PRESTO STANTEST P. LTD. vs PACORR TESTING INSTRUMENTS P. LTD. & ORS.

$~28
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ CS(COMM) 817/2022
PRESTO STANTEST P. LTD. ….. Plaintiff
Through: Mr. Vikas Aggarwal, Adv.

versus

PACORR TESTING
INSTRUMENTS P. LTD. & ORS. ….. Defendants
Through: Mr. Shambhu Sharan and Ms. Sabah Iqbal Siddiqui, Advs.

CORAM:
HON’BLE MR. JUSTICE C. HARI SHANKAR

O R D E R (O R A L)
% 14.12.2023

I.A.6317/2023 (under section 151 of the CPC)

1.This is an application by the plaintiff under Section 5 of the Limitation Act for condonation of delay in filing replication in response to the written statement filed by the defendant.

2.Mr. Shambhu Sharan, learned counsel for Defendant 1 to 3 opposes the application. He submits that as the replication was filed beyond 45 days from the date of receipt of the written statement by the plaintiff, the delay cannot be condoned.

3.Admittedly, from the date of receipt of the written statement of the defendant, Rule 5[ 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 Page 24 of 71 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.] in Chapter VII of the Delhi High Court (Original Side) Rules, 2018 (“the Original Side Rules”) permits condonation of delay only for a maximum period of 15 days, beyond 30 days which is the normal period of limitation for filing a replication. The replication in the present case has been filed on 10 March 2023, which, Mr. Sharan submits, is 20 days beyond 45 days from the date when the defendant’s written statement was received by the plaintiff.

4.I had, on 5 April 2023, adjourned this matter in order to examine whether service of pleadings by e-mail constituted due service as per the Original Side Rules.

5.Mr. Sharan has drawn my attention to Practice Direction No. 68/Rules/DHC/2019 dated 3 December 2019 issued by Hon’ble the Chief Justice of this court which reads thus:
“While filing fresh suits/arbitration or other filings in the Ordinary Original Civil Jurisdiction of this Court, advance copy of paper book/filing wherever required to be served on the opposite party/counsel, may also be effected by e-mail and the same be accepted by the Registry as adequate proof of service, provided such suits/arbitration or other filings is accompanied with an affidavit of the filing counsel/party to the effect that the e-mail address at which e-mail has been sent is that of the concerned party/counsel and that the e-mail has been delivered and has not bounced back. The affidavit shall also set out the date and time of the e-mail sent and the e-mail address at which it has been sent. The e-mail shall also specify the actual date when the fresh filing is to be listed. In case there are defects and re-filings, the final filing to be accompanied with affidavit of service of e-mail of the fresh date of listing.”

6.Mr. Sharan submits that the aforementioned Practice Directions dated 3 December 2019 envisage service of advance copy of any filing, wherever required to be served, as sufficiently made on the opposite party, if the advance copy is sent by e-mail.

7.Admittedly, on 5 January 2023, counsel for the defendant had sent an e-mail to counsel for the plaintiff, attaching, therewith, a copy of the written statement. Mr. Agarwal, learned counsel for the plaintiff, acknowledges that the e-mail was indeed received by the plaintiff, and that it did not bounce back to the defendant.

8.Thus, submits Mr. Sharan, the written statement was served on the plaintiff on 5 January 2023. 5 January 2023 would, therefore, be the terminus a quo for reckoning the period of limitation for filing replication as provided in Rule 5 of Chapter VII of the Original Side Rules.

9.The contention of Mr. Vikas Aggarwal, learned counsel for the plaintiff is that the attachment to the e-mail dated 5 January 2023 could not be opened. Thus, he submits, was noted by the learned counsel for the plaintiff on 5 February 2023 following which learned counsel for the plaintiff addressed the following e-mail to the learned counsel for the defendant on 9 February 2023:
From: Vikas Aggarwal

vikas.aggarwa12005@gmail.com

Sent: 09 February 2023 18:24

To: Sabah sabah@singhania.in

“Subject: Presto Vs Paccor

This is in reference to the advance notice send to my client through email is not been able to access for the purposes that of Printout as there is some technical problem. In these circumstances please send the hardcopy of the documents file. Please ensure that the documents are to be send to us should have the coloured copy of the documents so that the same could be answered properly.

Please provide the documents at the earliest in my Chamber No 417, Block-I, New Delhi after calling my clerk at No
9899718229.”

