Prateek Jalan JUDGMENT
Prateek Jalan, J.
I.A. 4491/2019 (Application under Order VIII Rule 1 of the CPC, 1908)
1. This is an application filed by the plaintiffs under Order VIII Rule 1 of the Code of Civil Procedure, 1908 [hereinafter referred to as "the CPC"] for a direction that the written statement filed by the defendants be taken off the record.
Facts
2. The facts, insofar as relevant for the purposes of the present application, are broadly undisputed. The suit has been filed by the plaintiffs alleging infringement of their registered trademark and passing off. It was filed on 31.10.2015, and an ex-parte ad interim order of injunction was granted in favour of the plaintiffs on 02.11.2015. In that order, the Court directed issuance of summons and notice in the application, returnable before the Joint Registrar on 20.01.2016. The requirement of Order XXXIX Rule 3 of the CPC was directed to be complied with within one week of the order.
3. A Vakalatnama on behalf of the defendants was filed on 27.11.2015. They also filed I.A. No. 24550/2015 [under Order VII Rule 10 of the CPC], which was listed on 30.11.2015, and I.A. No. 26213/2015 [under Order XXXIX Rule 4 of the CPC], which was listed on 23.12.2015. Process fee in terms order dated 02.11.2015 was filed by the plaintiffs on 04.01.2016. When the matter was listed before the Joint Registrar on 20.01.2016, the defendants were directed to file the written statement as per the statutory period.
4. By a judgment dated 10.02.2016, the ad interim order of injunction granted on 02.11.2015 was vacated, and the plaintiffs' application for injunction was dismissed with costs. That order came to be affirmed by the judgment of Division Bench dated 18.11.2016 in FAO(OS) 177/2016.
5. On 27.02.2016, the defendants filed the written statement. Various other applications were thereafter filed by the parties, including an application by the plaintiffs for placing additional documents on record [I.A. 12412/2016, allowed on 06.12.2016], and an application for amendment of the plaint [I.A. 2894/2017, dismissed on 17.07.2018]. In the meantime, by the order dated 06.12.2016, the Court listed the matter before the Joint Registrar for completion of pleadings, and admission/denial of documents. As the parties had not filed original documents, the Joint Registrar closed the admission/denial of documents on 19.01.2017. The plaintiffs' appeal against this order was allowed on 28.08.2017. The Court accepted the contention of the plaintiffs that pleadings have not been completed, and admission/denial therefore ought to have been deferred. The suit was renumbered as a commercial suit within the meaning of the Commercial Courts Act, 2015 on 18.11.2017. After several opportunities, the plaintiffs filed an affidavit of admission/denial of defendants' documents on 12.12.2018, and thereafter moved the present application on 18.03.2019 for taking the written statement off the record.
Submissions
6. In the present application, the plaintiffs contend that the defendants, having notice of the proceedings on 21.11.2015, when the Vakalatnama was signed and affidavits affirmed in respect of applications under Order VII Rule 10 of the CPC, they ought to have filed their written statement within 30 days from the said date. Mr. Chattopadhyay, learned counsel for the plaintiffs, contends that the summons of the suit must be deemed to have been served prior to 27.11.2015, when the Vakalatnama and the application on behalf of the defendants were filed. In support of this argument, he cited the decision of the Bombay High Court in Suresh vs. Municipal Corporation of Greater Mumbai & Ors., MANU/MH/1804/2013 : 2013 (6) Mh. L.J. 845, and of the Allahabad High Court in Sri Nath Agrawal vs. Sri Nath, MANU/UP/0223/1981 : AIR 1981 All 400. He therefore contends that the written statement filed on 27.02.2016, without an application for condonation of delay, was belated, and liable to be struck off the record of the Court. Mr. Chattopadhyay cited the judgment of the Supreme Court in SCG Contracts (India) (P) Ltd. vs. K.S. Chamankar Infrastructure (P) Ltd., MANU/SC/0227/2019 : (2019) 12 SCC 210 to submit that the timelines for completion of pleadings in commercial suits are to be construed strictly. He emphasised that although the suit was numbered as a commercial suit on 18.11.2017, it was filed on 31.10.2015, after the Commercial Courts Act, 2015 had been brought into effect (from 23.10.2015). He therefore submitted, in accordance with a Coordinate Bench decision in Gulf DTH FZ LLC vs. Dishtv India Limited & Ors., MANU/DE/2368/2016 : (2016) VIII AD (Delhi) 266 [CS(OS)3355/2015, decided on 30.08.2016] (paragraphs 7 & 8), the suit was a "commercial suit" from its very inception..
7. In the reply filed on behalf of the defendants, it has been contended that the present application has been filed belatedly-more than three years after the written statement had been filed. Mr. Manish Biala, learned counsel for the defendants, submitted that the present application (for taking the written statement off the record) would be covered by Article 137 of the Schedule to the Limitation Act, 1963. The written statement having been filed on 27.02.2016, and the application having been made only on 26.03.2019, Mr. Biala submits that the application itself is barred by limitation. He also relied upon the decision in Red Bull AG vs. Pepsico India Holdings Pvt. Ltd. and Anr., MANU/DE/2836/2019 : 2019 (177) DRJ 398 to argue that a case-specific determination must be undertaken to decide whether the defendants' time for filing the written statement started running on the date of entering appearance or on the date the summons were served upon them. He submitted that soon after the defendants entered appearance, the Court passed an order dated 30.11.2015, recording that this Court no longer has pecuniary jurisdiction in the present case, as the suit was valued at ` 20,00,400/-. However, by reason of subsequent orders and notifications, the suit came to be retained in this Court. Mr. Biala has also pointed that the written statement was filed on 27.02.2016, well within the maximum period of 120 days permissible under Order VIII Rule 1 of the CPC, even if the period is reckoned from the date the defendants entered appearance.
