Delhi High Court
Relaxo Footwears Limited vs Xs Brands Consultancy Private Limited & ... on 1 August, 2022
Author: Jyoti Singh
Bench: Jyoti Singh
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* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Date of Decision: 01 August, 2022
+ CS(COMM) 917/2018
RELAXO FOOTWEARS LIMITED ..... Plaintiff
Through: Mr. Saif Khan and Mr. Shobhit
Agrawal, Advocates.
versus
XS BRANDS CONSULTANCY PRIVATE LIMITED
& ORS. ..... Defendants
Through: Mr. Chander M. Lall, Senior
Advocate with Mr. Ankur Sangal, Ms. Pragya
Mishra and Mr. Raghu Vinayak Sinha, Advocates.
CORAM:
HON'BLE MS. JUSTICE JYOTI SINGH
JUDGEMENT
JYOTI SINGH, J.
I.A. 10985/2022 (for condonation of delay in filing amended written statement, by Defendants No. 1 and 3)
1. Present application has been preferred on behalf of Defendants No. 1 and 3 (hereinafter referred to as the 'Defendants') seeking condonation of delay of 71 days in filing the amended written statement.
2. Present suit has been filed by the Plaintiff seeking a decree of permanent injunction restraining the Defendants from infringement of trademark and copyright, passing off, delivery up, damages, etc.
3. On 16.10.2019, Plaintiff moved an application under Order VI Rule 17 CPC being I.A. 14710/2019 for amending the plaint, which was allowed vide order dated 28.11.2019. Amended plaint was filed on 05.12.2019. It is an undisputed position between the parties that the 30 days period for filing the written statement commences from this date.
CS(COMM) 917/2018 Page 1 of 22 Signature Not Verified Digitally Signed By:KAMAL KUMAR Signing Date:05.08.2022 16:51:304. It is averred in the application that despite best efforts, Defendants could not finalise and file the written statement within the limitation period of 30 days ending on 04.01.2020, on account of time consumed in co- ordinating between different entities of the Defendants, involved in the matter. Soon thereafter there was an outbreak of pandemic COVID-19, leading to imposition of a lock-down across the country and the extraordinary and unprecedented circumstances adversely effected the functioning of the offices of the Defendants as well as the Courts. Therefore, the written statement could not be filed within the extended period available under Proviso to Order VIII Rule 1 CPC, which provides that at the discretion of the Court and subject to such terms that the Court may impose, Defendant can be permitted to file the written statement beyond the period of 30 days, albeit not later than 120 days from the date of service of summons.
5. Learned Senior Counsel appearing on behalf of the Defendants contends that:-
a. In the peculiar circumstances that had arisen on account of pandemic COVID-19, which were beyond the control of the Defendants and in view of the orders passed by the Supreme Court from time to time, initially suspending and subsequently excluding all limitation periods, whether condonable or not, both under the General Law as well as Special Laws, the delay in filing the written statement be condoned and the same be taken on record.
b. A holistic reading of the orders dated 23.03.2020, 08.03.2021, 27.04.2021, 23.09.2021 and 10.01.2022, passed by the Supreme CS(COMM) 917/2018 Page 2 of 22 Signature Not Verified Digitally Signed By:KAMAL KUMAR Signing Date:05.08.2022 16:51:30 Court in In Re: Cognizance For Extension of Limitation, Suo Motu Writ Petition (Civil) No. 3/2020, shows that the period between 15.03.2020 and 28.02.2022 has been excluded for the purpose of computing the limitation period under various Statutes, including the Commercial Courts Act, 2015, a Statue under the Special Law. The Supreme Court had initially vide order dated 23.03.2020 extended limitation from 15.03.2020 until further orders, followed by orders from time to time, excluding certain periods for the purpose of computing limitation and finally vide order dated 10.01.2022, the entire period between 15.03.2020 and 28.02.2022 has been excluded and limitation has been extended for 90 days commencing from 01.03.2022.
c. Amended written statement was filed on 19.10.2020, which was within 101 days of filing the amended plaint, since the period from 15.03.2020 till 14.03.2021 was excluded by the Supreme Court vide order dated 08.03.2021 and subsequently M.A. No. 665/2021 was disposed of on 23.09.2021, directing that in computing the period of limitation for any suit, appeal, application or proceeding, the period from 15.03.2020 till 02.10.2021 shall stand excluded. Therefore, there is only a delay of 71 days, which is within the period of 120 days, the outer limit within which the delay is condonable at the discretion of the Court on a sufficient cause being shown. d. As an alternate submission, in the present case, Defendants have filed the written statement on 19.10.2020 and the present CS(COMM) 917/2018 Page 3 of 22 Signature Not Verified Digitally Signed By:KAMAL KUMAR Signing Date:05.08.2022 16:51:30 application seeking condonation of delay was filed on 30.05.2022. The period of limitation, including the condonable period by virtue of order dated 10.01.2022, i.e. 90 days, expired on 30.05.2022 and thus the Defendants are entitled to condonation of delay.