10.Admittedly, in response to the above e-mail dated 9 February 2023 from counsel of the plaintiff to learned counsel for the defendant, the following response was sent by learned counsel for the defendant on the same day:
“Dear Sir,

In reference to your email below, it is surprising to note that despite the service of Written Statement along with list of documents, Reply to Application under Order 39 Rule 1&2, affidavit of admission/denial vide our email dated 22.12.2022 (copy attached), you are today writing to us that you are facing problem in accessing the same for the purpose of print out purportedly due to some technical problem.

We would like to point out for the sake of record that although after the initial effective service of the aforementioned documents on 22.12.2022, the subsequent service vide our email dated 05.01.2023 (copy attached) was only after removal of technical defect pointed out by the Registry of the Hon’ble Delhi High Court. The defects so pointed was not with respect to the merit / substance of the present case. It would also be worthwhile to point out that post service of the aforementioned documents, the matter came up for hearing on 10.01.2023 and 25.01.2023 before the Ld. Joint Registrar, Delhi High Court and on 01.02.2023 before the Court of HMJ C. Hari Shankar, Delhi High Court. However, no such objection as regards non-access to the document was conveyed to us / court on any of these dates. Since no rejoinder was filed on behalf of the Plaintiff on 01.02.2023 when the matter came up for hearing before the Hon’ble Court, you appeared on behalf of the Plaintiff and sought more time to file Rejoinder. The Hon’ble Court granted two more weeks as final opportunity to file rejoinder to the application. It appears that your below email is just a pretext to buy more time for filing the same.

Without prejudice to any objection available with us in law, we will provide you with hard copies of the documents tomorrow at the address mentioned in your email below.”

11.As undertaken towards the conclusion of the above e-mail, a hard copy of the written statement was provided by the defendant’s Counsel to plaintiff’s Counsel on 10 February 2023.

12.Mr. Aggarwal’s contention is that, within the maximum condonable period of 45 days, the plaintiff had communicated to the defendant that the attachment to the e-mail dated 5 January 2023 could not be opened. Accordingly, the period for filing limitation should be reckoned from 10 February 2023 on which date a hard copy of the written statements was supplied by defendant’s counsel to plaintiff’s counsel.

13.Apropos the Practice Directions dated 3 December 2019, Mr. Aggarwal advances the following contentions:

(i) The Practice Directions do not do away with the requirement contained in the Original Side rules for hard copies of all the pleadings to be served on the opposite parties. They only allow e-mail to be an additional mode of service. As such the time for filing an application would have to be reckoned from the date when the hard copy of the written statement was provided by the defendant to the plaintiff which was 10 February 2023.

(ii) The practice directions were issued in the context of Rule 14[ 14. Court’s power to dispense with compliance with the Rules. – The Court may, for sufficient cause shown, excuse parties from compliance with any requirement of these Rules, and may give such directions in matters of practice and procedure, as it may consider just and expedient.] in Chapter I of the Original Side Rules and could not, therefore, be of any consequence while implementing Rule 5 in Chapter VII of the same rules.

(iii) The practice directions only treated the date of dispatch of the advance copy of the documents which were to be filed by e-mail as the date of service of the documents. He submits that this was essentially in order for the court to be assured that the said filing took place within a period of limitation prescribed in that regard. There is a difference, submits Mr. Aggarwal between the date of service of the written statements for the purposes of reckoning whether the written statement was filed within time and the date of receipt of the written statement for the purposes of Rule 5 of Chapter VII of the Original Side Rules. The practice directions were issued in the context of filing of the written statement by the defendants and could not be treated as applicable to the period of limitation for filing replication by the plaintiff. The practice directions could not override Rule 5 in Chapter VII of the Original Side Rules.

14.Mr. Aggarwal submits that the judgment of Division Benches of this Court, which have examined the scope of Rule 5 in Chapter VII of the Original Side Rules also compute the period for filing of replication from the date of receipt of the written statement. Receipt of the written statement, he submits, would mean either receipt of a properly accessible email or receipt of the hard copy.

15.I have heard learned Counsel for both sides and perused the material on record.

