Filing Written Statement In Prescribed Time Without Affidavit Of Admission/ Denial Of Documents Not 'Non-Est' Filing: Delhi High Court

The Delhi High Court has observed that the filing of a written statement within the prescribed time but without an accompanying affidavit of admission or denial of documents, does not amount to non-est filing since it cannot be said that nothing was filed at all.

Justice Anup Jairam Bhambhani further added that the same would however amount to a defect, that is required to be cured after it is brought to the attention of the party by the Registry.

"Chapter VII Rule 3 only bars taking on record a written statement that is filed without an accompanying affidavit of admission/denial of documents. Filing of the written statement and it being taken on record are two separate and distinct matters," the Court said.

The Court was dealing with an appeal filed under Chapter II Rule 5 of the Delhi High Court (Original Side) Rules, 2018 read with sec. 151 of the Civil Procedure Code, seeking setting aside of order dated 23.10.2020 passed by the Joint Registrar, declining to take the defendant's written statement on record.

The counsel appearing for the appellant submitted that it's written statement duly supported by affidavit was filed within 120 days of the receipt of summons; however, the affidavit of admission or denial of documents, which had also been directed to be filed along with the written statement, was not filed along therewith.

It was the appellant's case that the Joint Registrar had taken the view that since there was delay of at least three months in filing of the affidavit of admission/denial of documents, over-and- above the prescribed period of 120 days stipulated for filing of the written statement, which period was sacrosanct and could not have been extended, the written statement itself cannot be taken on record.

It was thus submitted that the written statement was filed within the time of 120 days prescribed under Order V Rule 1(1) and Order VIII Rule 1 CPC and that the only defect pointed-out subsequently was of not having filed the affidavit of admission/denial of documents alongwith the written statement; which was also cured within 19 days of it being pointed-out.

On the other hand, while admitting that the written statement was filed within the prescribed period of 120 days, the counsel appearing on behalf of the respondent submitted that such filing was non-est and defective.

"Upon a conspectus of the timelines as set-out above and in light of the provisions of the CPC as amended by the Commercial Courts, Commercial Division & Commercial Appellate Division Of High Courts (Amendment) Act, 2018 read in conjunction with the Delhi High Court (Original Side) Rules 2018, as also the judicial precedents referred to by the parties, this court is of the view that written statement having been filed within the statutory period; and the defect of non-filing of the affidavit of admission/denial also having been cured well within the permissible time period, nothing further stands in the way of the written statement being taken on record," the Court observed.

The Court reiterated that Order V Rule 1(1) and Order VIII Rule 1 of CPC provides for the outer time-limit for filing of the written statement of defence and that the filling by the defendant of an affidavit of admission or denial of the plaintiff's documents, is a separate requirement under Chapter VII Rule 3 and 4 of the Delhi High Court (Original Side) Rules, 2018.

The Court added that the consequence for not filing such affidavit is that the written statement shall not be taken on record and that the plaintiff's documents shall be deemed to be admitted by the defendant.

"As discussed above, in the present case, both the written statement as also the affidavit of admission/denial of documents were filled within prescribed, extended time-lines, except they were not filed together. Without getting into any other hypothetical questions, which do not arise in this case, the plaintiff's contention does not commend itself for acceptance," the Court said.

Accordingly, the Court set aside the impugned order.

Case Title: COSCO INTERNATIONAL PVT. LTD. v. JAGAT SINGH DUGAR

Citation: Citation: 2022 LiveLaw (Del) 362

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