e. The Supreme Court in the case of Prakash Corporates v. Dee Vee Projects Limited, (2022) 5 SCC 112, relying on the orders passed in SMWP No. 3/2022 and observing that special and extraordinary measures were provided by the Supreme Court in the said case for advancing the cause of justice in the wake of challenges thrown by the pandemic, observed that applicability of these orders cannot be denied for computing the limitation period and condonation of delay in relation to filing written statements. In Prakash Corporates (supra), summons were served on the Defendant/Appellant on 06.01.2021. The written statement was not filed within 30 days or even within the 120 days from the date of service of summons, i.e. by 06.05.2021. The Supreme Court, in view of the orders passed in SMWP No. 3/2022 held that the time limit for filing the written statement by the Appellant did not come to an end on 06.05.2021. f. In SLP(C) No. 2522/2022 titled as Babasaheb Raosaheb Kobarne & Anr. v. Pyrotek India Private Limited & Ors., also the Supreme Court permitted the written statement filed by the Defendants therein to be taken on record based on the orders passed by the Supreme Court in SMWP No. 3 of 2022, more particularly 10.01.2022, whereby for the purpose of limitation, CS(COMM) 917/2018 Page 4 of 22 Signature Not Verified Digitally Signed By:KAMAL KUMAR Signing Date:05.08.2022 16:51:30 the period from 15.03.2020 till 28.02.2022 was excluded. In the said case, Defendants received summons on 10.01.2020 and it was imperative to file the written statement within 30 days. On 14.01.2020, on appearance, Defendants sought and were granted time to file written statement on or before 11.02.2020. Time was further extended till 11.03.2020, on an application filed by the Defendants and finally, another extension was given upto 24.03.2020. Be it noted that the period of 120 days prescribed under law expired on 09.05.2020 but the written statement was still not filed. On 02.07.2020, an application was filed seeking permission to bring the written statement on record, which was rejected by the learned District Judge (Commercial Division) and the order was upheld by the Bombay High Court relying on the judgment of the Supreme Court in Sagufa Ahmed and Others v. Upper Assam Polywood Products Private Limited and Others, (2021) 2 SCC 317. The Supreme Court, however, condoned the delay relying on the orders passed in SMWP No. 3 of 2022, setting-aside the orders of the Bombay High Court and the District Judge.
6. Learned counsel appearing on behalf of Plaintiff per contra opposes condonation of delay in filing the amended written statement and contends that:-
a) The 30 days period for filing the written statement expired on 04.01.2020. Plain and conjoint reading of orders passed by the Supreme Court on 23.03.2020, 08.03.2021, 27.04.2021, 23.09.2021 and 10.01.2022, shows that the initial extension and CS(COMM) 917/2018 Page 5 of 22 Signature Not Verified Digitally Signed By:KAMAL KUMAR Signing Date:05.08.2022 16:51:30 the subsequent exclusion/extensions of the limitation periods under all laws including General and Special, was only in cases where the limitation expired on or after 15.03.2020 and not on any date prior thereto since the avowed purpose was to obviate the challenges and difficulties that the counsels and litigants were facing due to pandemic Covid-19 in approaching the Courts and other Forums for filing petitions, appeals, applications etc.
b) Even assuming that the condonable period upto 120 days expired post 15.03.2020 and Defendants were entitled to the benefit of exclusion of the limitation period, no application seeking condonation of delay was filed till 30.05.2022, the last day upto which the Supreme Court had extended the limitation vide order dated 10.01.2022. The present application for condonation of delay was filed on 16.07.2022, which is beyond 90 days from 01.03.2022, the commencement date of the extended period of limitation prescribed in the order dated 10.01.2022.
c) In CM(M) 554/2020 titled as North Delhi Municipal Corporation v. Rajeev Sehgal, a Co-ordinate Bench of this Court, relying on the judgment of the Supreme Court in Sagufa Ahmed (supra) observed that what was extended by the Supreme Court in SMWP No.3 of 2020 was the period of limitation and not the condonable period. In CM(M) 346/2020 titled as OK Play India Pvt. Ltd. v. M/s AP Distributors, this Court has reaffirmed that in case of delay in filing of the written CS(COMM) 917/2018 Page 6 of 22 Signature Not Verified Digitally Signed By:KAMAL KUMAR Signing Date:05.08.2022 16:51:30 statement beyond the prescribed period of 30 days, an application seeking leave and condonation of delay is mandatory and must be filed within the upper limit of 120 days. If the application is filed beyond 120 days, the mere filing of the written statement within 120 days would not be sufficient.
d) In Babasaheb Raosaheb Kobarne (supra), relied upon by the Defendants, the facts were wholly different and the judgment cannot come to the aid of the Defendants. In the said case, the Trial Court had itself extended the time for filing written statement from time to time in finally upto 24.03.2020 while in the present case, no extension was sought or granted once the initial period of 30 days expired on 04.01.2020.
