel for the plaintiff on 23 rd February, 2018, in
accordance with the order dated 29th January, 2018, but the same did
not come on record till 30th July, 2018. For this reason, I am of the
view that the time for filing written statement has to be computed
therefrom and 30 days therefrom within which written statement was
to be filed expired on 30th August, 2018 and the maximum time of 120
days therefrom expired on 30th November, 2018.
35. The written statement to the Counter Claim filed on 19th April,
2018 with copy thereof delivered to the counsel for the defendant /
CS(COMM) No.1683/2016 Page 18 of 19
Counter Claimant on 2nd May, 2018 and re-filed on 10th October, 2018
along with affidavit of admission / denial of documents thus though
was beyond 30 days but within the maximum period of 120 days.
36. I thus allow the written statement to be taken on record subject
to payment of costs of Rs.3 lacs to the counsel for the defendant.
37. The applications are thus disposed of by i) permitting the
supporting affidavit to IA No.5229/2019 to be in electronic
apostilling; and, ii) taking the written statement as well as affidavit of
admission / denial of documents on record.
CS(COMM) 1683/2016 & CC(COMM) 38/2018
38. List for framing of issues, if any, on 13th August, 2019.
RAJIV SAHAI ENDLAW, J.
MAY 15, 2019 APRIL 09, 2019 „gsr‟..
CS(COMM) No.1683/2016 Page 19 of 19