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SHRI SATISH KUMAR SAKUJA vs M/S. APPOLO CRANES PVT. LTD. & ORS

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* IN THE HIGH COURT OF DELHI AT NEW DELHI

Pronounced on: 15.12.2023
+ CS(COMM) 41/2018
SHRI SATISH KUMAR SAKUJA ….. Plaintiff
Through: Mr. Amit Sethi, Mr. Arpit Goel and Ms. Ekadhana Sethi, Advs.
versus

M/S. APPOLO CRANES PVT. LTD. & ORS ….. Defendants
Through: Mr. Ajit Kumar Gola and Mr. Jitender Panchal, Advs.

CORAM:
HON’BLE MR. JUSTICE SACHIN DATTA

JUDGMENT

IA No.2154/2023 (filed on behalf of the defendants seeking condonation of delay in filing reply to the application under Order XIII-A Rule 1, 6 & 7 read with Section 151 CPC) and 19935/2022 (under Section 151 CPC, filed on behalf of plaintiff seeking closure of right of the defendants to file reply to IA No.10358/2022)

1. The facts relevant for the disposal of the present applications, briefly stated, are that the plaintiff has filed an application [IA. No. 10358 / 2022] under Order XIII-A of Code of Civil Procedure, 1908 (“CPC”) seeking a summary judgment. Vide order dated 08.07.2022, notice of the said application was issued and accepted by the defendants and the defendants were given four weeks’ time to file a reply. However, no reply came to be filed in the said time period. Vide order dated 11.10.2022, the defendants were granted a further period of two weeks to file a reply. No reply came to be filed even in this extended time period. On 25.11.2022, the present application [IA No. 19935/2022] came to be filed by the plaintiff seeking closure of the right of the defendants to file reply to the application under Order XIII-A of CPC. On 28.11.2022, reply to the application under Order XIII-A of CPC came to be filed on behalf of the defendants. Subsequently, on 01.02.2023, the present application [IA No. 2154/2023] under Section 5 of the Limitation Act, 1963 seeking condonation of delay of 32 days (calculated from expiry of two weeks from 11.10.2022) in filing reply to the application under Order XIII-A of CPC came to be filed by the defendants.

SUBMISSIONS OF THE PARTIES

2. Learned counsel for the plaintiff has submitted that the period of 30 days to file reply to the application under Order XIII-A, CPC, as prescribed under Sub-Rule 3 of Rule 4 thereof, is mandatory in nature. It is submitted that the same is evident from deliberate use of the words “whichever is earlier” by the legislature in the said sub-rule. It is submitted that “may” occurring in the said sub-rule should be read as “shall” to be in consonance with the objective behind the introduction of Order XIII-A, CPC, i.e., speedy redressal of commercial disputes. It is submitted that since the defendants have failed to file reply to the application of the plaintiff under Order XIII-A, CPC, within a period of 30 days from the date of receipt of notice of the said application, their right of file reply shall be closed. In support of his submissions, learned counsel for the plaintiff has placed reliance on Su-Kam Power Solutions Ltd. vs. Kunwer Sachdev &Anr., 264 (2019) DLT 326, Syrma Technology Pvt. Ltd. vs. Powerwave Techlonogy Sweeden AD (in bankruptcy), 2020 SCC Online Mad 5737, Siddhatha Singh vs. Ajit Singh Bawa (Deceased) through Lrs., 2022 SCC OnLine Del 2007, Bachahan Devi vs. Nagar Nigam, Gorakhpur, (2008) 12 SCC 372, Sarla Gael & Drs. vs. Kishan Chand, (2009) 7 SCC 658 and Surender Singh Deshwal @ Col.S.S. Deshwal & Drs vs. Virender Gandhi, (2019) 11 SCC 341
3. It is further submitted that Order XIII-A, CPC, by its language employed, has expressly barred the application of Section 4 to 24 of the Limitation Act, thereby rendering it impermissible for any application for condonation of delay to be filed, in view of Section 29(2) of Limitation Act. Reliance has also been placed on a judgement of the Supreme Court in Hukumdev Narain Yadav vs. Lalit Narain Mishra, (1974) 2 SCC 133, to contend that even where the special law does not exclude the provisions of Sections 4 to 24 of the Limitation Act by an express reference, it would nonetheless be open to the Court to examine whether and to what extent the nature of those provisions or the nature of the subject-matter and scheme of the special law, exclude their operation. It is submitted that applicability of Section 5 of Limitation Act to Order XIII-A, CPC would defeat the intention of legislature behind the introduction of Order XIII-A, CPC, i.e., speedy redressal of commercial disputes and therefore I.A No. 2154/2023 is liable to be dismissed in limine.
4. In reply to the I.A No. 2154/2023, on merits, learned counsel for the plaintiff submitted that there is no justification to condone the delay of 114 days (calculated from expiry of 30 days from 08.07.2022) in filing reply to IA No.10358/2022. It is submitted that the defendants’ assertion to the effect that their authorised representative (‘AR’) went for official work to Nepal on 18.08.2022 and came back to India on 29.10.2022 is untrue and contrary to the documents filed by them. Additionally, it is submitted that the medical documents filed by the defendants pertaining to the mother of the AR of defendant no. 1, go against the defendants inasmuch the same only refer to non-serious ailments, and the same cannot serve as a plausible reason for the delay in filing the reply in the present matter. The plaintiff further submits that the assertion with regard to medical problems of defendant no. 2 is not of such nature which could have prevented defendant no. 2 from getting the reply prepared.
5. Per contra, learned counsel for the defendants have submitted that the timeline prescribed under Order XIII-A, CPC, is directory in nature. It is submitted that if “shall” is read in place of “may” in the Sub-Rule 3 of Rule 4 of Order XIII-A, CPC, it will change the meaning and intent of the provision. It is further submitted that application of Section 5 of the Limitation Act is not excluded by the scheme of Order XIII-A, CPC and/or Commercial Courts Act. Reliance in this regard has been placed upon a judgment of the Supreme Court in State of Maharashtra vs. Borse Bros. Engineers & Contractors (P) Ltd., (2021) 6 SCC 460. It is submitted that legislature generally uses the phrase ‘not later than’ or ‘not thereafter’ to expressly exclude applicability of Section 5 of the Limitation Act, however, no such restrictive phrase is present in the concerned sub-rule. It is submitted that the intention of the legislature is to keep the limitation of 30 days flexible so that on sufficient cause being shown, the delay can be condoned.
6. In support of IA No.2154/2023, on merits, learned counsel for the defendants has submitted that there is sufficient cause to condone the delay in filing reply to IA No.10358/2022, which delay according to the defendants was bonafide, beyond the control of the defendants and was neither deliberate nor intentional. It is submitted that defendants were unable to file their reply within four weeks from 08.07.2022 due to the need to gather supporting documents from their old records and to obtain instructions from the defendant no.1 company. Additionally, the AR of defendant no.1 had to travel to Nepal on official work from 18.08.2022 to 29.10.2022. It is further submitted that reply could not be filed within two weeks from 11.10.2022, since the mother of the authorized representative of defendant no.1 became unwell, and required his care and attention, and she was ultimately admitted in hospital. Moreover, the CMD of the defendant no.1 company (impleaded as defendant no.2), who was personally involved in the matter, was unavailable to give instructions due to his medical ailments.
ANALYSIS AND FINDINGS
7. I have heard the parties and perused the record.
8. For ease of reference, Sub-Rule 3 of Rule 4 of Order XIII-A of CPC is reproduced hereunder:
“4. Procedure.— xx xx xx
(3) The respondent may, within thirty days of the receipt of notice of application of summary judgment or notice of hearing (whichever is earlier), file a reply addressing the matters set forth in clauses (a) to (f) mentioned hereunder in addition to any other matters that the respondent may deem relevant:—
(a) the reply must precisely–– (i) disclose all material facts; (ii) identify the point of law, if any; and (iii) state the reasons why the relief sought by the applicant should not be granted;
(b) in the event the respondent seeks to rely upon any documentary evidence in its reply, the respondent must— (i) include such documentary evidence in its reply; and (ii) identify the relevant content of such documentary evidence on which the respondent relies;
(c) the reply must state the reason why there are real prospects of succeeding on the claim or defending the claim, as the case may be;
(d) the reply must concisely state the issues that should be framed for trial;
(e) the reply must identify what further evidence shall be brought on record at trial that could not be brought on record at the stage of summary judgment; and
(f) the reply must state why, in light of the evidence or material on record if any, the Court should not proceed to summary judgment.”

