Delhi High Court - Orders
Indya Records And Films Private Limited vs Frankfinn Entertainment Company ... on 16 July, 2024
$~33
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ CS(COMM) 841/2023
INDYA RECORDS AND FILMS PRIVATE LIMITED.....Plaintiff
Through: Mr. Uttam Datt, Mr. Arjun Anand,
Ms. Sonakshi Singh, Mr. Kumar
Bhaskar and Mr. Aman Sanjeev
Sharma, Advs.
versus
FRANKFINN ENTERTAINMENT COMPANY PRIVATE
LIMITED & ORS. .....Defendants
Through: Mr. Kapil Midha and Ms. Samiksha
Gupta, Advs. For D-1
Ms. Neelakshi Bhadauria, Adv. for
D2
Mr. Arjun Natarajan, Mr. Kaustubh
Shakkarwar and Ms. Kamana
Pradhan, Advs. For D-3
Ms. Aishwarya Kane, Adv. For D-4
Ms. Mrinal Ojha, Mr. Debarshi
Dutta and Mr. Arjun Mookerjee,
Advs. For D-5
CORAM:
HON'BLE MR. JUSTICE SAURABH BANERJEE
ORDER
% 16.07.2024 I.A. 11312/2024 - Delay of 15 days in filing replication to written statement of D-1
1. By virtue of the present application, plaintiff seeks condonation of delay of 15 days in filing replication to the written statement of defendant no.1.
This is a digitally signed order.
The authenticity of the order can be re-verified from Delhi High Court Order Portal by scanning the QR code shown above. The Order is downloaded from the DHC Server on 19/07/2024 at 01:07:45
2. As per record, the written statement filed by the defendant no.1 was taken on record by this Court on 21.03.2024 by an order dated 21.03.2024 passed by the Joint Registrar wherein the application (I.A. No. 6716/2024) seeking condonation of delay of 86 days in filing the written statement on behalf of the defendant no.1 was allowed, after recording as under:-
"For the reasons stated in the application, application is allowed subject to cost of Rs.1000/-, to be paid to the plaintiff. Delay stands condoned. Written statement is taken on record. Replication be filed within the period permissible, as worked out from today. Cost however, be paid within two weeks failing which written statement shall be deemed to have been taken off the record."
[Emphasis supplied]
3. Thereafter, the plaintiff filed its replication to the written statement of defendant no.1 on 06.05.2024. Therefore, the present application seeking condonation of delay of 15 days in the said filing by the plaintiff.
4. Learned counsel for the plaintiff contends that the statutory period of 45 days as per Chapter VII Rule 5 of the Delhi High Court (Original Side) Rules, 2018 for filing replication by the plaintiff is to be counted from the next day of passing of the order dated 21.03.2024 by the Joint Registrar, i.e., with effect from 22.03.2024 and further that the filing of a replication by plaintiff was in any event dependent upon depositing of cost of Rs. 1,000/- by the defendant no.1.
5. Learned counsel also contends that though the said period of 45 days came to an end on 05.05.2024, which since was a Sunday, the filing of the replication by the plaintiff on 06.05.2024 was well within the permissible period of 45 days. Learned counsel relying upon Classico Brands (India) Pvt. Ltd. vs. MIS Stella Industries Limited (2022 SCC OnLine Del 2857), wherein a co-ordinate bench allowed an application This is a digitally signed order.
The authenticity of the order can be re-verified from Delhi High Court Order Portal by scanning the QR code shown above. The Order is downloaded from the DHC Server on 19/07/2024 at 01:07:45 under Order VIII Rule 1, CPC as amended by the Commercial Courts Act since the Court was on leave on the last day of limitation, contends that the situation being same, the delay of 15 days is liable to be condoned by this Court.
6. Relying upon the 4 medical prescriptions dated 22.11.2023, 28.11.2023, 10.01.2024 and 15.04.2024 filed alongwith the present application, learned counsel contended that in view of the ill health of the authorized representative of the plaintiff, who is also its Director, the replication could not have been filed before.
7. Learned counsel for the defendant no.1 in response, at the outset, contends that the issue involved herein has already been settled by a Division Bench of this Court in Ram Swarup Lugani & Anr. Vs. Nirmal Lugani & Ors. FAO(OS) 47/2020, relied upon by a co-ordinate bench of this Court in Ashish Bhalla vs. Sunil Gandi CS(OS) 341/2019 in its order dated 11.01.2023, wherein it was held as under:-
21. A conspectus of the decisions referred to above leaves no manner of doubt that where ever the phrase "but not thereafter" has been used in a provision for setting a deadline, the intention of the legislature is to treat the same as a preemptory provision. Thus, if Rule 15 of the DHC Rules mandates filing of a replication within a period of 30 days reckoned from the date of receipt of the written statement, with an additional period of 15 days provided and that too only if the court is satisfied that the plaintiff has been able to demonstrate that it was prevented to do so by sufficient cause or for exceptional and unavoidable reasons, can the time for filing the replication be extended for a further period not exceeding 15 days in any event, with costs imposed on the plaintiff. The critical phrase "but not thereafter" used in Rule 15 must be understood to mean that even the court cannot extend the period for filing the replication beyond the outer limit of 45 days provided in the DHC Rules. Upon expiry of the ‟s right to file the replicatio n would stand said period, the plaintiff extinguished. Any other meaning sought to be bestowed on the above provision, would make the words "but not thereafter", inconsequential.
