SHEFALI KOHI vs NEENA CHATRATH & ANR.

$~49
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of Decision: 8th April, 2024
+ CS(OS) 307/2022 & O.A. 70/2024
SHEFALI KOHLI ….. Plaintiff
Through: Mr. Kushal Kumar and Mr. Akashdeep Gupta, Advocates (M: 9958724670).
versus

NEENA CHATRATH & ANR. ….. Defendants
Through: Mr. Ajay Kohli, Advocate with Ms. Dipika Prasad and Rahul, Advocates (M: 8377895502).
CORAM:
JUSTICE PRATHIBA M. SINGH
Prathiba M. Singh, J. (Oral)
1. This hearing has been done through hybrid mode.
O.A. 70/2024 
2. This is an appeal filed on behalf of the Defendants/Appellants- Ms. Neena Chatrath and Mr. Gaurav Chatrath challenging the impugned order dated 13th March, 2024 (hereinafter, ‘impugned order’). The impugned order passed by the ld. Joint Registrar holds that the Defendants have filed their written statement beyond the statutory limit of 120 days hence, the same has not been taken on record.
3. The first thing that needs to be noted in this case is that the present suit is a family dispute where the Plaintiff-Ms. Shefali Kohli is inter alia seeking a decree of declaration and partition of the residential property- bearing K-25D, SFS Flats Saket, New Delhi-110017 and factory premises bearing No. F-77, Okhla Industrial Estate Phase-III, Near Modi Mills, New Delhi-110020 as well as other movable and immovable assets of her father Late Sh. Gurdeep Singh Chatrath. The Plaintiff has filed the present suit against her mother-Ms. Neena Chatrath (Defendant No. 1) and brother-Mr. Gaurav Chatrath (Defendant No. 2).
4. The admitted position on record is as under:-
* That summons were served upon the Defendant on 17th August, 2022 and 20th August, 2022.
* Joint written statement by both the Defendants was filed on 13th October, 2022 with a delay of merely 26 days beyond the 30 days period.
* Objections were raised as the affidavit of admission/denial was not filed. The same was then filed on 21st November, 2022.
* On 25th November, 2022 objections were again raised by the Registry stating that the affidavit of admission/denial and the written statement are not filed together i.e. filed vide different diary numbers.
* On 27th January, 2023 the written statement and the affidavit of admission/denial is re-filed vide common diary number.
5. The legal position on the limitation period for filing Written Statements is stipulated in the Code of Civil Procedure, 1908 and the Delhi High Court (Original Side) Rules 2018:-
“Order V Rule 1(1), Code of Civil Procedure, 1908

1. Summons.-(1) When a suit has been duly instituted, a summons may be issued to the defendant to appear and answer the claim and to file the written statement of his defence, if any, within thirty days from the date of service of summons on that defendant:
****
Provided further that where the defendant fails to file the written statement within the said period of thirty days, he shall be allowed to file the same on such other days as may be specified by the Court, for reasons to be recorded in writing, but which shall not be later than ninety days from the date of service of summons.
(emphasis supplied)

Chapter VII Rule 2, Delhi High Court (Original Side) Rules, 2018

2. Procedure when defendant appears.— If the defendant appears personally or through an Advocate before or on the day fixed for his appearance in the writ of summons:—
(i) where the summons is for appearance and for filing written statement, the written statement shall not be taken on record, unless filed within 30 days of the date of such service or within the time provided by these Rules, the Code or the Commercial Courts Act, as applicable. An advance copy of the written statement, together with legible copies of all documents in possession and power of defendant, shall be served on plaintiff, and the written statement together with said documents shall not be accepted by the Registry, unless it contains an endorsement of service signed by such party or his Advocate.

[The written statement shall also contain a statement certifying authenticity of document(s) filed. Where copy(ies) of document(s) are filed, it shall be specified in the index as to in whose custody, power and control are the original(s) thereof. Service of summons for the purpose of this Rule shall only be deemed to be complete after inspection is provided by the Plaintiff, if such inspection is sought by an application moved within a period of 7 days from the receipt of first set of summons.]

(ii) [Any party which seeks to inspect the originals of any documents shall give a notice for inspection and the inspection shall be given at a mutually convenient location within one week of receipt of the notice.]

Chapter VII Rule 3, Delhi High Court (Original Side) Rules, 2018

3. Affidavit of admission/ denial of documents alongwith written statement.-Alongwith the written statement, defendant shall also file an affidavit of admission/ denial of documents filed by the plaintiff, without which the written statement shall not be taken on record. Alongwith the written statement, the defendant shall be entitled to file applications for interrogatories for examination of the plaintiff together with proposed interrogatories; application for discovery; and application for inspection of such documents.
[The affidavit referred to in this Rule shall be in accordance with the provisions of Rule 4 of Order XI of the Code, as applicable under the Commercial Courts Act.]

Chapter VII Rule 4, Delhi High Court (Original Side) Rules, 2018

4. Extension of time for filing written statement. If the Court is satisfied that the defendant was prevented by sufficient cause for exceptional and unavoidable reasons in filing the written statement within 30 days it may extend the time for filing the same by a further period not exceeding 90 days, but not thereafter. For such extension of time, the party in delay shall be burdened with costs as deemed appropriate. The written statement shall not be taken on record unless such costs have been paid/ deposited. In case the defendant fails to file the affidavit of admission/ denial of documents filed by the plaintiff, the documents filed by the plaintiff shall be deemed to be admitted. In case, no written statement is filed within the extended time also, the Registrar may pass orders for closing the right to file the written statement.