7. I have heard learned counsel for the Plaintiff and learned Senior counsel for the Defendants and examined their rival contentions.
8. At the outset, it is pertinent to note that facts to the extent relevant for the present application, as aforementioned, were not disputed by the parties during the hearing of the application, save and except, the date of filing of the present application seeking condonation of delay. It is, therefore, necessary to capture at this stage that while the stand of the Defendants was that the present application was filed on 30.05.2022, i.e., the 90th day of the extended limitation period, by virtue of order dated 10.01.2022 in SMWP No.3 of 2020, it was urged on behalf of Plaintiff that the application was filed on 16.07.2022, i.e. after the expiry of the said 90 days.
9. In order to resolve the controversy, during the hearing of the application and with the consent of the parties, this Court had called for the CS(COMM) 917/2018 Page 7 of 22 Signature Not Verified Digitally Signed By:KAMAL KUMAR Signing Date:05.08.2022 16:51:30 details of the filing of the application from the Registry. From a perusal of the data furnished by the Registry, it was clear that the application was filed on 30.05.2022. Learned counsel for the Plaintiff, after perusing the same, fairly and candidly agreed that the application was filed on 30.05.2022 and did not press the objection of delayed filing of the present application.
10. In view of the aforesaid, the judgment relied upon by the Plaintiff in OK Play India (supra) is not applicable and relevant to the present case. The controversy is, therefore, in a narrow compass viz. whether the Defendants are entitled to condonation of delay in filing the amended written statement, beyond the limitation period of 30 days, in light of the various orders passed by the Supreme Court, excluding the limitation period from time to time and finally extending the same across all laws, General and Special, from 01.03.2022 to 30.05.2022. I may pen down here that this issue would have to be examined keeping in mind the background fact that the 30 days period expired on 04.01.2020, i.e., prior to 15.03.2020, the commencement date in the orders of the Supreme Court, however, the outer limit of 120 days expired on 04.04.2020, i.e., post 15.03.2020. This is necessitated on account of the fact that the Plaintiff has predicated its case on the expiry of 30 days limitation period prior to 15.03.2020 and this singular factor, according to the Plaintiff is sufficient to oust the Defendants' case from the applicability of the orders passed in SMWP No.3 of 2020.
11. There is no dispute that under the Commercial Courts Act, 2015, the provisions applicable with respect to the time period within which the written statement is required to be filed, are Order V Rule 1(1) and Order CS(COMM) 917/2018 Page 8 of 22 Signature Not Verified Digitally Signed By:KAMAL KUMAR Signing Date:05.08.2022 16:51:30 VIII Rules 1 and 10 CPC. Relevant provisions are extracted hereunder for ready reference :-
ORDER V RULE 1 "1. Summons.--(1) When a suit has been duly instituted, a summons may be issued to the defendant to appear and answer the claim and to file the written statement of his defence, if any, within thirty days from the date of service of summons on that defendant:
Provided that no such summons shall be issued when a defendant has appeared at the presentation of plaint and admitted the plaintiff's claim:
Provided further that where the defendant fails to file the written statement within the said period of thirty days, he shall be allowed to file the written statement on such other day, as may be specified by the Court, for reasons to be recorded in writing and on payment of such costs as the Court deems fit, but which shall not be later than one hundred twenty days from the date of service of summons and on expiry of one hundred twenty 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." ORDER VIII RULE 1 "1. Written Statement.--The Defendant shall, within thirty days from the date of service of summons on him, present a written statement of his defence:
Provided that where the defendant fails to file the written statement within the said period of thirty days, he shall be allowed to file the written statement on such other day, as may be specified by the Court, for reasons to be recorded in writing and on payment of such costs as the Court deems fit, but which shall not be later than one hundred twenty days from the date of service of summons and on expiry of one hundred twenty days from the date of service of summons, the defendant shall forfeit CS(COMM) 917/2018 Page 9 of 22 Signature Not Verified Digitally Signed By:KAMAL KUMAR Signing Date:05.08.2022 16:51:30 the right to file the written statement and the Court shall not allow the written statement to be taken on record." ORDER VIII RULE 10 "10. Procedure when party fails to present written statement called for by Court.--Where any party from whom a written statement is required under rule 1 or rule 9 fails to present the same within the time permitted or fixed by the Court, as the case may be, the Court shall pronounce judgment against him, or make such order in relation to the suit as it thinks fit and on the pronouncement of such judgment a decree shall be drawn up.
