Delhi High Court
Walnut Pictures And Ors vs Rajyesh Patni on 21 January, 2025
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* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Reserved on: 13 December 2024
Pronounced on: 21 January 2025
+ CM(M) 3575/2024
WALNUT PICTURES AND ORS .....Petitioners
Through: Mr. Mohd. Umar and Mr.Kanav
Madnani, Advocates.
versus
RAJYESH PATNI .....Respondent
Through: Mr. Vishal Mann and Mr.
Jayant Tewetia, Advocates.
CORAM:
HON'BLE MR. JUSTICE RAVINDER DUDEJA
JUDGMENT
RAVINDER DUDEJA, J.
1. The present petition under Article 227 of the Constitution of
India impugns the order dated 21.05.2024, passed by the learned
District Judge, Commercial-06 (South East), Saket Court, New Delhi
in CS (COMM) 409/2023, titled as, “Rajyesh Kumar Patni vs. Walnut
Pictures & Ors”.
2. On 03.07.2023, the learned Trial Court issued directions for
issuance of summons to the petitioners and the matter was adjourned
for 03.10.2023.
3. On 03.10.2023, the attendance of counsel for petitioners stands
recorded in the order-sheet of the date.
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By:SUNITA KUMARI
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4. The petitioners did not file the Written Statement [hereinafter,
“WS”], and therefore, on the next date i.e. 09.11.2023, the right of the
petitioners to file the WS was closed in the light of law laid down by
the Hon’ble Supreme Court in SCG Contracts India Pvt. Ltd. vs.
K.S. Chamankar Infrastructure Pvt. Ltd. & Ors.
5. Petitioners tried to file the WS alongwith supporting affidavit,
statement of truth, affidavit of admission/denial and application for
condonation of delay on 28.11.2023. After removal of defects marked
by the Registry, fresh e-filing was done on 29.11.2023 and the
hardcopy of WS was filed in learned Trial Court on 30.11.2023.
6. The respondent took objection that the right of petitioners to file
the WS has already been closed, no application for review of order
dated 09.11.2023 having been filed, and the application for
condonation of delay in filing the WS is not maintainable. However,
the learned Trial Court rejected the contention of respondent stating
that the application for condonation of delay will also be treated as
application for review of order dated 09.11.2023.
7. Aggrieved by the decision of the learned Trial Court to entertain
the application of petitioners, respondent filed an application for
review.
8. Vide order dated 21.05.2024, the learned Trial Court disposed
of the review application dated 16.01.2024 filed by the respondent,
while taking the view that the application for condonation of delay
should not be dismissed only on the technical reason that separate
application for review of order closing the right to file the WS has not
been moved or prayer for review has not been made in the same
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application. However, the application of the petitioners under Order
VIII Rule 1 CPC was dismissed on the ground that there has been
deliberate delay on the part of the petitioners in filing the WS and the
intention appears to be to delay the matter as far as possible. The
learned Trial Court was of the view that WS was ready on 08.11.2023,
but the petitioners have failed to explain as to why they did not try to
file the WS through e-filing on 08.11.2023 itself. The relevant paras of
the order are extracted as under:-
“27. Ld. Counsel for the defendants has not explained as to why
the defendants did not try to file the WS through e-filing on
08.11.2023. Ld. Counsel has also not explained as to why she did
not inform the court on 09.11.2023 that the WS was ready. The WS
was verified at Mumbai and it might take some time for the hard
copy to arrive at Delhi but the e-filing could have been done and
the court could have been informed on 09.11.2023 that the WS was
ready.
28. Though, the WS was ready on 08.11.2023, the attempt to do
efiling was made only on 28.11.2023. There is no explanation as to
why it was not done earlier. On 28.11.2023 also the e-filing was
defective and it was ultimately rejected on 29.11.2023. After
removal of the defects, fresh e-filing was done on 29.11.2023 and
the hard copy was filed in the court on 30.11.2023. What could be
the reason if not the intention to delay the matter as much as the
defendants could. If we take the date of service as 20.08.2023, WS
has been filed after 99 days from the date of service. It is stated in
the application that the defendants belong to Mumbai and they
needed time to engage a counsel at Delhi and to gather the facts.