9. Order XIII-A has been inserted in the CPC by Section 16 of the Commercial Courts Act. The said provision enables the Court to decide claims pertaining to any commercial dispute without recording oral evidence. A party may apply for summary judgment under Order XIII-A, CPC at any time after summons have been served on the defendant but before issues have been framed in the suit. Where a hearing for summary judgment is fixed, the non-applicant must be given at least 30 days’ notice of the date fixed for the hearing and the claim that is proposed to be decided by the Court at such hearing. In terms of Sub-Rule 3 of Rule 4 of Order XIII-A, CPC, the non-applicant may, within 30 days of the receipt of notice of application of summary judgment or notice of hearing (whichever is earlier), file a reply. The central issue that arises for consideration is whether the said period of 30 days to file reply by the non-applicant is mandatory in nature. In Siddhatha Singh (supra) and Syrma Technology (supra), it has been held that the parties have to mandatorily follow all the stipulations contained in Order XIII A, CPC. Further, as held in Bachahan Devi (supra), Sarla Gael (supra) and Surender Singh Deshwal (supra), use of word “may” in a section/rule can be read as “shall”, if the intention of the legislature is clear to that effect and is discernible from object and scheme of the Act, the context and background against which this word has been used, the advantages sought to be achieved by use of this word, and the like.
10. However, a plain reading of Sub-Rule 3 of Rule 4 of Order XIII-A, CPC, clearly brings out that the period of 30 days to file reply by the non-applicant is directory in nature. The same has been prescribed by the legislature more by way of procedure to streamline and regulate the disposal of the commercial suits. No penal consequence has been prescribed if the reply is not filed within the prescribed time. The said sub-rule is also silent on whether delay beyond this period can or cannot be condoned. The legislature generally uses the phrase ‘not later than’, ‘not thereafter’, ‘not exceeding’ or provides for a penal consequences to make the time period prescribed under a procedural provision, mandatory in nature. The said phrases are conspicuously absent from Sub-Rule 3 of Rule 4 of Order XIII-A, CPC. Additionally, use of word “may” in the said sub-rule supports the view that the said provision is directory in nature.
11. The principle that the rules of procedure are made to advance the cause of justice and not to defeat it, should guide the interpretation of Sub-Rule 3 of Rule 4 of Order XIII-A, CPC. An interpretation that promotes justice and prevents miscarriage has to be preferred. Procedural law is not to be a tyrant but a servant, not an obstruction but an aid to justice. Unless expressly mandated by statute, procedural enactments should not be interpreted in a way that prevents courts from addressing exceptional situations to meet the ends of justice. In fact, a wide discretion has been given to the civil court regarding the procedural elements of a suit. In the present case, the interpretation propounded by the petitioner would defeat the cause of substantive justice and cause serious general inconvenience. Therefore, the said sub-rule is held to be directory in nature.
12. In Kailash vs. Nanhku, (2005) 4 SCC 480, it has been held as under:
“28. All the rules of procedure are the handmaid of justice. The language employed by the draftsman of processual law may be liberal or stringent, but the fact remains that the object of prescribing procedure is to advance the cause of justice. In an adversarial system, no party should ordinarily be denied the opportunity of participating in the process of justice dispensation. Unless compelled by express and specific language of the statute, the provisions of CPC or any other procedural enactment ought not to be construed in a manner which would leave the court helpless to meet extraordinary situations in the ends of justice. The observations made by Krishna Iyer, J. in Sushil Kumar Sen v. State of Bihar [(1975) 1 SCC 774] are pertinent: (SCC p. 777, paras 5-6)
“The mortality of justice at the hands of law troubles a judge’s conscience and points an angry interrogation at the law reformer.
The processual law so dominates in certain systems as to overpower substantive rights and substantial justice. The humanist rule that procedure should be the handmaid, not the mistress, of legal justice compels consideration of vesting a residuary power in judges to act ex debito justitiae where the tragic sequel otherwise would be wholly inequitable. … Justice is the goal of jurisprudence — processual, as much as substantive.”