16.Rule 5 in Chapter VII of the Original Side Rules requires a replication to be filed within 30 days of the receipt of the written statement. In case, the plaintiff is prevented, for exceptional and unavoidable reasons, in filing the replication within the said period of 30 days, the Court is empowered to extend time for filing the replication by a further period of 15 days, but not thereafter. Even where the such extension of 15 days is granted, the Rule states that the plaintiff would be burdened with costs, in default of payment of which the replication would not be taken on record.

17.A Division Bench of this Court has, in Ram Sarup Lugani v. Nirmal Lugani[ 276 (2021) DLT 681 (DB)], held that the provisions of Rule 5 in Chapter VII of the Original Side Rules are mandatory and would override the provisions in the CPC, as amended by the Commercial Courts Act. There is, therefore, no escape from the fact that the replication is required to be filed by the plaintiff within a maximum period of 45 days from the date of receipt of the written statement. Even a single day’s delay, beyond the said period of 45 days, is not condonable.

18.Besides, this is a commercial litigation. The Supreme Court has, in its judgment in Sudhir Kumar @ S. Baliyan v. Vinay Kumar G.B.[ 2021 SCC OnLine 734] held that periods of limitation, where prescribed, command strict adherence in commercial matters.

19.Mr. Sharan relies on the Practice Directions dated 3 December 2019.

20.The practice directions dated 3 December 2019 specifically cover “fresh suits/arbitration or other filings in the ordinary original civil jurisdiction of this Court”. The words “or other filings” are wide and compendious in their import. They would clearly include the written statement filed by way of response to the plaint as well.

21.The Practice Directions dated 3 December 2019 permit service of the written statement on the opposite party by email, and direct the Registry to accept the service thus effected as adequate proof of service, provided the defendant files an affidavit of the party or the Counsel to the effect that the email was sent to the correct address and that it has not bounced back. In the present case, it is not in dispute that the email dated 5 January 2023 was indeed addressed to the correct email ID of Counsel for the plaintiff, was received by him, and did not bounce back.

22.The practice directions, thus, cover two aspects. The first is the manner of advance service of the pleadings, prior to filing, on the opposite party/Counsel. The second relates to the directions issued to the registry in the matter of accepting the said email as adequate proof of service.

23.The first part of the Practice Directions clearly states that, where an advance copy of the filing is required to be served on the opposite party, such service may be effected by email. This is a distinct dispensation contained in the practice directions, distinct from the subsequent instructions which are to be followed while filing the email in the Registry of the court.

24.It cannot, therefore, be disputed that service of the written statement by the defendant on the plaintiff in the present case was effected by the email dated 5 January 2023.

25.The submission of Mr. Aggarwal that the Practice Directions have been issued in exercise of the power conferred on the Court by Rule 14 in Chapter I of the Original Side Rules has merely to be noted to be rejected. Rule 14 in Chapter I of the Original Side Rules empowers the Court, for sufficient cause, to excuse parties from compliance with the requirements of the Rules and to issue such directions, in matters of practice and procedure, as it may consider just an expedient. The Practice Directions dated 3 December 2019 do not excuse any party from compliance with the provisions of the Original Side Rules. They only stipulate the manner in which advance service of pleadings can be effected on the opposite party, by providing that sending of the pleadings by email, addressed to the correct address and which does not bounce back, can also be regarded as service. Inasmuch as these Practice Directions do not excuse anybody from complying with the Original Side Rules, Mr. Aggarwal’s submission that the Practice Directions have been issued in exercise of the power conferred by Chapter I Rule 14 of the Original Side Rules is obviously incorrect.

26.Mr. Aggarwal also sought to contend that the Practice Directions dated 3 December 2019 do not dispense with the requirement of service of hard copies of the documents on the opposite party. This contention, in my opinion, is not really relevant to the issue at hand.

27.The Court is concerned, in the present case, with the date on which the written statement filed by the defendant could be treated as having been received by the plaintiff. It is from that date that the plaintiff has with it a maximum period of 45 days to file a replication, by virtue of Rule 5 in Chapter VII of the Original Side Rules.