Even if this is accepted, there is no reason for the defendants not
moving an application for extension of time at least on 03.10.2023
when the Ld. Counsel for the defendants appeared and filed the
vakalatnama. I am of the view that the defendants have failed to
disclose any justifiable reason for not filing the WS within 30 days
from the date of service.
29. On the aspect of the approach at the time of considering the
prayer for condonation of delay Ld. Counsel for the defendants has
relied upon judgments by Hon’ble Supreme Court in Raheem Shah
& Ors. Vs. Govind Singh & Ors. MANU/SC/0829/2023 and
Ramlal Motilal and Chhotelal Vs. Rewa Coalfields Ltd.
MANU/SC/0042/1961.
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30. The observations made in Raheem Shah (supra) are in light of
the stand taken by the appellants that they were not aware of the
judgment and therefore, there was delay of 52 days in filing of the
appeal. The observations have to be applied according to the facts
of the case. In the present case, the defendants did not move
application for extension of time, did not inform the court that the
WS was ready and did not file the WS and application for
condonation/recall with alacrity. It has been held by Hon’ble
Supreme Court in C. Ronald Vs. UT Andaman & Nicobar Islands
(2011) 12 SCC 428 that judgments are not to be treated as Euclid’s
theorem and not to be read as enactments. In the present case there
has been deliberate delay on part of the defendants in filing the WS
and the intention appears to be to delay the matter as far as
possible. The judgment in Ramlal (supra) also does not help the
defendants as this is not a case of mere lack of diligence.”
9. Learned counsel for petitioners has submitted that petitioners
are based in Mumbai and that the WS was signed by Mr. Raj Roy,
Authorised Representative [‘AR’] and was notarized on 08.11.2023 in
Mumbai. However, due to inadvertent error, supporting affidavit of
WS, statement of truth, affidavit of admission/denial as well as
application for condonation of delay were not signed by Mr. Raj Roy
alongwith WS and as such, the same could not be e-filed on
08.11.2023. It is further submitted that AR of petitioners was not
available for signatures until 24.11.2023 due to professional
commitments and he could sign the relevant documents only on
24.11.2023, whereafter e-filing was done on 29.11.2023 and hard
copy was filed in Court on 30.11.2023.
10. It is submitted that even though the WS was ready on
08.11.2023, the same could not have been taken on record without
supporting affidavit of WS, statement of truth, affidavit of
admission/denial and application for condonation of delay, as
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mandated by law.
11. It is further submitted that petitioners have filed the WS within
the condonable period from the date of service of summons. It is
contended that petitioners had no intention to delay the trial and in the
alternative, the delay if any caused in filing the WS, can be
compensated with cost.
12. Per contra, learned counsel for respondent has submitted that
strict timelines are provided for adjudication of disputes of
commercial nature and that petitioners have not explained any
justified reason for not filing the WS within the stipulated period of 30
days. It has been further submitted that condonation of delay is not a
matter of course or right available to the petitioners to delay the filing
of WS without any justified reason.
13. The Commercial Courts Act, 2015 mandates filing of WS
within 30 days from the date of service of summons. Ordinarily, in
case of commercial disputes, the WS has to be filed within a period of
30 days. However, a further period of 90 days is granted which the
Court can employ for reasons to be recorded in writing and payment
of such cost as it deems fit to allow such WS to come on record. After
120 days from the service of summons, the defendants forfeits the
right to file the WS, and the Court can in no case allow the WS to be
taken on record.
14. The impugned order reveals that process fee was filed by the
respondent on 27.07.2023 and as per the report of Ahlmad, the
summons were issued on 28.07.2023. Mode by which summons were
dispatched is not available on record so much so the original postal
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receipts are also not on record. However, the register maintained by
the Ahlmad shows that summons were handed over to the Nazarat
branch on 31.07.2023 and the Registered Cover [‘RC’] was
dispatched on 17.08.2023.
