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A written application supported by an affidavit is a must for seeking condonation of delay: Delhi High Court

When a written statement is filed after 30 days of service of summons but before the expiry of further 90 days, the filing of the written statement must be accompanied with a written application setting out the reasons for the delay to allow the court to consider the reasons so given, to condone delay and receive the belated written statement giving reasons for granting such leave and enabling the court to impose appropriate costs. This was held by the Hon’ble Justice Asha Menon in the case of M/s OK Play India Pvt. Ltd. Vs. M/s A P Distributors and Anr. [CM (M) 346/2020] on the 17th of August, 2021 before the Hon’ble High Court of Delhi at New Delhi.

The brief facts of the case are, The petitioner/plaintiff had filed the suit for the recovery of a sum of Rs.7,68,000/-. Summons were duly served on the respondent on 23rd January, 2019. the written statement had to be filed by 22nd February, 2019. However, the written statement was filed on 26th February 2019, with a delay of four days and that too, without the affidavit of admission and denial of documents, as mandated by the Delhi High Court (Original Side) Rules 2018. Neither was the written statement accompanied with any application seeking condonation of delay. the learned Commercial Court heard the objections raised by the petitioner/plaintiff on 31st October 2019 and reserved the matter for orders for pronouncement at 4 PM that day. However, at 4 PM itself, the learned Court accepted an application filed by the respondents/defendants under Section 151 C.P.C., for condonation of the delay in filing the written statement and re-fixed the matter for orders on 26th November 2019.

 The counsel for the petitioner submits that, on 20th May 2019, the affidavit of admission and denial was filed i.e., after 118 days of the service of summons, and once again, no application for condonation of delay accompanied the filing of the said affidavit. This, according to the learned counsel for the petitioner/plaintiff, has greatly prejudiced it as the time lines in a commercial suit were strict and the petitioner/Plaintiff was entitled to a decree as the written statement and affidavit had been filed belatedly and without applications for condonation of delay. The application for condonation of delay could not have been filed and taken on record on 30th October, 2020, after the expiry of 120 days from the date of service, beyond which period, the Court had no powers to condone delay in filing the written statement. Learned counsel argued that no application for condonation of delay could have been received once the matter was fixed for orders. The commercial court noted that, that though the application for condonation of delay was filed only on 31st October, 2020, the written statement and the affidavit had been filed well within the period of 120 days, the period up to which time the court had powers to condone the delay. It was also of the opinion that as the application for condonation of delay had brought out cogent reasons to explain the delay, therefore, a hyper technical view was not called for.

The learned judge heard the submissions and relied on the judgement in SCG contracts India Private Limited Vs. K.S. Chamankar Infrastructure Private Limited and Others, 2019 (12) SCC 210, wherein it was held that, “A perusal of these provisions would show that ordinarily a written statement is to be filed within a period of 30 days. However, grace period of a further 90 days is granted which the Court may employ for reasons to be recorded in writing and payment of such costs as it deems fit to allow such written statement to come on record. What is of great importance is the fact that beyond 120 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. This is further buttressed by the proviso in Order 8 Rule 10 also adding that the court has no further power to extend the time beyond this period of 120 days.” 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. The petition was allowed by holding that, “The learned Commercial Court erred in observing that the written statement and affidavit had been filed before the expiry of the 120 days’ time that is available to the court to allow the filing of the written statement and use its inherent powers under Section 151 C.P.C. and to set at naught the mandatory provisions for filing of the written statement within 30 days or within the further period of 90 days allowed under Order VIII Rule 1 C.P.C., accompanied with an application seeking condonation of delay.”

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