Provided that no Court shall make an order to extend the time provided under rule 1 of this Order for filing of the written statement."
12. It is equally undisputed that the outbreak of Covid-19 pandemic had engulfed the entire world and created a most extraordinary and unprecedented environment, something which was unforeseen and unpredictable. The pandemic and the resultant lockdown impacted normal functioning in several institutions including the functioning of the Courts/ Tribunals/Quasi-judicial Forums etc. Taking cognizance of the challenges faced by the humanity and the difficulties faced by the litigants across the country in filing suits, petitions, appeals etc., the Supreme Court took suo moto cognizance and passed an order on 23.03.2020 in SMWP No.3 of 2020, whereby the period of limitation in all proceedings in respective Courts/Tribunals across the country, irrespective of the limitation prescribed under the General Law or Special Laws, whether condonable or not, was extended with effect from 15.03.2020 until further orders, invoking the plenary powers under Article 142 read with Article 141 of the Constitution of India.
CS(COMM) 917/2018 Page 10 of 22 Signature Not Verified Digitally Signed By:KAMAL KUMAR Signing Date:05.08.2022 16:51:3013. The said petition was disposed of vide order dated 08.03.2021, however, chartering a future course of action, particularly, with respect to the period between 15.03.2020 to 14.03.2021. Relevant part of the order is as under:-
"2. .....
1. In computing the period of limitation for any suit, appeal, application or proceeding, the period from 15.03.2020 till
14.03.2021 shall stand excluded. Consequently, the balance period of limitation remaining as on 15.03.2020, if any, shall become available with effect from 15.03.2021.
2. In cases where the limitation would have expired during the period between 15.03.2020 till 14.03.2021, notwithstanding the actual balance period of limitation remaining, all persons shall have a limitation period of 90 days from 15.03.2021. In the event the actual balance period of limitation remaining, with effect from 15.03.2021, is greater than 90 days, that longer period shall apply."
14. At a time when people began to believe that there was near normalcy, unfortunately, there was a huge surge in the number of COVID-19 cases leading to "Second Wave of COVID-19'. In these circumstances, MA No.665 of 2021 was filed seeking restoration of the order dated 23.03.2020. On 27.04.2021, the Supreme Court looking at the extraordinary circumstances, in order to minimise the hardships of the litigants, restored the order dated 23.03.2020 and extended the period(s) of limitation till further orders, as under:-
"......We, therefore, restore the order dated 23rd March, 2020 and in continuation of the order dated 8th March, 2021 direct that the period(s) of limitation, as prescribed under any general or special laws in respect of all judicial or quasi-judicial CS(COMM) 917/2018 Page 11 of 22 Signature Not Verified Digitally Signed By:KAMAL KUMAR Signing Date:05.08.2022 16:51:30 proceedings, whether condonable or not, shall stand extended till further orders...."
15. Vide order dated 23.09.2021, Supreme Court disposed of M.A. No. 665 of 2021 with the following directions:-
"8. Therefore, we dispose of the M.A. No.665 of 2021 with the following directions: -
I. In computing the period of limitation for any suit, appeal, application or proceeding, the period from 15.03.2020 till 02.10.2021 shall stand excluded. Consequently, the balance period of limitation remaining as on 15.03.2021, if any, shall become available with effect from 03.10.2021.
II. In cases where the limitation would have expired during the period between 15.03.2020 till 02.10.2021, notwithstanding the actual balance period of limitation remaining, all persons shall have a limitation period of 90 days from 03.10.2021. In the event the actual balance period of limitation remaining, with effect from 03.10.2021, is greater than 90 days, that longer period shall apply."
16. In the wake of the spread of a new variant of Covid-19 and yet another surge in the number of cases across the country, M.A. No.21 of 2022 was filed before the Supreme Court, which was disposed of vide order dated 10.01.2022, with the following directions:-
"I. The order dated 23.03.2020 is restored and in continuation of the subsequent orders dated 08.03.2021, 27.04.2021 and 23.09.2021, it is directed that the period from 15.03.2020 till 28.02.2022 shall stand excluded for the purposes of limitation as may be prescribed under any general or special laws in respect of all judicial or quasi-judicial proceedings. II. Consequently, the balance period of limitation remaining as on 03.10.2021, if any, shall become available with effect from 01.03.2022.CS(COMM) 917/2018 Page 12 of 22 Signature Not Verified Digitally Signed By:KAMAL KUMAR Signing Date:05.08.2022 16:51:30
III. In cases where the limitation would have expired during the period between 15.03.2020 till 28.02.2022, notwithstanding the actual balance period of limitation remaining, all persons shall have a limitation period of 90 days from 01.03.2022. In the event the actual balance period of limitation remaining, with effect from 01.03.2022 is greater than 90 days, that longer period shall apply."