15. Even though the petitioners claim that summons were served on
24/25.08.2023, the learned Trial Court assumed that petitioners must
have been served within 2-3 days from the date the RC was dispatched
i.e. 17.08.2023 and assumed the date of service to be 20.08.2023.
Admittedly, the WS was not filed within 30 days from the said date of
service of summons, but the same was filed before the expiry of
extended period of 90 days.
16. Dealing with the question of condonation of delay as provided
in the Limitation Act, 1963, this Court in the case of Ather Ali and
Anr vs. Mohd Shafi, (Deceased) Through AR Mohd. Akbar [2024
SCC Online Del 7495], laid down the principles as extracted below:-
” 6. The undisputed propositions of law, as culled out of various
judicial precedents are as follows. The condonation of delay cannot
be a matter of course and the same is a matter of discretion of the
court to be exercised in a judicious manner. Unless the explanation
furnished for the delay is wholly unacceptable or if no explanation
whatsoever is offered or if the delay is inordinate and third party
rights had become embedded during the interregnum, courts should
lean in favour of condonation. Not the length of delay but the
credibility of the explanation offered is the relevant factor where
the delay is not inordinate. The expression “sufficient cause” used
in Section 5 of the Limitation Act must receive liberal construction
so as to advance substantial justice when no negligence or inaction
or want of bonafides is imputable to a party. The sufficiency or
otherwise of the cause set up by the applicant in such cases has to
be tested by examining as to whether the applicant was prevented
from filing the appeal within time by factors beyond his control.
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By:SUNITA KUMARI
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6.1 In the case of Ramlal vs Rewa Coalfields Ltd., AIR 1962
SC 361, the Hon’ble Supreme Court of India observed thus :
“7. In construing Section 5(of the Limitation Act), it is
relevant to bear in mind two important considerations.
The first consideration that the expiration of the period
of limitation prescribed for making an appeal gives rise
to a right in favour of the decree holder to treat the
decree as binding between the parties. In other words,
when the period of limitation prescribed has expired,
the decree holder has obtained a benefit under the law
of limitation to treat the decree as beyond challenge
and this legal right which has accrued to the decree
holder by the lapse of time should not be light heartedly
disturbed. The other consideration which cannot be
ignored is that if sufficient cause for excusing delay is
shown discretion is given to the court to condone delay
and admit the appeal. This discretion has been
deliberately conferred upon the court in order that
judicial power and discretion in that behalf should be
exercised to advance substantial justice.”
6.2 In the case of Finolux Auto Pvt. Ltd. Vs Finolex Cables Ltd.,
136(2007) DLT 585(DB), a Division Bench of this Court held thus:
“6. In this regard, we may refer to a decision of the
Supreme Court in P.K. Ramachandran vs State of
Kerala, IV(1997) CLT 95 (SC). In the said decision, the
Supreme Court has held that unless and until a
reasonable or satisfactory explanation is given, the
inordinate delay should not be condoned. In para 6 of
the judgment, the Supreme Court has laid down in the
following manner :
“Law of Limitation may harshly affect a
particular party but it has to be applied with
all its rigour when the statute so prescribes
and the Courts have no power to extend the
period of limitation on equitable grounds.
The discretion exercised by the High Court
was, thus, neither proper nor judicious. The
order condoning the delay cannot be
sustained. This appeal, therefore, succeeds
and the impugned order is set aside.
Consequently, the application for
condonation of delay filed in the High Court
would stand rejected and the Miscellaneous
First Appeal shall stand dismissed as barred
by time. No costs.”
