ODEON BUILDERS PVT. LTD. v. NBCC (INDIA) LIMITED - (High Court of Delhi) (31 Oct 2019)

Affidavit For Admission/Denial Of Documents In Commercial Suits Must Filed Within 45 Days

MANU/DE/3529/2019

Civil

Present appeal filed by the plaintiff challenging the order of the learned Joint Registrar in CS (COMM) 1261/2018, whereby the learned Joint Registrar has closed the right of the Plaintiff to file replication as well as the affidavit of admission / denial of documents.

It is the submission of Mr. Tandon that, there is no reason for the learned Joint Registrar not to grant further time of two days to enable the Appellant / plaintiff file the replication as well as the affidavit of admission / denial of documents as the time period under the Delhi High Court (Original Side Rules), 2018 is not mandatory to be followed. The issue which falls for consideration in this case is, whether the learned Joint Registrar CS (Comm.) was right in closing the right of the appellant / plaintiff to file replication and affidavit of admission / denial of documents.

By including the words “not thereafter” in Rule 5 of Chapter II of Rules, the rule making authority intended to exclude grant of further time for filing the replication and affidavit of admission / denial of documents after the expiry of period of 45 days. The plea of Mr. Tandon was that in view of Rule 14 and 16 of Chapter I, the court has discretion to grant further time over and above what has been prescribed in Rule 5 of Chapter VII of the Rules, is not acceptable.

Rule 14 and 16 cannot be read in any manner to make the words “not thereafter” in Rule 5 of Chapter VII otiose. In any case, it is a settled position of law in terms of the Judgment of the Supreme Court in Padam Sen and Ors. v. State of Uttar Pradesh that, the inherent power of the court is in addition to the power specifically conferred on the court by the Code (Rules in this case). It is well-recognized that inherent power is not to be exercised in a manner which will be contrary to or different from the procedure expressly provided in the code.

It necessarily follows that, the period of 30 plus extended period of 15 days are mandatory for the Plaintiff to file replication along with admission / denial of documents. If the same are not filed within the time prescribed, learned Joint Registrar or the court has no power to extend time beyond that period. The appeal filed by the Appellant / Plaintiff is devoid of merit and the same is dismissed.

Tags : REPLICATION FILING RIGHT