Condonation of delay after deducting the days which were spent for the purpose of settlement

Delhi High Court: While dealing with a question relating to condoning of delay after deducting the days which were spent for the purpose of settlement, the Court held that deducting the number of days spent for the purpose of settlement can be considered sufficient reason to condone the delay.

In the present case, the plaintiff filed the suit for permanent injunction against the defendant to restrain violation and infringement of its rights in its 8 patents along with damages, rendition of accounts, delivery up etc. In furtherance of the court proceedings, a notice in the counter claim was issued by Court vide order dated 31st July, 2015 and a period of 8 weeks was given to the plaintiff to file its written statement. For 59 days, both the parties were negotiating. Thereafter, the plaintiff informed the Court that both the parties have not been able to resolve the matter. Later, an application was filed by the Defendant counsel that as per Section 16 read with Schedule I of the Commercial Courts Ordinance, a written statement filed after expiry of 120 days from the date of service of summons cannot be taken on record. Ms. Pratibha M. Singh, learned Senior counsel appearing on behalf of plaintiff submitted that the present suit was filed by the Plaintiff before the Original Side of this Court on 20th March, 2015 and now as per the Commercial Court Ordinance, the present suit stands transferred before the Commercial Division of this Court with effect from 15th November, 2015. Therefore, in the light of the proviso of Section 15 (4) of the Commercial Court Ordinance, this Court has the discretion to take on record the written statement filed by the plaintiff on 5th December, 2015 inasmuch as the timelines as laid down by the Commercial Courts Ordinance will become applicable to the present case from 15th November, 2015.

The Court while relying on Dr. Sukhdev Singh Gambhir v. Amrit Pal Singh, ILR (2003) I Delhi 577 held that since the parties were trying to resolve their dispute amicably and that process took 59 days, the said period is to be excluded from the period provided in the Civil Procedure Code and Clause 4D(i) of Commercial Courts Ordinance. The Court also held that the present suit squarely falls under the said exemption and therefore provides for extended timelines for completion of pleadings as per the prior statute. The Court also said that the prescribed period of 120 days’ timeline will be applicable in cases filed subsequent to the notification of the Ordinance and the same is not applicable in the present case. [Telefonaktiebolaget L.M Ericsson v. Lava International Ltd., 2015 SCC OnLine Del 13990, decided on December 9, 2015]

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