Amit Bansal JUDGMENT
Amit Bansal, J.
1. The present petition was filed impugning the order dated 29th January, 2021 of the District Judge (Commercial), South East, Saket, New Delhi in CS(COMM.) No. 323/2019, of dismissal of the application of the petitioner/defendant under Order VIII Rule 1 of the Code of Civil Procedure, 1908 (CPC) for condonation of delay in filing the written statement. The said application was dismissed vide the impugned order, on the ground that the Commercial Courts, under the law have no power to extend the period of 120 days for filing the written statement.
2. The suit from which the present petition arises was filed by the respondent/plaintiff before the District Judge (Commercial Court), seeking permanent injunction to restrain the petitioner/defendant from selling goods under the mark 'PUMA' and 
logo and other ancillary reliefs. Vide order dated 15th February, 2019, the Commercial Court granted an ex parte ad interim injunction in the suit, in favour of the respondent/plaintiff and also appointed a Local Commissioner to, inter alia inspect the premises of the petitioner/defendant and take into custody all infringing goods at the said premises.
3. This petition was heard along with CM(M) 132/2021, wherein a detailed judgment dated 10th August, 2021 was passed by a Division Bench of this Court (of which I was a part) holding, inter alia that:
(i) a petition filed under Article 227 of the Constitution of India arising out of a commercial suit filed before the District Judge is maintainable, however, the exercise of such jurisdiction by the High Court is discretionary; and
(ii) exercise of such discretion is vested with the Single Judge of this Court as per current roster allocation.
4. In terms of the aforesaid judgment, this petition came up for hearing before this Bench.
5. Learned counsel for the petitioner has contended that summons were received by the petitioner without a copy of the plaint and the documents on 6th June, 2019. On 19th September, 2019, when the counsel for the petitioner appeared before the Commercial Court, upon directions of the court, the complete set of suit paper book was provided to the petitioner and it was directed that written statement be filed within four weeks. The petitioner could not file written statement in the aforesaid time period due to various factors and the written statement was filed by the petitioner on 11th December, 2019, which was within the condonable period of 120 days provided under Order VIII Rule 1 of the CPC, as applicable to commercial suits. On 26th February, 2020, an application was filed on behalf of the petitioner seeking condonation of delay in filing the written statement.
6. Counsel for the petitioner has vehemently contended that since the complete set of the plaint was only provided to the petitioner on 19th September, 2019, the time limit for filing written statement would start from the aforesaid date and in view of the fact that the written statement has been filed within 90 days from the aforesaid date, the same should have been taken on record. Counsel for the petitioner has relied upon the judgment dated 28th August, 2019 passed by a Single Bench of this Court in CS(COMM.) 1092/2018 titled Redbull India AG Vs. Pepsico India Holdings Pvt. Ltd. & Anr., wherein the written statement of the defendant therein, filed within the outer limit prescribed under Order VIII Rule 1 of the CPC as applicable to commercial suits, was taken on record despite the fact that no application for condonation of delay had been filed.
7. Per contra, the counsel appearing on behalf of the respondent submits that even as per the case set up by the petitioner, the entire paper book of the suit was supplied to him on 19th September, 2019. The written statement was filed by the petitioner on 11th December, 2019, after expiry of the 30 days' period for filing written statement, but before the maximum permissible period of 120 days provided in Order VIII Rule 1 of the CPC. However, the condonation of delay application was filed by the petitioner on 26th February, 2020 which was beyond the maximum condonable period of 120 days provided in Order VIII Rule 1 of the CPC. He places reliance on the decision of the Co-ordinate Bench of this Court dated 15th January, 2020 in CS (COMM.) 140/2019 titled as Friends Motel Pvt. Ltd. Vs. Shreeved Consultancy LLP & Ors. and judgment dated 17th August, 2021 in CM (M) 346/2020 titled as M/s. OK Play India Pvt. Ltd. Vs. M/s. A.P. Distributors & Anr., to contend that if the application for condonation of delay in filling written statement is filed beyond a maximum permissible period of 120 days, in respect of a commercial suit, the written statement cannot be taken on record. It is further submitted by the counsel appearing on behalf of the respondent that no sufficient reasons have been given by the petitioner in the application filed for condonation of delay. The petitioner has made unsubstantiated claims in relation to the strike of lawyers and receiving threats of bodily harm to explain the delay in filing the written statement, in the application for condonation of delay.
8. Counsel for the respondent further submits that the petitioner is a habitual infringer and has placed reliance on an ex parte decree dated 27th August, 2021 passed against the respondent in CS(COMM.) 2090/2019 titled Guccio Gucci S.P.A. Vs. Intiyaz Sheikh. He also seeks to distinguish the judgment in Red Bull (supra) on the ground that in the said judgment, the court was not seized of the issue of whether the written statement can be taken on record if it is filed belatedly and without any application for condonation of delay, whereas in Friends Motel Pvt. Ltd. (supra) this was directly an issue before the court.
9. In rejoinder, it was stated by the counsel for the petitioner that a review petition has been filed against the judgment in M/s. OK Play India Pvt. Ltd. (supra), which has been relied upon by the respondent.
