What happens when written statement is filed without being accompanied by an affidavit of admission and denial in Commercial Suit?

The Delhi High Court has observed in the case of Cosco International Pvt Ltd. v. Jagat Singh Dugar, on its decision dated 06^th April, 2022, that the filing of a written statement within the prescribed time period and the defect of non-filing of the affidavit of admission/denial, if cured within the permissible time then nothing stands in the way of taking the written statement on record.

Legal Analysis:

A peek at Chapter IV Rule 3 of the Delhi High Court (Original Side) Rules, 2018 states that upon scrutiny if any defect is found in the pleadings or documents then the pleadings must be returned for removal of objections and a refiling must be done within a time not exceeding 7 days at a time and 30 days in aggregate. Pleadings filed beyond this period must be accompanied with an application for condonation of delay in re filing.

Cosco (India) Limited  versus Paramsukh Nirman Pvt Ltd. held that non filing of affidavit of admission and denial is a defect in the written statement  and for removing the defect there is a time period of thirty days. If the said defect is cured within thirty days, it cannot be held that the written statement and the affidavit of admission/denial cannot be brought on record.

Similarly in case of Sudhakar Singh & Anr. v. M/s Webkul Software Pvt Ltd wherein the court held that “A perusal of the summons which were issued shows that in the said summons, there is no mention of the defendants being called upon to file the affidavit of admission/denial along with the written statement. The summon was also not issued as per the format for commercial disputes notified by Delhi High Court on 27th November, 2015, which may be due to the fact that the said format applies only to the Original Side of the Delhi High Court. The summons in the district courts, insofar as they concern the Commercial Courts and commercial disputes, would be required to be amended in accordance with the Commercial Courts, Commercial Division and Commercial Appellate Division of the High Courts Act, 2015 (“Commercial Court Act, 2015”). Moreover, under Order VIII CPC as amended by the Commercial Courts Act, 2015 filing of the affidavit of admission/denial as applicable to Commercial Courts, is not compulsory. The filing of the affidavit of admission/denial has been made compulsory only in the Delhi High Court (Original Side) Rules, 2018. Thus, striking off the defence, despite the written statement being placed on record, on the ground that the affidavit of admission/denial was not filed is not tenable”

Also in the case of Robin Thapa  v. Rohit Dora the apex court held that the dispute to be decided on merits and not on default of the parties. It held that the cause of justice requires adjudication as far as possible to be done on merits.

Conclusion :

The non-filing of affidavit of admission and denial along with written statement is a defect that is required to be cured after it is brought to the attention of party by the Registry. The maximum time to fix the defect is thirty days from the day defect was pointed out.