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By:SUNITA KUMARI
Signing Date:21.01.2025
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6.3 In the case of Pundlilk Jalam Patil (dead) by LRs vs Executive
Engineer Jalgaon Medium Project, (2008) 17 SCC 448, the Hon’ble
Supreme Court of India held that basically the laws of limitation
are founded on public policy and the courts have expressed atleast
three different reasons supporting the existence of statutes of
limitation, namely (i) that long dormant claims have more of
cruelty than justice in them, (ii) that a defendant might have lost the
evidence to dispute the stated claim, and (iii) that persons with
good causes of action should pursue them with reasonable
diligence. It was observed that the statutes of limitation are often
called as statutes of peace in so far as an unlimited and perpetual
threat of limitation creates insecurity and uncertainty which are
essential for public order.
6.4 In the case of Lanka Venkateshwarlu vs State of Andhra
Pradesh, (2011) 4 SCC 363, the Hon’ble Supreme Court of India
observed thus :
“19. We have considered the submissions made by the
learned counsel. At the outset, it needs to be stated that
generally speaking, the courts in this country including
this court adopt a liberal approach in considering the
application for condonation of delay on the ground of
sufficient cause under Section 5 of the Limitation Act”.
The concepts of “liberal approach” and “reasonableness” in the
exercise of discretion by the courts in condoning delay were
considered by the Hon’ble Supreme Court of India in the case
of Balwant Singh vs Jagdish Singh, (2010) 8 SCC 685, holding
thus :
“25. We may state that even if the term “sufficient
cause” has to receive liberal construction, it must
squarely fall within the concept of reasonable time
and proper conduct of the party concerned. The
purpose of introducing liberal construction is
normally to introduce the concept of
“reasonableness” as it is understood in its general
connotation.
26. The law of limitation is a substantive law and
has definite consequences on the rights and
obligations of party to arise. These principles should
be adhered to and applied appropriately depending
upon the facts and circumstances of a given case.
Once a valuable right has accrued in favour of one
party as a result of failure of the other party to
explain the delay by showing sufficient cause and its
own conduct, it will be unreasonable to take away
that right on the mere asking of the applicant,Signature Not Verified
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particularly when the delay is directly a result of
negligence, default or inaction of that party. Justice
must be done to both parties equally. Then alone the
ends of justice can be achieved. If a party has been
thoroughly negligent in implementing its rights and
remedies, it will be equally unfair to deprive the
other party of a valuable right that has accrued to it
in law as a result of his acting vigilantly.
27. ….
28. …. The concepts such as “liberal approach”,
“justice oriented approach” and “substantial justice”
cannot be employed to jettison the substantial law of
limitation. Especially in cases where the court
concludes that there is no justification of the
delay….”
6.5 In the expressions of this Court in the case of Shubhra Chit
Fund Pvt. Ltd. vs Sudhir Kumar, 112 (2004) DLT 609, too much
latitude and leniency will make provisions of the Limitation
Act otiose, which approach must be eschewed by courts. In the
case of Union of India vs C.L. Jain Woolen Mills Pvt. Ltd., 131
(2006) DLT 360, one of the arguments of the applicant Union of
India seeking condonation of delay in filing the appeal was that the
power to condone delay has been conferred to do substantial justice
and the court should adopt a liberal approach and the delay
resulting from official procedures should normally be condoned.
This Court rejected the argument, placing reliance on the judgment
in the case of P.K. Ramachandran and observed that although the
provisions under Section 5 Limitation Act have to receive liberal
construction, but the court cannot ignore the fact that where an
appeal gets barred by time, a definite right accrues to the opposite
party and such right should not be taken away in a routine manner
without disclosure of good and a sufficient cause for condonation
of delay.”
17. The Hon’ble Supreme Court in case of Esha Bhattacharjee vs.
Managing Committee of Raghunathpur Nafar Academy and Ors
[(2013) 12 SCC 649], after referring to the earlier decisions laid down
the following principles as extracted below:-
“”21.1 (i) There should be a liberal, pragmatic, justice-oriented,
non-pedantic approach while dealing with an application forSignature Not Verified
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condonation of delay, for the courts are not supposed to legalise
injustice but are obliged to remove injustice.