17. From a conspectus and conjoint reading of the aforesaid orders passed by the Supreme Court from time to time in SMWP No.3 of 2020, it is palpably clear that vide order dated 10.01.2022, Supreme Court has in cases where limitation expired during the period between 15.03.2020 to 28.02.2022, notwithstanding the actual balance period of remaining limitation, extended the limitation period by 90 days from 01.03.2022. It was further held that in the event, the actual balance period of limitation remaining with effect from 01.03.2022 is greater than 90 days, the longer period shall apply. Therefore, by virtue of these directions and subject to the riders therein, an extended period of 90 days limitation was provided commencing from 01.03.2022.
18. Applying the aforesaid orders in the present case and tested on their anvil, it needs to be examined if the case of the Defendants falls under the four corners of these orders so as to be entitled to the benefit of extended period of limitation. From the factual narrative, it is clear that the initial period of 30 days of limitation expired on 04.01.2020 i.e. before 15.03.2020. However, the condonable period of 90 days under the Proviso to Order VIII Rule 1 CPC expired post 15.03.2020 i.e. on 04.04.2020.
19. Provisions of Order VIII Rule 1 lay down a period of 30 days within which a written statement is required to be filed. However, a further period CS(COMM) 917/2018 Page 13 of 22 Signature Not Verified Digitally Signed By:KAMAL KUMAR Signing Date:05.08.2022 16:51:30 of 90 days has been provided within which the Court has the discretion to permit the written statement, subject, however, to reasons to be recorded in writing and payment of cost or any other condition that the Court may impose. Therefore, the coded law itself permits filing of the written statement beyond 30 days but within an outer limit of 120 days, with application for condonation of delay. In my view, when in the unprecedent and extraordinary circumstances, the Supreme Court excluded and extended the periods of limitation under the General law or Special laws, the same would apply to the condonable period provided under Order VIII Rule 1, wherever the same expired post 15.03.2020. Accepting the contention of the Plaintiff would lead to a result where the hardships of the litigants arising due to pandemic would be mitigated, if the initial limitation period had not expired but in cases where the benefit of condonable period was available but could not be availed of, due to normal functioning of the Courts being adversely impacted, there is no respite. This Court is unable to find any such categorization/distinction in the orders of the Supreme Court, which were essentially passed to mitigate the hardships of the litigants and enable them to tide over an unprecedented situation in respect of filing of cases, as limitation periods were expiring, without having to explain the delay in each and every case on account of individual circumstances. Learned counsel for the Plaintiff could hardly dispute that had the pandemic not intervened, Defendants had an extended period to file the written statement uptil 04.04.2020, subject of course to seeking condonation of delay and the same being granted by the Court, on sufficient cause being shown. Therefore, once the period between 15.03.2020 to 28.02.2022 has been excluded by the Supreme Court and limitation has been extended for 90 days from CS(COMM) 917/2018 Page 14 of 22 Signature Not Verified Digitally Signed By:KAMAL KUMAR Signing Date:05.08.2022 16:51:30 01.03.2022, the condonable period should also be construed to be extended. Present application has been filed on the 90 th day and thus requires consideration on merits to see if 'sufficient cause' is made out.
20. In this context, I may allude to the judgment of the Supreme Court in Prakash Corporates (supra), relevant paras of which are as under:-
"27.....
27.7. We are not elaborating on other directions issued by this Court but, when read as a whole, it is but clear that the anxiety of this Court had been to obviate the hardships likely to be suffered by the litigants during the onslaughts of this pandemic. Hence, the legal effect and coverage of the orders passed by this Court in SMWP No. 3 of 2020 cannot be unnecessarily narrowed and rather, having regard to their purpose and object, full effect is required to be given to such orders and directions.
28.....
28.1. Having regard to the purpose for which this Court had exercised the plenary powers under Article 142 of the Constitution of India and issued necessary orders from time to time in SMWP No. 3 of 2020, we are clearly of the view that the period envisaged finally in the order dated 23-9-2021 is required to be excluded in computing the period of limitation even for filing the written statement and even in cases where the delay is otherwise not condonable. It gets perforce reiterated that the orders in SMWP No. 3 of 2020 were of extraordinary measures in extraordinary circumstances and their operation cannot be curtailed with reference to the ordinary operation of law.
