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2024 SCC OnLine Del 5414 : 2024 AIR CC 3024

In the High Court of Delhi at New Delhi

(BEFORE NAVIN CHAWLA, J.)

Radha Phool Fin-Investments Pvt. Ltd. … Plaintiff;

Versus
Paramsukh Nirman Pvt. Ltd. … Defendant.
CS(COMM) 1053/2018
Decided on August 6, 2024
Advocates who appeared in this case :
Mr. Nishant Datta, Mr. Pradeep Bhardwaj, Mr. Chirag Rathi, Mr. Kunal
Sejwal, Advs.
Ms. Renuka Arora, Adv.
The Judgment of the Court was delivered by
NAVIN CHAWLA, J. (Oral):—
I.A. 10144/2018
1. This application has already been disposed of vide Order dated
24.02.2022 of this Court. Hence, the same should not be listed in
future.
I.A. 6337/2022
2. This application has been filed by the defendant praying for
condonation of delay of 87 days in filing of the appeal, that is, O.A.
14/2022.
3. For the reasons stated in the application, the delay in filing the
appeal is condoned.
4. The application stands disposed of.
O.A. 14/2022
5. This appeal has been filed by the defendant challenging the Order
dated 21.12.2021 passed by the learned Joint Registrar (Judicial)
(hereinafter referred to as ‘Impugned Order’), dismissing the
application, that is, I.A.1466/2019, filed by the defendant seeking
condonation of delay in filing the written statement.
Factual Background:
6. Before adverting to the submissions of the learned counsels for
the parties, brief chronological events giving rise to the appeal are
given as under:
a) It is not disputed that the defendant was served with the
summons of the Suit on 22.09.2018;
b) The defendant filed its written statement on 15.01.2019 albeit
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without any affidavit of admission/denial of the documents filed

by the plaintiff;
c) The defects were duly marked in the written statement and same
was filed on 15.02.2019 by the defendant, however, again without
any affidavit of admission/denial of the documents; and,
d) The affidavit of admission/denial of the documents was finally
filed by the defendant on 21.02.2019, that is, beyond the period
of 120 days of service of summons. The maximum extendable
period of 120 days having expired on 19.01.2019.
7. The learned Joint Registrar (Judicial), placing reliance on the
judgment of the Supreme Court in SCG Contracts (India) (P) Ltd. v.
K.S. Chamankar Infrastructure (P) Ltd., (2019) 12 SCC 210 and of this
Court in Unilin Beheer B.V. v. Balaji Action Buildwell, 2019 SCC OnLine
Del 8498 has held that the period of 120 days of filing of the written
statement is sacrosanct and cannot be extended. It was further held
that the written statement, though filed, would be deemed to have not
been filed in case the affidavit of admission and denial of the
documents has not been filed alongwith it. Even for the affidavit of
admission/denial of the documents, the prescribed timeline cannot be
extended and would remain the same as is prescribed for the written
statement. The learned Joint Registrar (Judicial) further held as under:
“……if the written statement has been filed within 120 days but
without the affidavit of admission/denial, non-filing of affidavit of
admission/denial is only a defect, and if this defect is cured within
the prescribed period of 30 days, the written statement and affidavit
of admission/denial would be deemed to have been filed within
prescribed statutory period and can be taken on record.”
8. The learned Joint Registrar (Judicial) has held that as the affidavit
of admission/denial of the documents was filed beyond the period of
120 days, and even beyond the prescribed period of 30 days for the
removal of the objection, hence, the written statement cannot be taken
on record.
9. Aggrieved of the above finding, the defendant has filed the
present appeal.
Submissions of the learned counsel of the appellant/defendant:
10. The learned counsel for the appellant/defendant, placing reliance
on the Judgments of this Court in COSCO (India) Ltd. v. Paramsukh
Nirman (P) Ltd., 2019 SCC OnLine Del 9633 (hereinafter referred to as
‘COSCO-I’) and COSCO International (P) Ltd. v. Jagat Singh Dugar,
2022 SCC OnLine Del 1113 (hereinafter referred to as ‘COSCO-II’),
submits that once the written statement is filed, albeit without an
affidavit of admission/denial of the documents, the rigors of the
timeline for filing of the written statement would no longer apply,
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because it would only be a matter of removing a defect in filing of such