21.2 (ii) The terms “sufficient cause” should be understood in
their proper spirit, philosophy and purpose regard being had to the
fact that these terms are basically elastic and are to be applied in
proper perspective to the obtaining fact- situation.
21.3 (iii) Substantial justice being paramount and pivotal the
technical considerations should not be given undue and uncalled
for emphasis.
21.4 (iv) No presumption can be attached to deliberate causation
of delay but, gross negligence on the part of the counsel or litigant
is to be taken note of.
21.5 (v) Lack of bona fides imputable to a party seeking
condonation of delay is a significant and relevant fact.
21.6 (vi) It is to be kept in mind that adherence to strict proof
should not affect public justice and cause public mischief because
the courts are required to be vigilant so that in the ultimate
eventuate there is no real failure of justice.
21.7 (vii) The concept of liberal approach has to encapsule the
conception of reasonableness and it cannot be allowed a totally
unfettered free play.
21.8 (viii) There is a distinction between inordinate delay and a
delay of short duration or few days, for to the former doctrine of
prejudice is attracted whereas to the latter it may not be attracted.
That apart, the first one warrants strict approach whereas the
second calls for a liberal delineation.
21.9 (ix) The conduct, behaviour and attitude of a party relating to
its inaction or negligence are relevant factors to be taken into
consideration. It is so as the fundamental principle is that the courts
are required to weigh the scale of balance of justice in respect of
both parties and the said principle cannot be given a total go by in
the name of liberal approach.
21.10 (x) If the explanation offered is concocted or the grounds
urged in the application are fanciful, the courts should be vigilant
not to expose the other side unnecessarily to face such a litigation.
21.11 (xi) It is to be borne in mind that no one gets away with
fraud, misrepresentation or interpolation by taking recourse to the
technicalities of law of limitation.
21.12 (xii) The entire gamut of facts are to be carefully
scrutinized and the approach should be based on the paradigm of
judicial discretion which is founded on objective reasoning and not
on individual perception.
21.13 (xiii) The State or a public body or an entity representing a
collective cause should be given some acceptable latitude.
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22. To the aforesaid principles we may add some more guidelines
taking note of the present day scenario. They are: –
22.1 (a) An application for condonation of delay should be drafted
with careful concern and not in a half hazard manner harbouring
the notion that the courts are required to condone delay on the
bedrock of the principle that adjudication of a lis on merits is
seminal to justice dispensation system.
22.2 (b) An application for condonation of delay should not be
dealt with in a routine manner on the base of individual philosophy
which is basically subjective.
22.3 (c) Though no precise formula can be laid down regard being
had to the concept of judicial discretion, yet a conscious effort for
achieving consistency and collegiality of the adjudicatory system
should be made as that is the ultimate institutional motto.
22.4 (d) The increasing tendency to perceive delay as a non-serious
matter and, hence, lackadaisical propensity can be exhibited in a
non-challant manner requires to be curbed, of course, within legal
parameters.”
18. In view of the principles laid down by the Hon’ble Supreme
Court in the case of Esha Bhattacharjee (Supra), the application for
condonation of delay is not to be dealt in a routine manner. Yet there
should be a liberal, pragmatic, justice oriented and non-pedantic
approach while dealing with such an application and the Court has to
be mindful of distinction between inordinate delay and delay of short
duration.
19. In the case of Collector, Land Acquisition, Anantnag and
Anr vs Mst. Katiji and Ors [(1987) 2 SCC 107], the Hon’ble
Supreme Court laid down the approach that needs to be followed by
the hierarchy of the courts. The relevant principles laid down by the
Hon’ble Supreme Court are extracted below:-
“3. The legislature has conferred the power to condone delay
by enacting Section 5 of the Indian Limitation Act of 1963 in
order to enable the courts to do substantial justice to parties
by disposing of matters on “merits”. The expressionSignature Not Verified
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“sufficient cause” employed by the legislature is adequately
elastic to enable the courts to apply the law in a meaningful
manner which subserves the ends of justice – that being the
life-purpose for the existence of the institution of courts. It is
common knowledge that this Court has been making a
justifiably liberal approach in matters instituted in this Court.