10. I have heard the rival contentions.
11. In Friends Motel Pvt. Ltd. (supra), this Court was seized of a situation where the application for condonation of delay was not filed within the overall time limited of 120 days and this Court held that in the absence of an application seeking condonation of delay, the written statement could not have been taken on record. Paragraph 5 of the judgment is set out hereinbelow:
"5. The issue in the present suit is whether this mandate of the law that the written statement has to be filed within 120 days as an outer limit can be frustrated by delaying filing of the application for condonation of delay in filing the written statement and not pursuing the same. The answer thereto has to be in the negative. The application seeking condonation of delay in filing the written statement as noted above was not filed within the period of 120 days and thereafter also not followed up and objections removed for more than four and a half months i.e. for more than further 120 days. In the absence of a proper application seeking condonation of delay in filing the written statement, the written statement could not have been taken on record and is thus not on record of this Court. Consequently, the written statement not being on record, the suit is liable to be decreed in favour of the plaintiff and against the defendant, in case the facts as pleaded in the plaint and documents filed so justify."
12. The judgment in Friends Motel (supra) was affirmed in appeal, being RFA (OS) (COMM.) 9/2020, by a Division Judge of this Court in judgment dated 2nd July, 2020 titled Shreeved Consultancy LLP & Ors. Vs. Friends Motel Pvt. Ltd. and subsequently followed by a Single Bench of this Court in judgment dated 17th August, 2021 of M/s. OK Play India Pvt. Ltd. (supra), wherein it was observed as under:
"10. Now, the question is whether a condonation application had to be filed and that too within 120 days, along with the written statement or whether the court without any application before it, could condone the delay and receive the written statement, subject to recording of its reasons and imposition of costs. This Court is of the view that since it is not for the court to furnish reasons for condoning the delay in filing the written statement, it is necessary that the defendant, when filing a belated written statement, also submits to the court an explanation for the delay, by moving an application in this regard. A written application supported by an affidavit is a must for seeking condonation of delay.
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12. A Coordinate Bench of this Court in Friends Motel (Supra) was dealing with a case with similar facts. There too, the written statement was filed with an affidavit of admission and denial on the 117th day on receipt of summons, without an application seeking condonation of delay. An application for condonation of delay was claimed to have been filed on 28th August, 2019 i.e., after another 19 days. It was held that the necessary application seeking condonation of delay in filing the written statement having not been filed within the period of 120 days, there was no proper application filed before the court for condonation of delay and the written statement was not allowed to be taken on record."
13. It has rightly been contended by the counsel for the respondent that in Red Bull (supra) cited by the petitioner, no finding has been given by the court on whether a written statement filed belatedly can be taken on record in the absence of an application for condonation of delay.
14. The ratio of the aforesaid judgments relied on by the respondent would be squarely applicable to the facts of the present case. Admittedly, in the present case, though the written statement was filed on 11th December, 2019 the condonation of delay application was filed only on 26th February, 2020, as an afterthought. No reasons have been given as to why application for condonation of delay was not filed with the written statement and was filed only on 26th February, 2020. In fact, it noted in the order 15th January, 2020 of the Commercial Court that the petitioner has not filed any application for condonation of delay in filing the written statement. Yet the application was filed after almost 40 days thereafter.
15. Even in the application for condonation of delay filed by the petitioner, no sufficient grounds have been given for delay in filing the written statement. Only vague and unsubstantiated averments have been made, that the petitioner was prevented from filing the written statement on time on account of strike of lawyers and the petitioner receiving threats of bodily harm. No documents were filed before the Commercial Court in support of the said ground of bodily harm. In respect of the strike by lawyers, it is submitted on behalf of the petitioner that he was unable to access the court premises on 6th November, 2019, however, neither has a date been mentioned as to when the strike ended, nor has an explanation been provided for delayed filing of the written statement after the strike.
16. In Shreeved Consultancy (supra), a Division Bench of this Court has observed as under:
"5. In view of the aforesaid position, we see no reason to accept the submission made by learned counsel for the appellants that the written statement even though filed after the expiry of 90 days, but before 120 days, ought to have been taken into consideration. It is only in the event a defendant is able to make out sufficient cause or demonstrate any extraordinary circumstances does the Court condone a delay beyond the maximum period of 90 days. The appellants/defendants have miserably failed to demonstrate any such circumstances for the court to have condoned the delay beyond 90 days."
17. In the present case, the petitioner has neither made out sufficient cause nor demonstrated any extraordinary circumstances in support of condoning the delay.
18. The Supreme Court, in Ambalal Sarabhai Enterprises Ltd. Vs. K.S. Infraspace LLP, MANU/SC/1378/2019 : (2020) 15 SCC 585 has observed that the provisions of the Commercial Courts Act, 2015 have to be strictly construed and if the provisions are given liberal interpretation, the object behind the enactment, of speedy disposal, will be defeated.
19. In light of the above, no ground is made out for interference of this Court in exercise of its jurisdiction under Article 227 of the Constitution of India.
20. The petition is dismissed. The pending application is also disposed of.
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