29. In State of Punjab v. Shamlal Murari [(1976) 1 SCC 719 : 1976 SCC (L&S) 118] the Court approved in no unmistakable terms the approach of moderating into wholesome directions what is regarded as mandatory on the principle that: (SCC p. 720)
“Processual law is not to be a tyrant but a servant, not an obstruction but an aid to justice. Procedural prescriptions are the handmaid and not the mistress, a lubricant, not a resistant in the administration of justice.”
In Ghanshyam Dass v. Dominion of India [(1984) 3 SCC 46] the Court reiterated the need for interpreting a part of the adjective law dealing with procedure alone in such a manner as to subserve and advance the cause of justice rather than to defeat it as all the laws of procedure are based on this principle.

30. It is also to be noted that though the power of the court under the proviso appended to Rule 1 Order 8 is circumscribed by the words “shall not be later than ninety days” but the consequences flowing from non-extension of time are not specifically provided for though they may be read in by necessary implication. Merely because a provision of law is couched in a negative language implying mandatory character, the same is not without exceptions. The courts, when called upon to interpret the nature of the provision, may, keeping in view the entire context in which the provision came to be enacted, hold the same to be directory though worded in the negative form.

31. In Sangram Singh v. Election Tribunal, Kotah [(1955) 2 SCR 1 : AIR 1955 SC 425] this Court highlighted three principles while interpreting any portion of CPC. They are:
(i) A code of procedure must be regarded as such. It is “procedure”, something designed to facilitate justice and further its ends: not a penal enactment for punishment and penalties; not a thing designed to trip people up. Too technical a construction of sections that leaves no room for reasonable elasticity of interpretation should therefore be guarded against (provided always that justice is done to “both” sides) lest the very means designed for the furtherance of justice be used to frustrate it. (SCR pp. 8-9)
(ii) There must be ever present to the mind the fact that our laws of procedure are grounded on a principle of natural justice which requires that men should not be condemned unheard, that decisions should not be reached behind their backs, that proceedings that affect their lives and property should not continue in their absence and that they should not be precluded from participating in them. Of course, there must be exceptions and where they are clearly defined they must be given effect to. (SCR p. 9)
(iii) No forms or procedure should ever be permitted to exclude the presentation of the litigant’s defence unless there be an express provision to the contrary. (SCR p. 9)”

13. In Kailash (supra), the Supreme Court also specifically considered whether Order VIII Rule 1 CPC (provision for filing of written statement), is mandatory or directory in nature. It was inter-alia held as under:
“46 ….
(iv) The purpose of providing the time schedule for filing the written statement under Order 8 Rule 1 CPC is to expedite and not to scuttle the hearing. The provision spells out a disability on the defendant. It does not impose an embargo on the power of the court to extend the time. Though the language of the proviso to Rule 1 Order 8 CPC is couched in negative form, it does not specify any penal consequences flowing from the non-compliance. The provision being in the domain of the procedural law, it has to be held directory and not mandatory. The power of the court to extend time for filing the written statement beyond the time schedule provided by Order 8 Rule 1 CPC is not completely taken away.

(v) Though Order 8 Rule 1 CPC is a part of procedural law and hence directory, keeping in view the need for expeditious trial of civil causes which persuaded Parliament to enact the provision in its present form, it is held that ordinarily the time schedule contained in the provision is to be followed as a rule and departure therefrom would be by way of exception. A prayer for extension of time made by the defendant shall not be granted just as a matter of routine and merely for the asking, more so when the period of 90 days has expired. Extension of time may be allowed by way of an exception, for reasons to be assigned by the defendant and also be placed on record in writing, howsoever briefly, by the court on its being satisfied. Extension of time may be allowed if it is needed to be given for circumstances which are exceptional, occasioned by reasons beyond the control of the defendant and grave injustice would be occasioned if the time was not extended. Costs may be imposed and affidavit or documents in support of the grounds pleaded by the defendant for extension of time may be demanded, depending on the facts and circumstances of a given case.”