written statement.
11. She submits that the defect for non filing of the affidavit of
admission/denial of the documents was only later given by the Registry
and the same was duly removed within the prescribed period. There
was no insistence by the Registry of this Court on an application by the
defendant for condonation of delay in re-filing of the written statement
with the affidavit of admission/denial of the documents. She submits
that, therefore, in view of the above Judgments, the written statement
ought to be taken on record.
Submissions of the learned counsel of the respondent/plaintiff:
12. On the other hand, the learned counsel for the
plaintiff/respondent in the appeal, placing reliance on the Judgment of
this Court in Unilin Beheer B.V. (supra), submits that this Court has
held that to give full effect to the provision of Chapter VII, Rule 3 of the
Delhi High Court (Original Side) Rules, 2018 (in short, ‘Delhi High Court
Rules’), it must be held that the written statement filed without the
affidavit of admission/denial of the documents shall be deemed to have
not been filed, and documents filed by the plaintiff shall be deemed to
have been admitted by the defendant.
13. He submits that therefore, in the present case, the written
statement is deemed not to have been filed till 21.02.2019, which is,
beyond the period of 120 days from the receipt of the summons by the
defendant.
Analysis and findings:
14. I have considered the submissions made by the learned counsels
for the parties.
15. This Court in Unilin Beheer B.V. (supra), while considering an
issue as to whether the written statement filed without the affidavit of
admission/denial of the documents can be taken on record, held as
under:
“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 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
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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.
xxx
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.
xxx
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.”
16. In Cosco-I (supra), this Court while considering the question as
to whether a written statement filed without an affidavit of
admission/denial of the documents, which is later filed, can be taken on
record or not, and being cognizant of the Judgment of this Court in
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Unilin Beheer B.V. (supra), explained the position of law by holding as

under:
“9. A perusal of the judgments cited by both the counsels for the
parties, shows that:
a) The filing of the written statement has to be within 120 days.
The period of 120 days is mandatory;
b) The written statement has to be accompanied with the affidavit
of admission/denial.
10. However, under Chapter VII, Rule 3 of the Delhi High Court
(Original Side) Rules, once a written statement is filed, the same
would not be brought on record without the affidavit of
admission/denial. It would be one of the defects in the written
statement if it is not accompanied with the affidavit of
admission/denial. For re-filing and removing defects, there is a total
30 days' period which is available to parties. Chapter I Rule 14
cannot be used to dispense with the mandatory requirements under
the Rules, but only in respect of those rules where it is only a
question of practice and procedure. The time of seven days from re-
filing within the total period of 30 days would have to be considered
as a matter of practice and procedure in the present case inasmuch
as there is a fundamental difference between the ‘filing of the
written statement’ along with the affidavit of admission/denial and
‘bringing the same on record’. If the affidavit of admission/denial
is not accompanying the written statement, however, upon the
Registry pointing out the said defect, the same can be cured within
30 days. If the said defect is cured, it cannot be held that the written
statement and the affidavit of admission/denial cannot be brought
on record.
11. While the timelines for filing the written statement within 120
days, are absolutely mandatory, removal of defects has to be seen in
the overall period of 30 days which is permitted under Rule 3 of
Chapter IV. In the present case, the first filing was on 15th January,
th
2019, the second filing was on 25 January, 2019 and the final filing
th
was on 15 February, 2019. The time of 120 days expired only on
nd
22 January 2019, thus the written statement was filed within the
120 days period. The defects, which were pointed out by the
Registry i.e. not filing of admission/denial affidavit was cured within
the broad frame work of Chapter IV, Rule 3 i.e. within 30 days of the
initial filing of the written statement.
12. Mr. Asheesh Jain, Ld. counsel has rightly pointed out that as
per Unilin Beheer B.V. (supra), the time period for filing of
admission/denial affidavit which is 120 days is not extendable as per
para 32 of the said judgment. The purpose of admission/denial of
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documents is for a party to take a stand as to whether the