28.2. In other words, the orders passed by this Court on 23-3-2020, 6-5-2020, 10-7-2020, 27-4-2021 and 23-9-2021 in SMWP No. 3 of 2020 leave nothing to doubt that special and extraordinary measures were provided by this Court for advancing the cause of justice in the wake of challenges thrown CS(COMM) 917/2018 Page 15 of 22 Signature Not Verified Digitally Signed By:KAMAL KUMAR Signing Date:05.08.2022 16:51:30 by the pandemic; and their applicability cannot be denied in relation to the period prescribed for filing the written statement. It would be unrealistic and illogical to assume that while this Court has provided for exclusion of period for institution of the suit and therefore, a suit otherwise filed beyond limitation (if the limitation had expired between 15-3-2020 to 2-10-2021) could still be filed within 90 days from 3-10-2021 but the period for filing written statement, if expired during that period, has to operate against the defendant.
28.3. Therefore, in view of the orders passed by this Court in SMWP No. 3 of 2020, we have no hesitation in holding that the time-limit for filing the written statement by the appellant in the subject suit did not come to an end on 6-5-2021.
29. It is also noteworthy that even before the scope of the orders passed in SMWP No. 3 of 2020 came to be further elaborated and specified in the orders dated 8-3-2021 and 23-9-2021, this Court dealt with an akin scenario in SS Group, decided on 17-12-2020. In that case, in terms of Section 38(2)(a) of the Consumer Protection Act, 2019, 30 days' time provided for filing the written statement expired on 12-8-2020 and the extendable period of 15 days also expired on 27-8-2020. Admittedly, the written statement was filed on 31-8-2020, which was beyond the permissible period of 45 days. The Constitution Bench of this Court has held in New India Assurance Co. Ltd. v. Hilli Multipurpose Cold Storage (P) Ltd. that the Consumer Court has no power to extend the time for filing response to the complaint beyond 45 days. After taking note of the applicable provisions of law as also the mandate of the Constitution Bench, this Court referred to the orders until then passed in SMWP No. 3 of 2020 and held that the limitation for filing written statement would be deemed to have been extended.
30. This Court, inter alia, observed and held as follows: (SS Group case, SCC paras 10-11) "10. In the present matter, it is an admitted fact that the period of limitation of 30 days to file the written CS(COMM) 917/2018 Page 16 of 22 Signature Not Verified Digitally Signed By:KAMAL KUMAR Signing Date:05.08.2022 16:51:30 statement had expired on 12-8-2020 and the extended period of 15 days expired on 27-8-2020. This period expired when the order dated 23-3-2020 passed by this Court in Cognizance for Extension of Limitation, In re [Cognizance for Extension of Limitation, In re, (2020) 19 SCC 10 : (2021) 3 SCC (Cri) 801] was continuing.
11. In view of the aforesaid, in our opinion, the limitation for filing the written statement in the present proceedings before the National Commission would be deemed to have been extended as it is clear from the order dated 23-3-2020 [Cognizance for Extension of Limitation, In re, (2020) 19 SCC 10 : (2021) 3 SCC (Cri) 801] that the extended period of limitation was applicable to all petitions/applications/suits/appeals and all other proceedings. As such, the delay of four days in filing the written statements in the pending proceedings before the National Commission deserves to be allowed, and is accordingly allowed."
21. Relevant would it be to note that in the said case, written statement was not filed within 30 days from the date of service of the summons on 06.01.2021 or even upto 06.05.2021 which was the 120th day from the date of service of summons. The Supreme Court taking note of the special and extraordinary circumstances arising out of the pandemic and the orders passed in SMWP No. 3/2022 clearly held that the time limit for filing the written statement did not come to an end on 06.05.2021. Reading of the judgment, no doubt, reveals that in the said case, after the initial 30 days period had expired, the Trial Court had extended the time on two occasions on 24.02.2021 and 15.03.2021 for filing the written statement, however, to my mind, this does not take away the applicability of the said judgment to the present case. It is significant to note that the Supreme Court took note of the earlier decision of the three-Judge Bench of the Supreme Court in CS(COMM) 917/2018 Page 17 of 22 Signature Not Verified Digitally Signed By:KAMAL KUMAR Signing Date:05.08.2022 16:51:30 Sagufa Ahmed (supra) and observed that the said decision was rendered much before the orders dated 08.03.2021 and 27.09.2021 in SMWP No.3 of 2020, whereby the Supreme Court extended the period of limitation and also excluded a certain period for computing limitation. The Supreme Court also noted the distinction of the said case where the extendable period was upto 18.03.2020 while the lockdown was imposed only on 24.03.2020 and thus, there was no impediment in filing the appeal on or before 18.03.2020. Whereas, in Prakash Corporates (supra), the prescribed extendable time for filing the written statement expired on 06.05.2021. Therefore, it is not open for Plaintiff to contend that despite availability of extendable period, which expired beyond 15.03.2020, i.e. 04.04.2020, Defendants cannot avail the benefit of the extended limitation period and seek condonation of delay. Relevant passages from the judgment in Prakash Corporates (supra) are as under:-
"28.3. Therefore, in view of the orders passed by this Court in SMWP No. 3 of 2020, we have no hesitation in holding that the time-limit for filing the written statement by the appellant in the subject suit did not come to an end on 6-5-2021.