But the message does not appear to have percolated down to
all the other courts in the hierarchy. And such a liberal
approach is adopted on principle as it is realized that:
1. Ordinarily a litigant does not stand to benefit by
lodging an appeal late.
2. Refusing to condone delay can result in a
meritorious matter being thrown out at the very
threshold and cause of justice being defeated. As
against this when delay is condoned the highest that
can happen is that a cause would be decided on
merits after hearing the parties.
3. “Every day’s delay must be explained” does not
mean that a pedantic approach should be made. Why
not every hour’s delay, every second’s delay? The
doctrine must be applied in a rational common sense
pragmatic manner.
4. When substantial justice and technical
considerations are pitted against each other, cause of
substantial justice deserves to be preferred for the
other side cannot claim to have vested right in
injustice being done because of a non-deliberate
delay.
5. There is no presumption that delay is occasioned
deliberately, or on account of culpable negligence,
or on account of mala fides. A litigant does not stand
to benefit by resorting to delay. In fact he runs a
serious risk.
6. It must be grasped that judiciary is respected not
on account of its power to legalize injustice on
technical grounds but because it is capable of
removing injustice and is expected to do so.
Making a justice-oriented approach from this perspective, there
was sufficient cause for condoning the delay in the institution of
the appeal. The fact that it was the “State” which was seeking
condonation and not a private party was altogether irrelevant. The
doctrine of equality before law demands that all litigants, including
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the State as a litigant, are accorded the same treatment and the law
is administered in an even-handed manner. There is no warrant for
according a step-motherly treatment when the “State” is the
applicant praying for condonation of delay. In fact experience
shows that on account of an impersonal machinery (no one in
charge of the matter is directly hit or hurt by the judgment sought
to be subjected to appeal) and the inherited bureaucratic
methodology imbued with the note-making, file-pushing and
passing-on-the-buck ethos, delay on its part is less difficult to
understand though more difficult to approve. In any event, the State
which represents the collective cause of the community, does not
deserve a litigant-non-grata status. The courts therefore have to be
informed with the spirit and philosophy of the provision in the
course of the interpretation of the expression “sufficient cause”. So
also the same approach has to be evidenced in its application to
matters at hand with the end in view to do even-handed justice on
merits in preference to the approach which scuttles a decision on
merits. Turning to the facts of the matter giving rise to the present
appeal, we are satisfied that sufficient cause exists for the delay.
The order of the High Court dismissing the appeal before it as time-
barred, is therefore, set aside. Delay is condoned. And the matter is
remitted to the High Court. The High Court will now dispose of the
appeal on merits after affording reasonable opportunity of hearing
to both the sides.”
20. Coming back to the present case, the Court finds that even
though the WS has not been filed within the stipulated 30 days period,
the same was filed within the extended window of 90 days. Petitioners
may not have explained each day’s delay, but have referred to various
factors which caused delay in filing the WS viz petitioners being the
residents of Mumbai had to arrange the advocate in Delhi for filing the
WS, unavailability of the AR to sign the statement of truth and other
documents for certain days.
21. The application for condonation of delay should have been
construed liberally so as to ensure that lis between the parties is
decided on merits rather than technicalities. The learned Trial Court
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should have adopted a pragmatic and justice oriented approach while
dealing with such application.
22. For the delay caused on account of the written statement not
having been in filed in 30 days time, petitioners could have been
subjected to cost.
23. Thus viewed, the impugned order dated 21.05.2024 is set aside
subject to petitioners paying to the respondent cost of Rs. 30,000/-
within two weeks from today. Upon payment of cost, the WS already
filed by the petitioners be taken on record.
24. The petition is accordingly disposed of alongwith pending
application in terms of aforesaid order.
RAVINDER DUDEJA, J.
JANUARY 21, 2025
vp
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