14. In Salem Advocate Bar Assn. (II) vs. Union of India, (2005) 6 SCC 344, the Supreme Court inter alia held as under:
“17. In Raza Buland Sugar Co. Ltd. v. Municipal Board, Rampur [(1965) 1 SCR 970 : AIR 1965 SC 895] a Constitution Bench of this Court held that the question whether a particular provision is mandatory or directory cannot be resolved by laying down any general rule and it would depend upon the facts of each case and for that purpose the object of the statute in making out the provision is the determining factor. The purpose for which the provision has been made and its nature, the intention of the legislature in making the provision, the serious general inconvenience or injustice to persons resulting from whether the provision is read one way or the other, the relation of the particular provision to other provisions dealing with the same subject and other considerations which may arise on the facts of a particular case including the language of the provision, have all to be taken into account in arriving at the conclusion whether a particular provision is mandatory or directory.

18. In Sangram Singh v. Election Tribunal, Kotah [(1955) 2 SCR 1 : AIR 1955 SC 425] considering the provisions of the Code dealing with the trial of the suits, it was opined that: (SCR pp. 8-9)
“Now a code of procedure must be regarded as such. It is procedure, something designed to facilitate justice and further its ends: not a penal enactment for punishment and penalties; not a thing designed to trip people up. Too technical a construction of sections that leaves no room for reasonable elasticity of interpretation should therefore be guarded against (provided always that justice is done to both sides) lest the very means designed for the furtherance of justice be used to frustrate it.
Next, there must be ever present to the mind the fact that our laws of procedure are grounded on a principle of natural justice which requires that men should not be condemned unheard, that decisions should not be reached behind their backs, that proceedings that affect their lives and property should not continue in their absence and that they should not be precluded from participating in them. Of course, there must be exceptions and where they are clearly defined they must be given effect to. But taken by and large, and subject to that proviso, our laws of procedure should be construed, wherever that is reasonably possible, in the light of that principle.”

19. In Topline Shoes Ltd. v. Corpn. Bank [(2002) 6 SCC 33] the question for consideration was whether the State Consumer Disputes Redressal Commission could grant time to the respondent to file reply beyond the total period of 45 days in view of Section 13(2) of the Consumer Protection Act, 1986. It was held that the intention to provide a time-frame to file reply is really made to expedite the hearing of such matters and avoid unnecessary adjournments. It was noticed that no penal consequences had been prescribed if the reply is not filed in the prescribed time. The provision was held to be directory. It was observed that the provision is more by way of procedure to achieve the object of speedy disposal of the case.

20. The use of the word “shall” in Order 8 Rule 1 by itself is not conclusive to determine whether the provision is mandatory or directory. We have to ascertain the object which is required to be served by this provision and its design and context in which it is enacted. The use of the word “shall” is ordinarily indicative of mandatory nature of the provision but having regard to the context in which it is used or having regard to the intention of the legislation, the same can be construed as directory. The rule in question has to advance the cause of justice and not to defeat it. The rules of procedure are made to advance the cause of justice and not to defeat it. Construction of the rule or procedure which promotes justice and prevents miscarriage has to be preferred. The rules of procedure are the handmaid of justice and not its mistress. In the present context, the strict interpretation would defeat justice.

21. In construing this provision, support can also be had from Order 8 Rule 10 which provides that where any party from whom a written statement is required under Rule 1 or Rule 9, fails to present the same within the time permitted or fixed by the court, the court shall pronounce judgment against him, or make such other order in relation to the suit as it thinks fit. On failure to file written statement under this provision, the court has been given the discretion either to pronounce judgment against the defendant or make such other order in relation to the suit as it thinks fit. In the context of the provision, despite use of the word “shall”, the court has been given the discretion to pronounce or not to pronounce the judgment against the defendant even if the written statement is not filed and instead pass such order as it may think fit in relation to the suit. In construing the provision of Order 8 Rule 1 and Rule 10, the doctrine of harmonious construction is required to be applied. The effect would be that under Rule 10 Order 8, the court in its discretion would have the power to allow the defendant to file written statement even after expiry of the period of 90 days provided in Order 8 Rule 1. There is no restriction in Order 8 Rule 10 that after expiry of ninety days, further time cannot be granted. The court has wide power to “make such order in relation to the suit as it thinks fit”. Clearly, therefore, the provision of Order 8 Rule 1 providing for the upper limit of 90 days to file written statement is directory. Having said so, we wish to make it clear that the order extending time to file written statement cannot be made in routine. The time can be extended only in exceptionally hard cases. While extending time, it has to be borne in mind that the legislature has fixed the upper time-limit of 90 days. The discretion of the court to extend the time shall not be so frequently and routinely exercised so as to nullify the period fixed by Order 8 Rule 1.”

