LOUIS DREYFUS COMPANY INDIA PVT LTD  Vs NUTRILITE AGRO PRODUCTS PVT LTD -Judgment by Delhi High Court

$~6
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of Decision: 10th January, 2024
+ CS(COMM) 538/2020, I.As. 20524/2023 & 21327/2023
LOUIS DREYFUS COMPANY INDIA PVT LTD ….. Plaintiff
Through: Mr. Upinder Singh and Ms. Sharanya Bhatnagar, Advs. (M. 9810709402)
versus
NUTRILITE AGRO PRODUCTS PVT LTD ….. Defendant
Through: Ms. Shruti Sharma, Adv. (M. 9599314258)
CORAM:
JUSTICE PRATHIBA M. SINGH
Prathiba M. Singh, J. (Oral)
1. This hearing has been done through hybrid mode.
I.A.21327/2023 (for delay)
2. The present is a suit filed by the Plaintiff seeking damages as well as loss of profits from the Defendant on account of failure to complete contractual obligations dated 22nd October, 2020, regarding supply of Indian Origin Corn to Louis Dreyfus Company Asia Pte. Ltd (a sister company based in Singapore) . Earlier the suit was filed seeking specific performance and injunction against the Defendant, thereafter vide order dated 29th April, 2022 the plaint was amended to include damages and loss of profits.
3. This is an application for condonation of 164 days delay in filing the replication. The delay in filing the replication is admittedly more than 45 days.
4. Ld. Counsel for the parties have addressed the Court and have highlighted the relevant rules of the Delhi High Court (Original Side) Rules, 2018, which are set out below:
�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.
5. Replication.- The replication, if any, shall be filed within 30 days of receipt of the written statement. If the Court is satisfied that the plaintiff was prevented by sufficient cause for exceptional and unavoidable reasons in filing the replication within 30 days, it may extend the time for filing the same by a further period not exceeding 15 days but not thereafter. For such extension, the plaintiff shall be burdened with costs, as deemed appropriate. The replication shall not be taken on record, unless such costs have been paid/ deposited. In case no replication is filed within the extended time also, the Registrar shall forthwith place the matter for appropriate orders before the Court. An advance copy of the replication together with legible copies of all documents in possession and power of plaintiff, that it seeks to file along with the replication, shall be served on the defendant and the replication together with the said documents shall not be accepted unless it contains an endorsement of service signed by the defendant/his Advocate.
6. Affidavit of admission/denial of documents with replication.-Alongwith the replication, the plaintiff shall also file an affidavit of admission/ denial of documents filed by the defendant, without which the replication shall not be taken on record.
7. Affidavit of admission/ denial of documents, even if replication not filed.- Irrespective of whether the plaintiff files the replication or not, the plaintiff shall be bound to file affidavit of admission/ denial of documents filed by the defendant alongwith the written statement within the time permissible for filing replication. In case the plaintiff fails to file the said affidavit, the documents filed by the defendant shall be deemed to be admitted. The Court or the Registrar, as the case be, shall exhibit documents admitted by the parties.�

5. Ld. Counsel for the Plaintiff submits that the decision in Ram Sarup Lugani & Anr. v. Nirmal Lugani & Ors., (2021) 276 DLT 681 (DB) has been recently reconsidered in Amarender Dhari Singh v. R.C. Nursery Private Limited, 2023:DHC:150 as also in Charu Agrawal v. Alok Kalia & Ors., 2023 SCC OnLine Del 1238. The interplay between Rules 4 & 5 is now pending consideration before the Division Bench and, therefore, the order on this application may be deferred. He also prays that the affidavit of admission/denial filed with the replication may be taken on record.
6. Ld. Counsel for the Defendant on the other hand submits that the decision in Ram Sarup Lugani (Supra) is clearly applicable insofar as the replication is concerned, as it is governed by Rule 5. The other two decisions that are cited by the Plaintiff is related to interpretation of Rule 4 and not Rule 5. Thus, according to her, the decision in Ram Sarup Lugani (supra) is binding on this Court.
7. In terms of the Delhi High Court (Original Side) Rules, 2018, specific timelines have been fixed for filing of written statements and replication as contained in Rules 4 & 5 respectively. The decision in Ram Sarup Lugani (supra) leaves no manner of doubt that the maximum time limit available for filing of replication is 45 days. The relevant portion of the said judgment is set out below:
�21. A conspectus of the decisions referred to above leaves no manner of doubt that where ever the phrase “but not thereafter” has been used in a provision for setting a deadline, the intention of the legislature is to treat the same as a preemptory provision. Thus, if Rule 15 of the DHC Rules mandates filing of a replication within a period of 30 days reckoned from the date of receipt of the written statement, with an additional period of 15 days provided and that too only if the court is satisfied that the plaintiff has been able to demonstrate that it was prevented to do so by sufficient cause or for exceptional and unavoidable reasons, can the time for filing the replication be extended for a further period not exceeding 15 days in any event, with costs imposed on the plaintiff. The critical phrase “but not thereafter used in Rule 15 must be understood to mean that even the court cannot extend the period for filing the replication beyond the outer limit of 45 days provided in the DHC Rules. Upon expiry of the said period, the plaintiff’s right to file the replication would stand extinguished. Any other meaning sought to be bestowed on the above provision, would make the words “but not thereafter”, inconsequential.
22. The next contention of Mr. Mehta that the words “the Registrar shall forthwith place the matter for appropriate orders before the court” used in Rule 5 of the DHC Rules indicates that the court would still have the power to accept a replication filed beyond a period of 45 days, is also untenable. The Supreme Court has emphasized that the answer to the problem as to whether a statutory provision is mandatory or is directory in nature, lies in the intention of the law maker, as expressed in the law itself. The words “replication, if any, shall be filed within 30 days of the receipt of the written statement and further, the words “further period not exceeding 15 days, but not thereafter used in Rule 5 will lose its entire meaning if we accept the submission made on behalf of the appellants that even if the timeline for filing the replication cannot be extended by the Registrar, there is no such embargo placed on the court.
23. The court must start with the assumption that every word used in a statute, has been well thought out and inserted with a specific purpose and ordinarily, the court must not deviate from what is expressly stated therein. The period granted for filing the replication under Rule 15 of the DHC Rules is only 30 days and on expiry of 30 days, the court can only condone a delay which does not exceed 15 days over and above 30 days and that too on the condition that the plaintiff is able to offer adequate and sufficient reasons explaining as to why the replication could not be filed within 30 days. As observed earlier, since the terms ‘Court’ and ‘Registrar’ have been defined in the DHC Rules, Rule 5 requires that the court alone can extend the time to file the replication beyond the period of 30 days from the date of receipt of the written statement. Even the discretion vested in the court for granting extension of time is hedged with conditions and the outer limit prescribed is 15 days. If the replication is not filed within the extended time granted, the Registrar is required to place the matter back before the court for closing the right of the plaintiff to file the replication.�

8. The present is a commercial suit. The judgment of the Supreme Court in SCG Contracts (India) Pvt. Ltd. v. K.S. Chamankar Infrastructure Pvt. Ltd., 2019 12 SCC 210 also makes it clear that insofar as the written statement is concerned, the period of 120 days is mandatory. The issue in Amrendra Dhari Singh (supra) and in Charu Aggarwal (supra) is not in the context of the commercial suits. Thus, insofar as the present suit is concerned, it would be governed by the decision in Ram Sarup Lugani (supra), which has also not been interfered with by the Supreme Court. SLP (C) No.15142/2020 against the said judgment was dismissed on 28th June, 2021.
9. Insofar as the affidavit of admission/denial is concerned, since the Plaintiff is given the first opportunity to file the affidavit of admission/denial to the documents filed by the Defendant, by filing the same with the replication, in terms of Rule 7. The Original Side Rules prescribe that the same ought to be filed with the replication in terms of the timelines imposed therein. However, it needs to be noted that in Rule 7, the phrase �but not thereafter� is conspicuously absent. Thus, if sufficient cause is made out for belated filing in admission/denial affidavit, the same can still be condoned by the Court.
10. In the present case, a perusal of the reasons given for the delay would show that the Plaintiff is a subsidiary of foreign company Louis Dreyfus Company India Pvt. Ltd. to which the Plaintiff had to make payments on account of failure on part of the Defendant to supply the goods in terms of the Contract dated 22nd October, 2020. Damages have been sought by the Plaintiff in lieu of the above stated non-performance of contract and certain steps had to be taken in terms of the regulatory issues with the RBI etc. Thereafter, the Plaintiff approached the JP Morgan Bank and processed a SWIFT transfer to LDCA on 17th August, 2023, which took additional time, and accordingly the replication was filed on 11th July, 2023.
11. The admission/denial affidavit has been perused. A substantial number of documents have also been denied as per the said affidavit. In view of the reasons stated in the condonation of delay application, this Court is of the opinion that the delay in filing of affidavit of admission/denial deserves to be condoned, however, subject to costs of Rs.15,000/- to be paid to the Defendant. Accordingly, let the costs be paid within two weeks and the matter be listed before the Joint Registrar for completion of admission/denial.
12. The Application is disposed of.
I.A.20524/2023
13. By way of this application, the Plaintiff seeks to place on record certain additional documents. Ld. counsel for the Defendant objects to the documents being taken on record. Reply has not been filed on record, though the advance copy is stated to be served yesterday. Ld. counsel for the Defendant submits that she is ready to argue the application without reply.
14. This is an application for placing on record the additional documents on record. The said documents are as under:
A. Sale Contract entered between LDCA and the Plaintiff
dated 22.10.2020.
B. Email communications exchanged between the
Plaintiff and its holding company LDCA.
C. Letter dated 12.04.2021 from Kotak Mahindra to the
Plaintiff.
D. Email communications with the Authorized Dealer
Bank for remittance of the damages to LDCA.
E. Screenshot of NCDEX portal for price of maize on
22.10.2020.
F. Screenshot of NCDEX portal for price of maize on
03.12.2020.
G. Payment receipt of USD 5,10,000/- showing the swift
transfer details in favor of LDCA; and
H. Letter dated 05.04.2023 issued by the Reserve Bank of India (“RBI”) to the Authorized Dealer Bank of the Plaintiff to indicate the hurdles which it had faced in transferring the aforesaid payment to LDCA.

15. The Court has heard the parties. Without going into details of each of the documents, it is noticed that the date of plaint in this case, which was originally a suit for specific performance and thereafter a suit for damages is 29th November, 2020. The documents at serial numbers B, C, D, E, F, G and H are all subsequent to the original suit. Though there is an objection raised by the Defendant that the Plaintiff got an opportunity to file these at the time of amending the suit, considering that the same are subsequent documents, the same are taken on record.
16. Insofar as the contract dated 22nd October, 2020 is concerned, which is at serial no. A, there is no sufficient reason given for not filing the said contract along with the original suit or with the amended plaint. Accordingly, the said document shall not be treated as part of the record. All the remaining documents are taken on record. The affidavit of admission/denial be filed by the Defendant, in view of the order passed above, within four weeks.
17. Application is disposed of.
CS(COMM) 538/2020
18. List before the Joint Registrar for completion of admission/denial on 5th March, 2024, the date already fixed.
19. List before the Court on 20th May, 2024.

PRATHIBA M. SINGH
JUDGE
JANURARY 10, 2024/dk/ks

CS(COMM) 538/2020 Page 2 of 2