By Tulip De and Kiratraj Sadana
The Hon’ble High Court of Delhi in a recent case NBCC (India) Ltd. v Aircon Engineering Services & Ors.[1] has clarified that the period of limitation for filing written statement in a commercial suit starts from the date of first service and not from the date of second service provided that the report by the bailiff shows that the first service was successful.
The order dated September 3, 2019 was passed by Hon’ble Ms. Justice Mukta Gupta of the High Court of Delhi in an appeal against an order passed by the Joint Registrar closing the right of the appellant (Defendant in the trial court), to file the written statement due to delay of 120 days.
Appellant’s Contention
The case of the Appellant/Defendant was that they were served on August 22, 2017 and its counsel was asked to appear on August 24, 2017. The Counsel for the said Defendant appeared before the Joint Registrar, Delhi High Court but was served with the paper book again after a few days. But on September 09, 2017, the said Defendant claimed that a few papers were missing from the paper book. Hence, the complete paper book was again served upon him on October 27, 2017. Finally, the written statement was filed by the said Appellant/Defendant on January 30, 2018.
Due to this, the Petitioner contended that the period of limitation should start from the date the complete paper book was supplied to the Defendant i.e. October 27, 2017.
In their condonation of delay application, the Defendant had cited a delay of 64 days (counting the period of limitation from October 27, 2017).
Respondent’s reply
The Respondent (the Petitioner in the original suit) countered the claim of the Appellant/Defendant by pointing out that the first service was made on June 16, 2017, the date documented on the bailiff’s report, and the complete paper book was provided to the Appellant on September 27, 2017.
Even after excluding the period of 21 days, the extended period of 120 days for filing the written statement was over much before January 30, 2018.
The Appellant/Defendant argued that there was no service upon him on June 16, 2018 and that the period of limitation should commence only from October 27, 2017 when the complete paperbook was purportedly served on him.
Court’s Observation
The Appellate Bench, Hon’ble Delhi High Court comprising of Pratibha M. Singh rejected the Appellant’s plea for condonation of delay by noting that the Appellant very conveniently did not mention the fact about the date of first service on June 16, 2017 in their plea for condonation. Moreover, the report of the bailiff showed that the first date of service was June 16, 2017. Therefore, there was no material to show that the complete paper book was not supplied to the Appellant on the first date of service.
The Court also relied on the Division Bench judgement of the High Court of Delhi in Frank Anthony Public School v Smt. Amar Kaur[2],wherein it was held that the leave to defend starts from the date of first service and not the second service.
Therefore, the Court dismissed the appeal and upheld the order of the Joint Registrar which rejected the Appellant’s application for condonation of delay
[1] CS(COMM) 232/2017
[2] Civil Revision (R) Petition No. 580/1983
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