The Delhi High Court has held that even in the case of commercial suits the period of limitation for filing of the written statement shall start from the date of first service and not the second or any subsequent service.
The single bench of Justice Mukta Gupta also went on to hold that the report of the bailiff is to be relied upon for such determination despite the defendant being a government agency.
The present appeal was filed against the order of the Joint Registrar which did not allow the appellant to file a written submission in a commercial case due to the delay of 120 days.
In this case, a notice was first served by the bailiff to the Appellant on 16/06/17. However, as per the Appellants, they received the first service on 27/08/17. In response to the service, a letter was sent by the Appellant on 19/09/17 saying that few papers were missing from the paper book, hence, additional time was asked for filing the complete paper book.
Finally, the paper book was completed by 27/10/17 and eventually the written submission was filed on 30/01/18.
Therefore, the Petitioner had contended that the period of limitation would start from the day the complete paper book was supplied.
In their appeal, it was contended that the period of limitation should be counted from the day when the complete paper book was supplied, which was, 27/10/17. Moreover, the delay of 64 days was caused due the meetings held in November for taking the comments of certain stakeholders.
The Petitioners in the original case, countered the claims of the Appellant by pointing out that the first service was made on 16/06/17 and the same is proved from the entry made in the bailiff's report. It was also contended that when the Appellant had met the Joint Register on 24/10/17, no request was made for the complete paper book. That request was only forwarded on 19/09/17 through a letter.
Therefore, the case of Plaintiff in the present suit is that the Appellant cannot be allowed condonation for a delay of 120 days when the statutory time limit for filing the written submission is 30 days.
The Appellant, on the other hand, argued that there was no service made to him on 16/06/17 and that the period of limitation shall start from 27/10/17, when the complete paper book was supplied.
The court rejected the plea for condonation of delay by noting that the Appellant did not mention the fact about the first service, which was made on 16/06/17, in the plea for condonation. The report of the bailiff clearly shows the date of first service to be 16/06/17. Therefore, there's no material to show that a complete paper book was not supplied at the time of the first service.
In reaching its judgment, the court relied upon the rule laid down by the Division Bench of the High Court in Frank Anthony Public School Vs. Smt. Amar Kaur, Civil Revision (R) Petition No. 580/1983 which states that the leave to defend starts from the date of first service and not the subsequent service.
The court, therefore, upheld the order of the Joint Register which has rejected the condonation of delay.
The plaintiff was represented by Advocate Shilpi Chowdhary, Jasdeep Singh Dhillon.
The appellant was represented by Advocate Madan Gera.
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