This is a digitally signed order.
The authenticity of the order can be re-verified from Delhi High Court Order Portal by scanning the QR code shown above. The Order is downloaded from the DHC Server on 19/07/2024 at 01:07:45
22. The next contention of Mr. Mehta that the words "the Registrar shall forthwith place the matter for appropriate orders before the court" used in Rule 5 of the DHC Rules indicates that the court would still have the power to accept a replication filed beyond a period of 45 days, is also untenable. The Supreme Court has emphasized that the answer to the problem as to whether a statutory provision is mandatory or is directory in nature, lies in the intention of the law maker, as expressed in the law itself. The words "replication, if any, shall be filed within 30 days of the receipt of the written statement"
and further, the words "further period not exceeding 15 days, but not thereafter" used in Rule 5 will lose its entire meaning if we accept the submission made on behalf of the appellants that even if the timeline for filing the replication cannot be extended by the Registrar, there is no such embargo placed on the court.
23. The court must start with the assumption that every word used in a statute, has been well thought out and inserted with a specific purpose and ordinarily, the court must not deviate from what is expressly stated therein. The period granted for filing the replication under Rule 15 of the DHC Rules is only 30 days and on expiry of 30 days, the court can only condone a delay which does not exceed 15 days over and above 30 days and that too on the condition that the plaintiff is able to offer adequate and sufficient reasons explaining as to why the replication could not be filed within 30 days. As observed earlier, since the terms „Court ‟ and „Registrar‟ have been defined in the DHC Rules, Rule 5 requires that the court alone can extend the time to file the replication beyond the period of 30 days from the date of receipt of the written statement. Even the discretion vested in the court for granting extension of time is hedged with conditions and the outer limit prescribed is 15 days. If the replication is not filed within the extended time granted, the Registrar is required to place the matter back before the court for closing the right of the plaintiff to file the replication.
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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 This is a digitally signed order.
The authenticity of the order can be re-verified from Delhi High Court Order Portal by scanning the QR code shown above. The Order is downloaded from the DHC Server on 19/07/2024 at 01:07:45 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.
8. Thence, drawing the attention of this Court to the aforementioned 4 medical prescriptions, learned counsel for the defendant no.1 contends that 3 of such medical prescriptions dated 22.11.2023, 28.11.2023 and 10.01.2024 cannot be considered for adjudication of the present application since they pertain to a period prior to filing of the written statement by the defendant no.1.
9. While adjudicating the present application, this Court cannot lose the sight of the facts that, admittedly, by virtue of the order dated 21.03.2024 passed by the Joint Registrar, not only was the written statement of defendant no.1 taken on record subject to its depositing a cost of Rs. 1,000/- within a period of two weeks but also that the plaintiff was directed to file its replication thereto within the permissible period from the date of said order.
10. Therefore, filing of the replication by the plaintiff was mandatory and not dependent upon deposition of cost by the defendant no.1 as sought to be contended by the learned counsel for plaintiff. Similarly, in the wake of the categoric order dated 21.03.2024 passed by the Joint Registrar wherein the permissible period was to be counted from that day itself, the period of limitation was/ is to be calculated with effect from the said date of passing of the order, i.e., 21.03.2024 itself and not 22.03.2024 sought to be once again contended by the learned counsel for plaintiff.
11. Meaning thereby, the plaintiff was to file its replication on or before This is a digitally signed order.
The authenticity of the order can be re-verified from Delhi High Court Order Portal by scanning the QR code shown above. The Order is downloaded from the DHC Server on 19/07/2024 at 01:07:45 04.05.2024, whereas, admittedly it was filed thereafter only on 06.05.2024, i.e., after the expiry of statutory period of 45 days as per the Delhi High Court (Original Side) Rules, 2018. In view thereof, reliance placed by the learned counsel for plaintiff upon Classico Brands (India) Pvt. Ltd.(supra) is misconceived.
12. Lastly, since 3 of the 4 medical prescriptions entail hereinabove are for a period prior to filing of the written statement by the defendant no.1, they being unrelated to the cause agitated by the plaintiff are nowhere involved. In any event, learned counsel for the plaintiff did not advance any argument qua the only medical prescription dated 15.04.2024, which was subsequent in point of time.
13. Accordingly, given the mandatory provision as contained in the Delhi High Court (Original Side) Rules Act, 2018 as also the pronouncement by the Division Bench of this Court and a subsequent order passed by the co-ordinate Bench of this Court coupled with the factual position involved, the present application is dismissed. I.A. 23289/2024 - (under Order XXXIX, Rule 1 & 2, CPC)
14. List on 21.08.2024.
CS(COMM) 841/2023
15. In view thereof, the replication filed by the plaintiff to written statement of the defendant no.1, is taken off the record.
16. List for completion of pleadings before Joint Registrar on 21.08.2024.
SAURABH BANERJEE, J JULY 16, 2024/rr This is a digitally signed order.
The authenticity of the order can be re-verified from Delhi High Court Order Portal by scanning the QR code shown above. The Order is downloaded from the DHC Server on 19/07/2024 at 01:07:46