Analysis
8. Having heard Mr. Chattopadhyay and Mr. Biala, I am of the view that the present application does not deserve acceptance. The written statement was filed on 27.02.2016. The plaintiffs did not object to the filing of the written statement at that time, or for more than three years thereafter. To the contrary, the plaintiffs continued with the proceedings in the suit, took several opportunities to file affidavits of admission/denial of documents, and were subjected to costs on more than one occasion.
9. The irony in the plaintiffs seeking to ventilate this grievance three years after the written statement was filed cannot be missed. The application is predicated on the need to dispose of commercial disputes expeditiously, and should itself have been moved without delay. Although the CPC does not provide for any specific period within which an application to take a written statement off the record can be made, it seems reasonable to suggest that such an application ought generally to be made at least within the period stipulated for responding to the written statement by filing of a replication. A plaintiff is entitled under Chapter VII Rule 5 of the Delhi High Court (Original Sides) Rules, 2018 to file a replication within 30 days after filing of the written statement, extendable by 15 days. On the facts of this case, it is not necessary to go further into this, as I find force in Mr. Biala's contention regarding the application being in fact barred by limitation. The Schedule to the Limitation Act, 1963 does not deal with an application under Order VIII Rule 1 of the CPC specifically. It therefore falls within the residuary provision of Article 137, under which an application can be made within three years after the right to apply accrues. The written statement having been filed on 27.02.2016, the right to apply accrued on that date, and the present application (filed on 18.03.2019) is therefore barred by limitation. Even on this basis, the plaintiff's application is highly belated.
10. Even on a consideration of the merits of the present application, the written statement filed by the defendants is not liable to be struck off the record. The plaintiffs' contention is that the time for filing the written statement should be reckoned from the date the defendants had knowledge of the suit, being 21.11.2015, on which date the defendants executed the Vakalatnama in favour of their erstwhile counsel. Even assuming this to be the case (following the judgments of the Bombay and Allahabad High Courts cited by Mr. Chattopadhyay), the written statement was filed within the maximum extendable period of 120 days therefrom. The judgment in SCG Contracts (supra) [paragraph 8] holds that the Court is empowered under Order VIII Rule 1 of the CPC to grant the extension of time (within the outer limit of 120 days), if due cause is shown.
11. In Red Bull AG (supra), the Court was faced with a situation where the defendant had filed the written statement even beyond the period of 120 days from the date of entering appearance. Although the Court rejected the interpretation that the period of limitation would start running only when the summons is actually served, it was held that this determination would depend upon the facts of each case. The relevant extracts of the judgment are as follows:
"25. Hence, when at the initial stage itself before summons are actually served on the defendant, the defendant appears in court having been informed through various other sources about the pendency of the proceedings, in such circumstances, it would depend upon the facts of the case as to whether the conduct of the defendant shows deemed service of summons or waiver of the right to have the summons served on him. Needless to say this would be a pure question of fact, dependent upon the facts and circumstances of each case. Normally, once a defendant has appeared in court without service of summons it would be deemed that summons stand served on him and that he has waived his right to receive summons. However, there may be exceptions depending on the facts and circumstances of each case. This aspect assumes greater significance in view of the amendment to Order 8 Rule 1 CPC by the Commercial Courts Act whereby a specified time period has been stipulated for filing of written statement from the date of service of summons."
[Emphasis supplied]
As the parties were referred to mediation on the second date of hearing, the Court held that the defendants could not be said to know that they were required to answer the claim before the Court, so as to constitute waiver of service of summons. The defendant was therefore deemed to have been served with summons only when the mediation proceedings were terminated. The written statement having been filed within 120 days from that date, the Court found on facts that the delay was justified, and rejected the plaintiffs contention to the contrary.
12. In the present case, by order dated 30.11.2015, being the first date after the defendants had entered appearance, the Court recorded as follows:-
"In view of the fact that this Court no longer has pecuniary jurisdiction vide Office Order dated 24.11.2015 issued by Hon'ble the Chief Justice in exercise of powers conferred by Section 4 of the Delhi High Court (Amendment) Act, 2015, list this matter before the Joint Registrar on 20.1.2016, the date already fixed."
13. The position was thereafter clarified and the suit was retained in this Court. The defendants filed an application under Order XXXIX Rule 4 of the CPC on 21.12.2015. During the intervening period, the defendants were well justified in assuming that they were not required to answer the plaintiffs' claim before this Court. The defendants were also granted an opportunity to file their written statement "as per the statutory period" by the order of the Joint Registrar dated 20.01.2016. The plaintiffs were represented and do not have appeared to have objected. Certainly, no appeal was filed against that order. These facts demonstrate that any delay in filing of the written statement by the defendants was not unreasonable or unjustifiable. Sufficient cause having been shown for the delay, the written statement is not liable to be struck off the record.
Conclusion
14. In these circumstances, the plaintiffs have failed to make out a case for the relief sought in this application. The application is therefore dismissed.
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