M/S SANA FOOD PRODUCTS & ORS. vs M/S ASHWMEGH SPICES PVT. LTD

2024-04-01 Information

* IN THE HIGH COURT OF DELHI AT NEW DELHI

% Judgment reserved on: 24.01.2024
Judgment pronounced on: 01.04.2024

+ CM(M) 267/2022, CM APPL. 14464/2022–stay
M/S SANA FOOD PRODUCTS & ORS. ….. Petitioners
Through: Mr. B.N. Gaur, Adv.

versus

M/S ASHWMEGH SPICES PVT. LTD ….. Respondent
Through: Mr. Saurabh Sharma and Ms. Sonali Sharma, Advs.

CORAM:
HONBLE MS. JUSTICE SHALINDER KAUR

J U D G M E N T

1. The present petition has been preferred under Article 227 of the Constitution of India, assailing the Order dated 29.11.2021, passed by the learned District Judge, Commercial Court, Rohini, New Delhi (hereinafter referred as learned Trial Court) in CS(COMM) 190 of 2019 titled as M/s Ashwmegh Spices Pvt. Ltd. Vs M/s Sana Food Products (hereinafter Impugned Order) whereby the application filed by the petitioners under Order VIII Rule 1 read with Section 151 of the Code of Civil Procedure (hereinafter CPC) seeking condonation of delay in filing the written statement was dismissed. The petitioners herein are the defendants and the respondent herein is the plaintiff before the learned Trial Court, which is pending adjudication.
2. The petitioner no.1 is a partnership firm dealing in the business of food products such as Namkeen etc. The petitioners no.2 & 3 are partners in the petitioner no.1 firm. The respondent on the other hand deals in various spices.
3. The petitioners herein approached the respondent in the year 2017 at the office of the respondent company and expressed their interest in supplying goods to the respondent for consideration on various occasions. Subsequently, both the parties commenced business. It is pertinent to note that there was no written agreement between the parties and goods were supplied on an advance payment made by the petitioners. The respondent would dispatch the goods only upon receival of the advance payment of the petitioner.
4. The relationship between the parties became bitter when the petitioner complained to the respondent regarding the quality of items received by the petitioners, in lieu of invoice no. 435 dated 26.09.2017. The petitioner had informed the respondent regarding complaints received from its clients regarding the quality of the product. Thereafter, the respondent replaced the defected items as per invoice dated 26.09.2017 and raised another invoice bearing no. 612 dated 09.11.2017 amounting to Rs. 1,53,400/-. It is stated that the respondent ensured the petitioners that he would deduct the bill amount from the amount already paid by the petitioners.
5. The respondent did not adjust the amount as per invoice no. 612 towards the amount already paid by the petitioner despite repeated requests. However, the respondent proceeded to file a commercial suit under Commercial Court Act, 2015 (hereinafter the Act) for the recovery of Rs. 8,85,760/- along with the interest rate of 18% per annum bearing CS(COMM) 190 of 2019.
6. That on 21.11.2019, the counsel for the petitioner appeared before the learned Trial Court and sought time to file his Vakalatnama as well as written statement. On the same day, the petitioner made a request before the court, requesting a legible copy of the suit as the copy received by the petitioner along with the annexures was illegible. The learned counsel for the petitioners approached the counsel for the respondent to collect legible copies but to no avail. Thereafter, the petitioner applied for a certified copy of the suit, which was received by him on 09.12.2019.
7. It is further stated that the expiry period of 30 days from 09.12.2019 would be on 08.01.2020. However, due to the spread of the COVID-19 pandemic, the petitioners could not file the written statement within the stipulated period of time. On 15.10.2020, the petitioners filed their written statement along with an application for condonation of delay, which was dismissed, thus, the petitioners have approached this Court.
8. Learned counsel for the petitioners submitted that the impugned order is erroneous as the learned Trial Court failed to consider that the delay was not intentional but caused due to the lockdown in the country and non-functioning of the courts on account of Covid pandemic.
9. It is submitted that the period of 120 days as granted under Order VIII Rule 1 of the CPC expired on 05.04.2020, the time during which courts were not functioning and the Order of the Supreme Court in Suo Motu Writ Petition (Civil) No(S). 3/2020 was in operation. As per the mandate of Honble Supreme Court in the aforementioned judgment, the timeline for filing the written statement is to be extended and the application for condonation of delay was ought to be allowed by learned Trial Court. The petitioners further place reliance on Prakash Corporates Vs Dee Vee Projects Ltd (2022) 5 SCC 112.
10. Refuting the submissions, learned counsel for the respondent contended that the averment made by the petitioners stating that the limitation period would expire on 05.04.2020 is false. The summon of the suit was served to the petitioner no.2 & 3 in August 2019, as is apparent from service report dated 16.08.2019, when the summon issued to the petitioner no. 1 was returned with a report stating Refused.
11. It is also submitted that there was no request with regard to the supply of legible set of documents on behalf of petitioners, which is clear from the order dated 21.11.2019. The petitioners are malafidely concealing the date of service of summons to take benefit of judgment of Honble Supreme Court in Suo Motu Writ Petition (Civil) No(S). 3/2020.
12. The respondent submits that the written statement filed by the petitioners was supported by an affidavit attested on 04.03.2020, which makes it clear that the written statement was drafted prior to the lockdown. Further, the written statement was supported with an application under Section 151 of the CPC for condonation of delay dated 15.03.2020. It is reiterated that this application was supported by an affidavit dated 04.03.2020, which puts it out of the purview of the Supreme Court in Suo Motu Writ Petition (Civil) No(S).3/2020 , which condones the delay from 15.03.2020, thus, the learned Trial Court has rightly not accepted the written statement filed beyond period of 120 days.
13. Order VIII Rule 1 of the CPC is a procedural provision providing a timeline within which a written statement shall be presented and also restricts the power of the Court when the written statement is not filed within the said time limit. According to the provision, the written statement shall be filed by the defendant within 30 days from the date of service of summons, in case, he fails to do so, the time period for submitting the written statement can be extended upto 90 days from the date of service of summons, subject to reasons to be recorded in writing by the Court. Therefore, it would be necessary for the defendant to file an application to seek condonation of delay explaining sufficient reasons seeking extension of time after expiry of 30 days, maximum upto 120 days. In commercial suit, under no circumstance, can the Court condone a delay of 120 days from the date of service, allowing a party to file their written statement. Here, it is important to note the observations of the Honble Supreme Court in the case of M/s SCG Contracts India Pvt Ltd Vs K S Chamankar Infrastructure Pvt Ltd 2019 (12) SCC 210 wherein it is stated 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 farther 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 farther 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. ”