15. Subsequently, by virtue of Section 16 of the Commercial Courts Act, the legislature made certain amendments and insertions in the CPC. For instance, the legislature has used phrase “shall forfeit the right to file the written statement” and “the court shall not allow the written statement to be taken on record” in the amendments made to Order V and VIII, CPC, which provisions have been interpreted by the Supreme Court, in SCG Contracts (India) (P) Ltd. vs. K.S. Chamankar Infrastructure (P) Ltd., (2019) 12 SCC 210, in relation to commercial suits, as under:
“8. The Commercial Courts, Commercial Division and Commercial Appellate Division of High Courts Act, 2015 came into force on 23-10-2015 bringing in their wake certain amendments to the Code of Civil Procedure. In Order 5 Rule 1, sub-rule (1), for the second proviso, the following proviso was substituted:
“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 written statement on such other day, as may be specified by the court, for reasons to be recorded in writing and on payment of such costs as the court deems fit, but which shall not be later than one hundred twenty days from the date of service of summons and on expiry of one hundred and twenty 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.”
Equally, in Order 8 Rule 1, a new proviso was substituted as follows:
“Provided that where the defendant fails to file the written statement within the said period of thirty days, he shall be allowed to file the written statement on such other day, as may be specified by the court, for reasons to be recorded in writing and on payment of such costs as the court deems fit, but which shall not be later than one hundred and twenty days from the date of service of summons and on expiry of one hundred and twenty 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 was re-emphasised by re-inserting yet another proviso in Order 8 Rule 10 CPC, which reads as under:
“10. Procedure when party fails to present written statement called for by court.—Where any party from whom a written statement is required under Rule 1 or Rule 9 fails to present the same within the time permitted or fixed by the court, as the case may be, the court shall pronounce judgment against him, or make such order in relation to the suit as it thinks fit and on the pronouncement of such judgment a decree shall be drawn up:
Provided further that no court shall make an order to extend the time provided under Rule 1 of this Order for filing of the written statement.”
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.

xxx xxx xxx

11. We are of the view that the view taken by the Delhi High Court in these judgments is correct in view of the fact that the consequence of forfeiting a right to file the written statement; non-extension of any further time; and the fact that the Court shall not allow the written statement to be taken on record all points to the fact that the earlier law on Order 8 Rule 1 on the filing of written statement under Order 8 Rule 1 has now been set at naught.”

16. In New India Assurance Co. Ltd. vs. Hilli Multipurpose Cold Storage (P) Ltd., (2020) 5 SCC 757, the Supreme Court has held that the District Forum has no power to extend the time to file the response to the complaint beyond the period of 15 days in addition to 30 days as is envisaged under Section 13 of the Consumer Protection Act, 1986. In reaching the said conclusion, the Supreme Court observed as under:
“31. Now, while considering the relevant provisions of the Code, it is noteworthy that Order 8 Rule 1 read with Order 8 Rule 10 prescribes that the maximum period of 120 days provided under Order 8 Rule 1 is actually not meant to be mandatory, but only directory. Order 8 Rule 10 mandates that where written statement is not filed within the time provided under Order 8 Rule 1 “the court shall pronounce the judgment against him, or make such order in relation to the suit as it thinks fit”. A harmonious construction of these provisions is clearly indicative of the fact that the discretion is left with the Court to grant time beyond the maximum period of 120 days, which may be in exceptional cases. On the other hand, sub-section (2)(b)(ii) of Section 13 of the Consumer Protection Act clearly provides for the consequence of the complaint to be proceeded ex parte against the opposite party, if the opposite party omits or fails to represent his case within the time given.

xxx xxx xxx

33. Once consequences are provided for not filing the response to the complaint within the time specified, and it is further provided that proceedings complying with the procedure laid down under sub-sections (1) and (2) of Section 13 of the Consumer Protection Act shall not be called in question in any court on the ground that the principles of natural justice have not been complied with, the intention of the legislature is absolutely clear that the provision of sub-section (2)(a) of Section 13 of the Act in specifying the time-limit for filing the response to the complaint is mandatory, and not directory.”

17. If the intention of the legislature was to make the period of 30 days prescribed under Sub-Rule 3 of Rule 4 of Order XIII-A, CPC to be mandatory, nothing would have been easier than to use similar phraseology as used by the legislature in the amended Order V and VIII, CPC or provide for a penal consequences for not filing the response to the application within the time specified. As already stated above, Order XIII-A of CPC, inserted in the CPC by Section 16 of the Commercial Courts Act, conspicuously omits to do so.
18. Sub-Rule 3 of Rule 4 of Order XIII-A, CPC provides that reply has to be filed “within thirty days of the receipt of notice of application of summary judgment or notice of hearing (whichever is earlier)”. The expression “whichever is earlier” in the said sub-rule also does not indicate that the intention of legislature is to make the stipulated period of 30 days mandatory. The said expression only indicates the starting date, whether from receipt of notice of application of summary judgment or notice of hearing, from which stipulated period of 30 days has to be calculated.
19. Further, there is nothing in the scheme of the Commercial Courts Act to suggest that the intention of the legislature is to make the time limits prescribed in a particular section/rule (inserted/amended by the Commercial Courts Act) mandatory, in all the cases, without having regard to the phraseology used in that particular section/rule. In Borse Bros. Engineers & Contractors (supra), the Supreme Court considered whether it is permissible, by applying Section 5 of the Limitation Act, to condone the delay in the filing of the appeal under Section 13(1-A) of the Commercial Courts Act, which provision provides for a limitation period of 60 days from the date of the judgment or order appealed against, without further going into whether delay beyond this period can or cannot be condoned. It was held that the application of Section 5 of the Limitation Act is not excluded by the scheme of the Commercial Courts Act. It was held by the Supreme Court in that case as under:
“34. The vexed question which faces us is whether, first and foremost, the application of Section 5 of the Limitation Act is excluded by the scheme of the Commercial Courts Act, as has been argued by Dr George. The first important thing to note is that Section 13(1-A) of the Commercial Courts Act does not contain any provision akin to Section 34(3) of the Arbitration Act. Section 13(1-A) of the Commercial Courts Act only provides for a limitation period of 60 days from the date of the judgment or order appealed against, without further going into whether delay beyond this period can or cannot be condoned.

