Gautam Gambhir Versus Jai Ambay Traders & Ors.
Court / Forum : Delhi High Court
Citation : CS(OS) 149/2018
Coram : Justice V. Kameshwar Rao
Subject : Rule 2(i) and Rule 4 of Chapter VII of the Delhi High Court (Original Side) Rules, 2018 (“Rules”)
Date of Decision : 2020-08-06
Brief Facts
- The Defendants filed an application for condonation of 131 days in filing the written statement.
- The Plaintiff argued that written statement had been filed beyond the period of 120 days from the date of service of the summons and as such, the same cannot be permitted to be taken on record. A reference was made to Rule 2(i) and Rule 4 of Chapter VII of the Rules in support of this contention. It was argued that Rules shall prevail over Order VIII Rule 1 of Code of Civil Procedure, 1908 (“CPC”) and the Rules clearly stipulate that the written statement needs to be filed within 120 days and not thereafter
- The Defendants argued that the limitation period of 120 days prescribed for filing of the written statement in an ordinary suit is not mandatory, and that the court on showing a sufficient cause can condone the delay.
Issues
- Whether written statement can be filed beyond the 120 days period prescribed in Rule 4 of Chapter VII of the Rules?
- Whether, for the purposes of condonation of delay in filing the written statement, the CPC shall prevail over the Rules?
Decision
- The Hon'ble High Court held that Rule 4 of Chapter VII of the Rules, contemplates extension of time for filing written statement beyond 30 days, for a ‘period not exceeding' 90 days ‘but not thereafter'. The Rules came into effect after the Commercial Courts Act was notified and it can very well be presumed that a total of 120 days (30+90) was granted for filing the written statement in the Rules, drawing spirit from the upper limit amongst the time periods provided in Order VIII Rule 1 and its proviso (applicable to commercial suits), to make it applicable to all suits filed in the Original Side of Delhi High Court.
- With respect to the second issue, the Hon'ble High Court held that Rules framed under Delhi High Court Act, which is a special law, will prevail over CPC and Commercial Courts Act. The Commercial Courts Act merely inserts amendments to the CPC. The CPC being general rule, will not prevail over the Delhi High Court Act and rules framed thereunder, which constitute a special law.
-
Accordingly, the Hon'ble High Court dismissed the application for condonation of delay.
Vipul Ganda is a Delhi based Advocate practicing largely at the Delhi High Court. His practice focus is Dispute Resolution and Litigation and his practice areas include Arbitration, Commercial, Civil, Constitutional, Corporate and Criminal Litigation.