14. In the present case, the petitioner has based his arguments on the point that due to spread of COVID-19 pandemic, he could not file the written statement after 08.01.2020 till 15.10.2020 and that the time period got extended by virtue of the judgment of Honble Supreme Court in Suo Motu Writ Petition (Civil) No(S). 3/2020. According to the respondent, the petitioner no. 1 was duly served with the summons of the suit in August, 2019, when on 16.08.2019, the summons sent through registered post were refused on behalf of petitioner no. 1. Therefore, the timeline has to be reckoned from the date of service and not from the date of appearance of the petitioners for the first time before Court as stated by petitioners.
15. It is also the case of the petitioners that they were not provided with the legible copies of the suit and the annexures, which was brought to the notice of the learned Trial Court on 21.11.2019 and the counsel for the petitioners had also contacted the counsel for the respondent to collect legible copies, which were not furnished. Therefore, the petitioners had to apply for certified copies, which were made available to them on 09.12.2019, hence, the timeline for filing the written statement has to be reckoned from such date. As per respondent, the request for legible copies was never made by the petitioners before the learned Trial Court on 21.11.2019 and they are shielding actual facts by making false submissions.
16. The issue effectively relates to whether the petitioners have raised the submission before learned Trial Court on 21.11.2019 as to whether the copies were illegible and the reasons explained in the application seeking condonation of delay are sufficient to extend the timeline for filing the written statement. The learned Trial Court has dealt with issue of condonation of delay by making following observations:-
Considered. Record perused. From perusal of record, it is shown that vide order dated 22.12.2020, the Reader submitted that on 19.10.2020, the written statement of defendants alongwith the application under Section 151 CPC seeking condonation of delay in filing written statement was taken out and further, it is admitted by Learned counsel for the defendants that he had filed written statement on 15.10.2021.
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In view of the given facts and circumstances and in view of settled proposition of law, the delay in filing written statement cannot be condoned. Accordingly, the defence of the defendants is struck off.

17. Reading of the impugned order reveals that the learned Trial Court has not considered on merits, the petitioners application for condonation of delay. It has not considered when the petitioners were served, whether there was any request for legible copies, the exclusion of time due to COVID-19. Probably, the learned Trial Court proceeded on the premise that as the written statement was filed beyond 120 days, the written statement could not be taken on record.
18. Thus, it would be appropriate for the learned Trial Court to re-consider the matter. The impugned order dated 29.11.2021 is set aside. The matter is remanded back to learned Trial Court to reconsider the application seeking condonation of delay and to dispose of the same within two weeks from today.
19. Petition along with pending application accordingly stands disposed of.

SHALINDER KAUR, J.
APRIL 01, 2024/ss

CM(M) 267/2022 Page 8 of 8