35. It may also be pointed out that though the object of expeditious disposal of appeals is laid down in Section 14 of the Commercial Courts Act, the language of Section 14 makes it clear that the period of six months spoken of is directory and not mandatory. By way of contrast, Section 16 of the Commercial Courts Act read with the Schedule thereof and the amendment made to Order 8 Rule 1 CPC, would make it clear that the defendant in a suit is given 30 days to file a written statement, which period cannot be extended beyond 120 days from the date of service of the summons; and on expiry of the said period, the defendant forfeits the right to file the written statement and the court cannot allow the written statement to be taken on record. This provision was enacted as a result of the judgment of this Court in Salem Advocate Bar Assn. (2) v. Union of India [Salem Advocate Bar Assn. (2) v. Union of India, (2005) 6 SCC 344].

36. In a recent judgment of this Court, namely, SCG Contracts (India) (P) Ltd. v. K.S. Chamankar Infrastructure (P) Ltd. [SCG Contracts (India) (P) Ltd. v. K.S. Chamankar Infrastructure (P) Ltd., (2019) 12 SCC 210 : (2020) 1 SCC (Civ) 237] , a Division Bench of this Court referred to the aforesaid amendment and its hard-and-fast nature as follows : (SCC pp. 214-15, paras 8-11)
“8. The Commercial Courts, Commercial Division and Commercial Appellate Division of High Courts Act, 2015 came into force on 23-10-2015 bringing in their wake certain amendments to the Code of Civil Procedure. In Order 5 Rule 1 sub-rule (1), for the second proviso, the following proviso was substituted:
‘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 written statement on such other day, as may be specified by the court, for reasons to be recorded in writing and on payment of such costs as the court deems fit, but which shall not be later than one hundred twenty days from the date of service of summons and on expiry of one hundred and twenty 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.’
Equally, in Order 8 Rule 1, a new proviso was substituted as follows:
‘Provided that where the defendant fails to file the written statement within the said period of thirty days, he shall be allowed to file the written statement on such other day, as may be specified by the court, for reasons to be recorded in writing and on payment of such costs as the court deems fit, but which shall not be later than one hundred and twenty days from the date of service of summons and on expiry of one hundred and twenty 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 was re-emphasised by re-inserting yet another proviso in Order 8 Rule 10 CPC, which reads as under:
‘10. Procedure when party fails to present written statement called for by court.—Where any party from whom a written statement is required under Rule 1 or Rule 9 fails to present the same within the time permitted or fixed by the court, as the case may be, the court shall pronounce judgment against him, or make such order in relation to the suit as it thinks fit and on the pronouncement of such judgment a decree shall be drawn up:
Provided further that no court shall make an order to extend the time provided under Rule 1 of this Order for filing of the written statement.’
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.
9. In Bihar Rajya Bhumi Vikas Bank Samiti [State of Bihar v. Bihar Rajya Bhumi Vikas Bank Samiti, (2018) 9 SCC 472 : (2018) 4 SCC (Civ) 387] , a question was raised as to whether Section 34(5) of the Arbitration and Conciliation Act, 1996, inserted by amending Act 3 of 2016 is mandatory or directory. In para 11 of the said judgment, this Court referred to Kailash v. Nanhku [Kailash v. Nanhku, (2005) 4 SCC 480] , referring to the text of Order 8 Rule 1 as it stood pre the amendment made by the Commercial Courts Act. It also referred (in para 12) to Salem Advocate Bar Assn. (2) v. Union of India [Salem Advocate Bar Assn. (2) v. Union of India, (2005) 6 SCC 344] , which, like the Kailash [Kailash v. Nanhku, (2005) 4 SCC 480] judgment, held that the mere expression “shall” in Order 8 Rule 1 would not make the provision mandatory. This Court then went on to discuss in para 17 of State v. N.S. Gnaneswaran [State v. N.S. Gnaneswaran, (2013) 3 SCC 594 : (2013) 3 SCC (Cri) 235 : (2013) 1 SCC (L&S) 688] , in which Section 154(2) of the Code of Criminal Procedure was held to be directory inasmuch as no consequence was provided if the section was breached. In para 22 by way of contrast to Section 34, Section 29-A of the Arbitration Act was set out. This Court then noted in para 23 as under : (Bihar Rajya Bhumi Vikas Bank Samiti case [State of Bihar v. Bihar Rajya Bhumi Vikas Bank Samiti, (2018) 9 SCC 472 : (2018) 4 SCC (Civ) 387] , SCC p. 489)
‘23. It will be seen from this provision that, unlike Sections 34(5) and (6), if an award is made beyond the stipulated or extended period contained in the section, the consequence of the mandate of the arbitrator being terminated is expressly provided. This provision is in stark contrast to Sections 34(5) and (6) where, as has been stated hereinabove, if the period for deciding the application under Section 34 has elapsed, no consequence is provided. This is one more indicator that the same Amendment Act, when it provided time periods in different situations, did so intending different consequences.’
10. Several High Court judgments on the amended Order 8 Rule 1 have now held that given the consequence of non-filing of written statement, the amended provisions of CPC will have to be held to be mandatory. See Oku Tech (P) Ltd. v. Sangeet Agarwal [Oku Tech (P) Ltd. v. Sangeet Agarwal, 2016 SCC OnLine Del 6601] by a learned Single Judge of the Delhi High Court dated 11-8-2016 in CS (OS) No. 3390 of 2015 as followed by several other judgments including a judgment of the Delhi High Court in Maja Cosmetics v. Oasis Commercial (P) Ltd. [Maja Cosmetics v. Oasis Commercial (P) Ltd., 2018 SCC OnLine Del 6698]
11. We are of the view that the view taken by the Delhi High Court in these judgments is correct in view of the fact that the consequence of forfeiting a right to file the written statement; non-extension of any further time; and the fact that the Court shall not allow the written statement to be taken on record all points to the fact that the earlier law on Order 8 Rule 1 on the filing of written statement under Order 8 Rule 1 has now been set at naught.”