xxx xxx xxx
33. So far as the decision of this Court in Sagufa Ahmed [Sagufa Ahmed v. Upper Assam Plywood Products (P) Ltd., (2021) 2 SCC 317 : (2021) 2 SCC (Civ) 178] is concerned, a few relevant factors related with the said case need to be noticed. In that case, the appellants had moved an application before the Guwahati Bench of the National Company Law Tribunal for winding up of the respondent company. The petition was dismissed on 25-10-2019 [Sagufa Ahmed v. Upper Assam Plywood Products (P) Ltd., 2019 SCC OnLine NCLT 749] . The appellants applied for a certified copy of the order dated 25-10-2019 [Sagufa Ahmed v. Upper Assam Plywood Products (P) Ltd., 2019 SCC OnLine NCLT 749] only on CS(COMM) 917/2018 Page 18 of 22 Signature Not Verified Digitally Signed By:KAMAL KUMAR Signing Date:05.08.2022 16:51:30 21-11-2019 or 22-11-2019 and received the certified copy of the order through their counsel on 19-12-2019. However, the appellants filed the statutory appeal before the National Company Law Appellate Tribunal only on 20-7-2020 with an application for condonation of delay. The Appellate Tribunal dismissed [Sagufa Ahmed v. Upper Assam Plywood Products (P) Ltd., 2020 SCC OnLine NCLAT 609] the application for condonation of delay on the ground that it had no power to condone the delay beyond a period of 45 days. Consequently, the appeal was also dismissed. In that case, it was indisputable that even while counting from 19-12-2019, the period of 45 days expired on 2-2-2020 and another period of 45 days, for which the Appellate Tribunal could have condoned the delay, also expired on 18-3-2020. To overcome this difficulty, the appellants relied upon the aforesaid order dated 23-3-2020 [Cognizance for Extension of Limitation, In re, (2020) 19 SCC 10 : (2021) 3 SCC (Cri) 801] .
33.1. This Court observed that the appellants were not entitled to take refuge under the above order in SMWP No. 3 of 2020 because what was extended was only the period of limitation and not the period up to which delay could be condoned in exercise of discretion conferred by the statute. This Court said thus : (Sagufa Ahmed case [Sagufa Ahmed v. Upper Assam Plywood Products (P) Ltd., (2021) 2 SCC 317 : (2021) 2 SCC (Civ) 178] , SCC p. 322, para 17) "17. ... What was extended by the above order [Cognizance for Extension of Limitation, In re, (2020) 19 SCC 10 :
(2021) 3 SCC (Cri) 801] of this Court was only "the period of limitation" and not the period up to which delay can be condoned in exercise of discretion conferred by the statute.
The above order [Cognizance for Extension of Limitation, In re, (2020) 19 SCC 10 : (2021) 3 SCC (Cri) 801] passed by this Court was intended to benefit vigilant litigants who were prevented due to the pandemic and the lockdown, from initiating proceedings within the period of limitation prescribed by general or special law. It is needless to point out that the law of limitation finds its root in two Latin maxims, one of which is vigilantibus et non dormientibus CS(COMM) 917/2018 Page 19 of 22 Signature Not Verified Digitally Signed By:KAMAL KUMAR Signing Date:05.08.2022 16:51:30 jura subveniunt which means that the law will assist only those who are vigilant about their rights and not those who sleep over them."
