The Delhi High Court in the recent matter of NBCC (INDIA) LTD vs. AIRCON ENGINEERING SERVICES & ORS. has held that period of limitation for filing a written submission in a commercial suit starts from the first service and not subsequent service dates if the bailiff’s report indicates successful service on the first occasion itself.
The order was passed by a Single Judge Bench of Justice Mukta Gupta in an appeal against an order passed by the Joint Registrar, closing the right of the appellant to file its written submission in a commercial suit.
The brief facts of the case are:
The appellant who was one of the defendants in a suit claimed that a notice was served to him on August 22nd, 2017, at Kolkata which requested it to appear before the Court on August 24th, 2017.
When the counsel for appellant appeared before the Joint Registrar, it was submitted that the paper book was not available with him as it was in Kolkata and thus time was granted to file the written statement.
After the paper book was received, the counsel for the appellant wrote a letter dated September 19th, 2017, revealing that a few pages therein were missing and thus requested learned counsel for the plaintiff to complete the missing documents.
Needful in this regard was admittedly done on October 27th, 2017.
The written statement was finally filed on January 30th, 2018, with explanation for the delay in filing the written statement beyond 30 days on receipt of the complete paper but within 120 days.
In the application seeking condonation of delay, the appellant stated that after the receipt of the complete paper book, comments were sought from the officials for preparation of written statement and in this regard meetings were held at Kolkata on November 15-16th, 2017 and January 16th, 2018.
Finally, after receiving proper comments by e-mail on January 19th, 2018, a written statement was prepared filed after a delay of 64 days.
The plaintiff in the suit contended that the appellant did not object nor asked for the complete paper book when he appeared before the learned Joint Registrar on August 24th, 2017. The request was made only on September 19th, 2017, after spending a substantial period of time.
It was further contended that a valid service of notice had been affected on the appellant on June 16th, 2017, and the same would be deemed to be with complete documents as no objection to the same was made on the first occasion.
The plaintiff thus stated that the extended period of 120 days for filing the written statement from June 17th, 2017, was over much before January 30th, 2018.
The Appellant argued that it was never served on June 16th, 2017, in spite of the bailiff’s report stating so.
The Appellant claimed that although he was served only on August 27th, 2017, the period of limitation would start from the day the complete paper book was supplied i.e. October 27th, 2017.
After hearing the parties, the Court recorded that the application seeking condonation of delay was completely silent on the first service.
However, on perusal of the record it was evident that the appellant was served on June 16th, 2017, by ordinary service through the bailiff, it said.
The Court also took note of a judgment of the High Court stating that the leave to defend starts from the first service when services from both the modes are mandated, and not from the second service.
Applying it to the present case, the Court thus opined that the appellant’s grievance with respect to incomplete paper book arose only on the second service through speed post. However, there was no material on record to come to the conclusion that the first service was affected by an incomplete paper book of the suit.
It thus held that the period of limitation began from the date of the first service on June 16th, 2017.