37. By way of contrast, there is no such provision contained in Section 13 of the Commercial Courts Act. The judgment in Hongo [CCE v. Hongo (India) (P) Ltd., (2009) 5 SCC 791] , strongly relied upon by Dr George, is clearly distinguishable. In Hongo [CCE v. Hongo (India) (P) Ltd., (2009) 5 SCC 791] , Section 35-H of the Central Excise Act provided for a period of 180 days for filing a reference application to the High Court. The scheme of the Central Excise Act was adverted to in para 15 of the judgment, which reads as follows : (SCC p. 796)
“15. We have already pointed out that in the case of appeal to the Commissioner, Section 35 provides 60 days’ time and in addition to the same, the Commissioner has power to condone the delay up to 30 days, if sufficient cause is shown. Likewise, Section 35-B provides 90 days’ time for filing appeal to the Appellate Tribunal and sub-section (5) therein enables the Appellate Tribunal to condone the delay irrespective of the number of days, if sufficient cause is shown. Likewise, Section 35-EE which provides 90 days’ time for filing revision by the Central Government and, proviso to the same enables the revisional authority to condone the delay for a further period of 90 days, if sufficient cause is shown, whereas in the case of appeal to the High Court under Section 35-G and reference to the High Court under Section 35-H of the Act, total period of 180 days has been provided for availing the remedy of appeal and the reference. However, there is no further clause empowering the High Court to condone the delay after the period of 180 days.”

38. The Court then went on to observe : (Hongo case [CCE v. Hongo (India) (P) Ltd., (2009) 5 SCC 791] , SCC pp. 801-802, paras 33-36)
“33. Even otherwise, for filing an appeal to the Commissioner, and to the Appellate Tribunal as well as revision to the Central Government, the legislature has provided 60 days and 90 days respectively, on the other hand, for filing an appeal and reference to the High Court larger period of 180 days has been provided with to enable the Commissioner and the other party to avail the same. We are of the view that the legislature provided sufficient time, namely, 180 days for filing reference to the High Court which is more than the period prescribed for an appeal and revision.
34. Though, an argument was raised based on Section 29 of the Limitation Act, even assuming that Section 29(2) would be attracted, what we have to determine is whether the provisions of this section are expressly excluded in the case of reference to the High Court.
35. It was contended before us that the words “expressly excluded” would mean that there must be an express reference made in the special or local law to the specific provisions of the Limitation Act of which the operation is to be excluded. In this regard, we have to see the scheme of the special law which here in this case is the Central Excise Act. The nature of the remedy provided therein is such that the legislature intended it to be a complete code by itself which alone should govern the several matters provided by it. If, on an examination of the relevant provisions, it is clear that the provisions of the Limitation Act are necessarily excluded, then the benefits conferred therein cannot be called in aid to supplement the provisions of the Act. In our considered view, that even in a case where the special law does not exclude the provisions of Sections 4 to 24 of the Limitation Act by an express reference, it would nonetheless be open to the court to examine whether and to what extent, the nature of those provisions or the nature of the subject-matter and scheme of the special law exclude their operation. In other words, the applicability of the provisions of the Limitation Act, therefore, is to be judged not from the terms of the Limitation Act but by the provisions of the Central Excise Act relating to filing of reference application to the High Court.
36. The scheme of the Central Excise Act, 1944 supports the conclusion that the time-limit prescribed under Section 35-H(1) to make a reference to the High Court is absolute and unextendible by a court under Section 5 of the Limitation Act. It is well-settled law that it is the duty of the court to respect the legislative intent and by giving liberal interpretation, limitation cannot be extended by invoking the provisions of Section 5 of the Limitation Act.”

39. Unlike the scheme of the Central Excise Act relied upon in Hongo [CCE v. Hongo (India) (P) Ltd., (2009) 5 SCC 791] , there are no other provisions in the Commercial Courts Act which provide for a period of limitation coupled with a condonation of delay provision which is either open-ended or capped. Also, the period of 180 days provided was one indicia which led the Court to exclude the application of Section 5 of the Limitation Act, as it was double and triple the period provided for appeals under the other provisions of the same Act. Section 13(1-A) of the Commercial Courts Act, by way of contrast, applies an intermediate period of 60 days for filing an appeal, that is, a period that is halfway between 30 days and 90 days provided by Articles 116 and 117 of the Limitation Act.

40. The other judgments relied upon by Dr George are all distinguishable in that they are judgments which deal with provisions that provide for a period of limitation and a period of condonation of delay beyond which delay cannot be condoned, such as Section 125 of the Electricity Act. (See Suryachakra Power Corpn. Ltd. v. Electricity Deptt. [Suryachakra Power Corpn. Ltd. v. Electricity Deptt., (2016) 16 SCC 152 : (2017) 5 SCC (Civ) 761] at para 10; and ONGC v. Gujarat Energy Transmission Corpn. Ltd. [ONGC v. Gujarat Energy Transmission Corpn. Ltd., (2017) 5 SCC 42 : (2017) 3 SCC (Civ) 47] at paras 5-10.)