Chapter IV Rule 3, Delhi High Court (Original Side) Rules, 2018

“3. Defective pleading/document-
(a) Upon scrutiny, if any pleading(s)/document(s) are found defective, the Deputy Registrar/Assistant Registrar, Incharge of the Filing Counter, shall specify the objection(s), a copy of which will be kept for the Court Record, and return for removal of objection(s) and re-filing within a time not exceeding 7 days at a time and 30 days in aggregate. On every re-filing caveat clearance shall be taken. In addition, the party must again serve the corrected copy upon the caveator(s) who had a valid caveat at the time of the first filing.
(b) If the pleading(s)/document(s) are not taken back for removal of objection(s) within 30 days time allowed under sub-Rule (a), it shall be listed before the Court for appropriate orders.
The 30 days’ period for the purpose of (a) and (b) above, shall commence from the date when the Registry raises the objections on the pleading/document filed.
(c) If the pleading(s)/document(s) are filed beyond the time allowed under sub-Rule (a) it shall be accompanied with an application for condonation of delay in re-filing.”

6. It is observed that in the present case, the Registry took an objection, that the affidavit of admission/denial and written statement filing has two different diary numbers. On the said basis, the written statement and the admission/denial were not accepted and the Defendants were again forced to file the same with one common diary number on 27th January, 2023. This led to the refiling of the written statement along with the affidavit of admission/denial and thereby delay beyond the 120 days period. Hence, the impugned order. 
7. The initial filing of the written statement was within a period of two months. The affidavit of admission/denial was also filed within a period of 120 days. The only objection was that they were not filed within the same index.
8. This legal position has been clarified in the judgment COSCO International Pvt. Ltd. v. Jagat Singh Dugar [(2022) SCC OnLine Del 1113] wherein it is held that filing of a written statement within the prescribed time but without an accompanying affidavit of admission/denial of documents does not amount to a non-est filing. It would, however amount to a defect that is required to be cured. Further, it was observed that as long as the written statement as also the affidavit of admission/denial of documents is filed within the prescribed limitation period, non-filing of them together would not make them a non est filing. The relevant portion of the judgment is hereinunder:
“16. For clarity, it is reiterated that what Order V Rule 1(1) and 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.
17. As discussed above, in the present case, both the written statement as also the affidavit of admission/denial of documents were filled within prescribed, extended time-lines, except they were not filed together. Without getting into any other hypothetical questions, which do not arise in this case, the plaintiff’s contention does not commend itself for acceptance.”

9. The legal position this regard has further been clarified in COSCO (India) Ltd. v. Paramsukh Nirman Pvt. Ltd. [(2019) SCC OnLine Del 9633] where the Court held that the written statement along with the affidavit of admission/denial would be liable to be taken on record as filing, re-filing, etc. are procedural matters which the High Court Registry follows, and broadly, if the timelines are adhered to, the Court would not strike out the defence of a party. Relevant portion of the judgment is hereinunder:-
“14. Under these overall circumstances, this Court holds that the written statement along with the affidavit of admission/denial would be liable to be taken on record as filing, re-filing, etc. are procedural matters which the High Court Registry follows. Broadly if the timelines are adhered to, the Court would not strike out the defence of a party, especially in a suit where recovery of such a huge amount is being sought. Recently in Robin Thapa v. Rohit Dora [Civil Appeal No. 4507/2019 decided on 8 July, 2019] it has been held by the Supreme Court that the endeavour of the Court has to be decide disputes on merits and not on the defaults of the parties. The relevant paragraph reads as under:
“8. Ordinarily, a litigation is based on adjudication on the merits of the contentions of the parties. Litigation should not be terminated by default, either of the plaintiff or of the defendant. The cause of justice does require that as far as possible, adjudication be done on merits.”

10. There is no doubt that the written statement should ideally be filed along with the affidavit of admission/denial but the fact that the same was filed by a different diary number would not lead to a situation where the written statement of the Defendants would be itself taken off the record and the defence is struck off.
11. A written statement is an important pleading which lays out the defence of the Defendant. So long as the affidavit of admission/denial is filed with the written statement, the common diary number cannot be insisted upon by the Registry. Thus, the repeated refiling could have been completely avoided. In such cases, the ld. Joint Registrar also ought to take a more pragmatic and a broader approach rather than striking off the defence of the Defendant. 
12. The impugned order is accordingly set aside. The written statement along with the affidavit of admission/denial is taken on record. The Plaintiff objects the same on the ground that no condonation of delay application was filed along with first filing itself because it was beyond 30 days.
13. The Court has seen the reasons given in the application for condonation of delay which merely appears to be a clerical error of filing the written statement and affidavit of admission/denial with two separate indices and with two separate diary numbers. The reasons stated in the application constitute a justifiable cause. A case is made out for condonation of delay has been made out. Accordingly, the written statement along with affidavit of admission/denial are taken on record.
14. The replication has been filed by the Plaintiff. Curiously enough, the Plaintiff has also filed its replication with a separate index than the affidavit of admission/denial. Both the written statement and the replication along with the respective affidavits of admission/denial be taken on record.
15. Appeal is disposed of.
CS(OS)-307/2022
16. List before the Joint Registrar for filing a document schedule on 27th May, 2024.
17. List before Court for framing of issues on 8th July, 2024 i.e., the date already fixed. On the said date, parties shall be present in Court.

PRATHIBA M. SINGH
JUDGE
APRIL 8, 2024
mr/rks

CS(OS) 307/2022 Page 2 of 2