33.2. One of the significant facts to be noticed is that the said decision in Sagufa Ahmed case [Sagufa Ahmed v. Upper Assam Plywood Products (P) Ltd., (2021) 2 SCC 317 : (2021) 2 SCC (Civ) 178] was rendered by a three-Judge Bench of this Court much before the aforesaid final orders dated 8-3-2021 [Cognizance for Extension of Limitation, In re, (2021) 5 SCC 452 : (2021) 3 SCC (Civ) 40 : (2021) 2 SCC (Cri) 615 : (2021) 2 SCC (L&S) 50] and 27-9-2021 (sic 27-4-2021 [Cognizance for Extension of Limitation, In re, (2021) 17 SCC 231 : 2021 SCC OnLine SC 373] ) in SMWP No. 3 of 2020 by another three-Judge Bench of this Court. In those final orders, this Court not only provided for the extension of period of limitation but also made it clear that in computing the period of limitation for any suit, appeal, application or proceeding, the period from 15-3-2020 to 2-10-2021 shall stand excluded. Such proposition of exclusion, which occurred in the later orders, was not before this Court in Sagufa Ahmed [Sagufa Ahmed v. Upper Assam Plywood Products (P) Ltd., (2021) 2 SCC 317 : (2021) 2 SCC (Civ) 178] , which was decided much earlier i.e. on 18-9-2020. 33.3. Moreover, the extendable period in Sagufa Ahmed [Sagufa Ahmed v. Upper Assam Plywood Products (P) Ltd., (2021) 2 SCC 317 : (2021) 2 SCC (Civ) 178] was up to 18-3- 2020; and this Court found that lockdown was imposed only on 24-3-2020 and there was no impediment in filing the appeal on or before 18-3-2020. The present one is a case where the prescribed extendable time for filing of the written statement expired on 6-5-2021. It is not the case of the respondent nor is there any observation in the orders impugned that at the relevant point of time, the area in question was not a containment zone or that such a normalcy was available where the appellant could have filed its written statement. 33.4. Having regard to the orders subsequently passed by the three-Judge Bench of this Court in SMWP No. 3 of 2020 (and MA No. 665 of 2021 therein), as also having regard to the CS(COMM) 917/2018 Page 20 of 22 Signature Not Verified Digitally Signed By:KAMAL KUMAR Signing Date:05.08.2022 16:51:30 fundamental difference of facts and the surrounding factors, the said decision in Sagufa Ahmed [Sagufa Ahmed v. Upper Assam Plywood Products (P) Ltd., (2021) 2 SCC 317 : (2021) 2 SCC (Civ) 178] , in our view, is also of no application to the present case."
22. The facts of the case in Babasaheb Raosaheb Kobarne (supra) are close to the facts of the present case inasmuch as the 30 days period in the said case expired prior to 15.03.2020 and which is really the bone of contention and contest by the Plaintiff in the present case. Despite this glaring fact, the Supreme Court condoned the delay as the outer limit of 120 days expired post 15.03.2020, i.e. on 09.05.2020 in view of the orders passed in SMWP No.3 of 2020. Contra view taken by the Bombay High Court and assailed before the Supreme Court was accordingly not affirmed and the impugned order disallowing the written statement to be taken on record was set-aside.
23. I may also refer at this stage to a judgment of a Co-ordinate Bench of this Court in Choice Hotels International, INC v. Oravel Stays Private Limited and Others, 2022 SCC OnLine Del 1954, wherein the summons were accepted by the Defendants in the Court on 16.12.2021 and despite appearing continuously on several dates, Defendants did not file the written statement during the limitation period of 30 days. The written statement was filed with a delay of 96 days and applying the orders of the Supreme Court in SMWP No.3 of 2020 as well as the judgments in Prakash Corporates (supra) and HT Media Limited and Another v. Brainlink International, Inc. and Another, 2020 SCC OnLine Del 1703, the delay was condoned subject to cost of Rs.10,000/-.
CS(COMM) 917/2018 Page 21 of 22 Signature Not Verified Digitally Signed By:KAMAL KUMAR Signing Date:05.08.2022 16:51:3024. Coming to the facts of the present case, the 30 days limitation expired on 04.01.2020 and the outer limit of 120 days expired on 04.04.2020. The written statement was admittedly filed on 19.10.2020 albeit without an application for condonation of delay. Present application seeking condonation of delay, as aforementioned, was filed on 30.05.2022. Since the condonable period under Order VIII Rule 1 expired post 15.03.2020, Defendants in my view would be entitled to the benefit of 90 days period granted by the Supreme Court vide order dated 10.01.2022. Application seeking condonation of delay having been filed on the 90th day, the Defendants, in my view, are entitled for consideration on merits and it is required to be examined if sufficient cause is made out for condonation of delay.
25. This Court has perused the reasons set out in the application seeking condonation and finds that Defendants have made out a sufficient cause for condonation.
26. For all the aforesaid reasons, the application is allowed, subject to payment of cost of Rs.20,000/- in favour of the Delhi High Court Clerk's Association, within a period of three weeks from today. Written statement is taken on record, subject to compliance of the order for payment of cost.
27. Application is accordingly disposed of.
JYOTI SINGH, J AUGUST 01 , 2022/rk CS(COMM) 917/2018 Page 22 of 22 Signature Not Verified Digitally Signed By:KAMAL KUMAR Signing Date:05.08.2022 16:51:30