28.I am completely unable to comprehend Mr. Aggarwal’s submission that the practice directions dated 3 December 2019, even if they may be treated as fixing the date of dispatch of the email by the defendant to the plaintiff as the date of service of the written statement, cannot be treated as the date of receipt of the written statement by the plaintiff for the purposes of Rule 5 in Chapter VII of the Original Side Rules. It is not Mr. Aggarwal’s contention that the Original Sides Rules contain any other, distinct, definition of “receipt”. When one is dealing with emails, there is no hiatus between dispatch and receipt. To hold that the date when the defendant emailed the written statement to the plaintiff may be treated as the date of service of the written statement in view of the practice directions dated 3 December 2019, but cannot be treated as the date of receipt of the written statement by the plaintiff for the purposes of Rule 5 in Chapter 7 of the Original Side Rules would be cocking a snook at common sense. What Mr. Agarwal seeks to contend is that, though 5 February 2023 was the date of service of the written statement by the defendant on the plaintiff, it was not the date of receipt of the written statement by the defendant. Given the admitted position that the e-mail was sent by the defendant on 5 February 2023, and was received in the e-mail inbox of the defendant immediately, the dichotomy that Mr. Agarwal seeks to create between despatch of the written statement by the defendant, and receipt of the written statement by the plaintiff, is totally unsustainable in law.

29. If the e-mail sent by the defendant to the plaintiff on 5 January 2023 is entitled to be treated as amounting to service of the written statement on the plaintiff, it would equally amount to receipt of the written statement by the plaintiff for the purposes of Rule 5 in Chapter 7 of the Original Side Rules.

30.The only other contention that remains to be considered is that Mr. Aggarwal’s submission that attachment to the email dated 5 January 2023 could not be opened and that, therefore, the email could not be treated as proof of receipt of the written statement.

31.It is not in dispute that, though email sent by the defendant on 5 January 2023, it was only on 9 February 2023 that the plaintiff sent an e-mail in reply, stating that, the email could not be accessed “for the purposes of printout as there is some technical problem”. There is no reference, in this email to any difficulty in opening the attachment, attached to the email dated 5 January 2023. Even if there were, the plaintiff could hardly seek to take the benefit of the email dated 9 February 2023, having waited for over a whole month before objecting to the defendant’s email dated 5 January 2023 as suffering from a technical defect.

32.If such a submission were to be accepted, it would amount to doing away with the period of limitation envisaged in Rule 5 in Chapter VII of the Original Side Rules. It would then be open to a plaintiff, even on the 44th day, to send an email to the defendant, stating that he could not open the attachment of the defendant’s email enclosing the written statement, and, thereby, secure a further period of 45 days to file the replication. This is obviously impermissible.

33.The Court is also not prepared to take, at face value, the assertion, in the email dated 9 February 2023, that there was a technical difficulty in accessing the email dated 5 January 2023 from the defendant to the plaintiff. There is no explanation forthcoming as to why the plaintiff chose to try and to open the defendant’s email over a month after it had been dispatched to the plaintiff. The Court cannot discount the possibility of plea of a technical problem having intervened and prevented the plaintiff from accessing the defendant’s email was merely an afterthought so as to obtain further time to file a replication.

34.The sequitur is obvious. The email dated 5 January 2023 addressed by the defendant to the plaintiff has necessarily to be treated as proof not only of service of the written statement by the defendant to the plaintiff, but also of receipt of written statement by the plaintiff for the purposes of Rule 5 in Chapter VII of the Original Side Rules. The time for filing the replication, therefore, commenced on 5 January 2023. That time could not be extended by the belated email dated 9 February 2023 addressed by the plaintiff to the defendant. Admittedly, the replication came to be filed more than 45 days after 5 January 2023. In view of the mandatory nature of the time period envisaged in Rule 5 in Chapter VII of the Original Side Rules as interpreted by the Division Bench in Ram Sarup Lugani, it is not possible for this Court to condone the delay in filing the replication beyond 45 days from 5 January 2023, irrespective of the length of delay. The Court cannot be more generous than the legislature.

35.The application for condonation of delay is, therefore, dismissed.

36. The replication, if already on record, shall be taken off the record.

IA 19650/2022 (Order XXXIX Rules 1 and 2 of the CPC)

37. Pleadings in this application are complete.

38.List before the Court for disposal on 14 March 2024 at the end of the board. Interim orders to continue till the next date of hearing.

CS(COMM) 817/2022
39.List before the learned Joint Registrar (Judicial) for completion of the pleadings, admission and denial of documents and marking of exhibits on 16 January 2024, whereafter the matter would be placed before the Court for case management hearing and further proceedings.

C.HARI SHANKAR, J
DECEMBER 14, 2023
Pulkit /rb

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