41. Section 21 of the Commercial Courts Act was also pressed into service stating that the non obstante clause contained in the Commercial Courts Act would override other Acts, including the Limitation Act, as a result of which, the applicability of Section 5 thereof would be excluded. This argument has been addressed in the context of the IBC in B.K. Educational Services (P) Ltd. v. Parag Gupta & Associates [B.K. Educational Services (P) Ltd. v. Parag Gupta & Associates, (2019) 11 SCC 633 : (2018) 5 SCC (Civ) 528] , as follows : (SCC p. 664, para 41)
“41. Shri Dholakia argued that the Code being complete in itself, an intruder such as the Limitation Act must be shut out also by application of Section 238 of the Code which provides that, ‘notwithstanding anything inconsistent therewith contained in any other law for the time being in force’, the provisions of the Code would override such laws. In fact, Section 60(6) of the Code specifically states as follows:
‘60. Adjudicating authority for corporate persons.—(1)-(5)***
(6) Notwithstanding anything contained in the Limitation Act, 1963 (36 of 1963) or in any other law for the time being in force, in computing the period of limitation specified for any suit or application by or against a corporate debtor for which an order of moratorium has been made under this Part, the period during which such moratorium is in place shall be excluded.’
This provision would have been wholly unnecessary if the Limitation Act was otherwise excluded either by reason of the Code being complete in itself or by virtue of Section 238 of the Code. Both, Section 433 of the Companies Act as well as Section 238-A of the Code, apply the provisions of the Limitation Act “as far as may be”. Obviously, therefore, where periods of limitation have been laid down in the Code, these periods will apply notwithstanding anything to the contrary contained in the Limitation Act. From this, it does not follow that the baby must be thrown out with the bathwater. This argument, therefore, must also be rejected.”

42. For all these reasons we reject the argument made by Shri George that the application of Section 5 of the Limitation Act is excluded given the scheme of the Commercial Courts Act.”
The aforesaid reasoning in Borse Bros. Engineers & Contractors (supra) applies to the present case as well.
20. In the circumstances, the time period of 30 days to file reply, prescribed in Sub Rule 3 of Rule 4 of Order XIII-A, CPC, is held to be directory in nature. Consequently, it is permissible to seek condonation of delay/ extension of time in filing the reply.
21. Having said so, the stipulated period of 30 days ought to be extended only by way of an exception on sufficient cause being shown and on suitable terms, including the payment of costs.
22. As already stated above, the delay in filing the reply can be condoned depending upon the facts of the case, as an exceptional measure. However, the court must be satisfied that there was due diligence on the part of the defendant. If there is negligence or inaction on the part of the defendant, the court would normally refrain from condoning delay/granting extension. Further, the application seeking condonation of delay has to be seen in light of the scheme of the Commercial Courts Act and in the context of the object of speedy resolution of disputes. The court may also impose costs on the defendant before condoning the delay for dual purpose: (i) to deter the defendant from seeking any extension of time as a matter of right, and (ii) to compensate the plaintiff for the delay and inconvenience caused to him [see: Kailash (supra)].
Whether sufficient cause has been shown by the defendants to condone the delay in filing the reply to application filed by the plaintiff under Order XIII-A, CPC?

23. In the present case, notice of the application under Order XIII-A, CPC was accepted by the defendants on 08.07.2022. The period of thirty days to file a reply expired on 08.08.2022. The reply eventually came to be filed on 28.11.2022. Therefore, there is a delay of 112 days in filing the reply. However, vide order dated 11.10.2022 this Court granted the defendants further time of two weeks to file a reply and thus it is contented by the defendants that there is delay of 32 days in filing the reply. Be that as it may, the defendants in IA 2154/2023 have sought to give justification for the delay for the period since 08.08.2022, and thus the entire delay has been sought to be justified.
24. In the present case, the inability of the defendants to file reply to the application of the plaintiff under Order XIII-A, CPC, beyond the statutory period of 30 days from 08.07.2022, is stated to be on account of the records being old. Further, the authorised representative of the defendant no.1 stated to have been in Nepal for about two months i.e. from 18.08.2022 till 29.10.2022. A copy of flight tickets has been placed on record. Further, the mother of the authorised representative of the defendant no.1 stated to have been unwell. To substantiate the said plea, certain medical documents pertaining to the months of October and November, 2022 have been placed on record. The defendant no.2, who is the CMD of defendant no.1, is also stated to have been afflicted by certain medical ailments. A copy of medical documents in respect of the said defendant for the months of October and November, 2022 has been placed on record.
25. Having considered the submissions made by learned counsel for the parties, the material placed on record and in the facts and circumstances of the present case, the application seeking condonation of delay is allowed; the delay in filing the reply to the application filed by the plaintiff under Order XIII-A, CPC is accordingly condoned; subject, however, to costs of Rs.50,000/- payable by the defendants to the plaintiff, latest within a period of four weeks. Let the reply be placed on record subject to payment of the said cost within the aforesaid period.
26. IA No.2154/2023 stands disposed of accordingly.
27. In view of the above, IA No. 19935/2022 stands dismissed.

DECEMBER 15, 2023/hg SACHIN DATTA, J

IA Nos.2154/2023 & 19935/2022 in CS(COMM) 41/2018 Page 1 of 24