documents of the Plaintiff are being admitted or denied. The written
statement sets out the fundamental defence of the Defendant, and
the affidavit of admission/denial is merely a notation of the stand of
the Defendant, which is expected to be contained in the written
statement. In the present case, the written statement having been
filed within the 120 days' period, the stand of the Defendant in
respect of the documents has already come on record. What is only
not filed is a chart in the form provided specifically mentioning as to
whether there is admission or denial of the documents. In the facts
of the present case, the Court does not deem it appropriate to
interfere in the order of the Joint Registrar. It is also relevant to
point out that the replication has also been filed by the Plaintiff along
th
with the affidavit of admission/denial. Both have been filed on 27
July, 2019.”
17. In Cosco-II (supra), another learned Single Judge of this Court,
again considering the above issue and also upon taking note of the
above referred judgments, reiterated as under:
“14. What is noteworthy is that having expressed the opinion in
para 31 of Unilin Beheer B.V. (supra) as extracted above, even in
that case, the Co-ordinate Bench allowed the written statement (to
the counter claim) to be taken on record subject to payment of
costs; since, the written statement and the affidavit of
admission/denial of documents had been filed within the maximum
time period specified for the purpose under the law. Accordingly,
para 31 as aforesaid must be taken to apply only when the written
statement is filed beyond the 120 days period and the defect of not
having filed an affidavit of admission/denial of documents is also not
cured within the maximum 30 days period prescribed by law from
the date that the filing objection is brought to the knowledge of the
party.
15. Upon a conspectus of the timelines as setout above and in
light of the provisions of the CPC as amended by the Commercial
Courts, Commercial Division & Commercial Appellate Division of High
Courts (Amendment) Act, 2018 read in conjunction with the Delhi
High Court (Original Side) Rules, 2018, as also the judicial
precedents referred to by the parties, this court is of the view that
written statement having been filed within the statutory period; and
the defect of non-filing of the affidavit of admission/denial also
having been cured well within the permissible time period, nothing
further stands in the way of the written statement being taken on
record.
16. For clarity, it is reiterated that what Order V Rule 1(1) and
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Order VIII Rule 1 CPC provide is the outer time-limit for filing of the
written statement of defence. The filling by the defendant of an
affidavit of admission/denial of the plaintiff's documents, is a
separate requirement under Chapter VII Rule 3 and 4 of the Delhi
High Court (Original Side) Rules, 2018; and the consequence for not
filing such affidavit is that the written statement shall not be taken
on record and that the plaintiff's documents shall be deemed to be
admitted by the defendant. However, the filing of a written
statement within the prescribed time but without an accompanying
affidavit of admission/denial of documents, does not amount to non-
est filing, since it cannot be said that nothing was filed at all. It
would, however, amount to a defect, that is required to be cured
after it is brought to the attention of the party by the Registry.
Chapter VII Rule 3 only bars taking on record a written statement
that is filed without an accompanying affidavit of admission/denial of
documents. Filing of the written statement and it being taken on
record are two separate and distinct matters.”
18. From the above, it would be evident that the outer time for filing
of the written statement along with the affidavit of admission/denial of
the documents, including the period by which the delay in filing the
same can be condoned, is 120 days from the date of the receipt of the
summons by the defendant and the said time limit is sacrosanct. A
delay beyond 120 days cannot be condoned by the Court. However,
where the written statement is filed albeit without the affidavit of
admission/denial, it is merely a defect which must be thereafter cured
in terms of the Chapter IV, Rule 3 of the Delhi High Court Rules and
within the time prescribed therefor.
19. In the present case, the Registry of this Court has not raised any
objection for non-removal of the defects in the written statement within
the time prescribed in Chapter IV, Rule 3 of the Delhi High Court Rules.
In terms of the Judgments of this Court in Cosco-I (supra) and Cosco-II
(supra), therefore, the written statement ought to have been taken on
record once the defects pointed out in the filing of the written
statement, including filing of the affidavit of admission/denial of
documents, had been removed by the defendant within the period
prescribed by the Registry of this Court.
Conclusion:
20. The Impugned Order therefore cannot be sustained and is set
aside.
21. The written statement alongwith affidavit of admission and
denial of the documents filed by the defendant is taken on record.
CS(COMM) 1053/2018
22. The replication, if any, shall be filed by the plaintiff within the
prescribed period.
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23. The parties shall file the Joint Schedule of Documents within two
weeks thereafter.
24. The learned counsels for the parties submit that the present suit
is connected with CS(COMM) 1051/2018 and CS(COMM) 1052/2018,
th
which are listed before the learned Joint Registrar (Judicial) on 9
October, 2024.
25. The present Suit shall therefore be listed alongwith the
th
abovementioned Suits on 9 October, 2024 before the learned Joint
Registrar (Judicial).
———
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