w w w . L a w y e r S e r v i c e s . i n



Red Bull AG V/S Pepsico India Holdings Pvt. Ltd. and Others.

    CS (COMM) 1092/2018

    Decided On, 28 August 2019

    At, High Court of Delhi

    By, THE HONORABLE JUSTICE: JAYANT NATH

    For Petitioner: Sanjeev Sindhwani, Senior. Advocate., Naqeeb Nawab, Gunjan Paharia, Himanshu Deora and Sashwat Rakshit, Advocates And For Respondents: A.S. Chandhiok, Senior. Advocate., Dheeraj Nair, Shruti Dass, Ritesh Singh and Tejashwi Chaudhry, Advocates.



Judgment Text


1. By this judgment I will decide the objection raised by the plaintiff, namely, that the written statement of the defendants cannot be taken on record and the same be taken off the record. It was agreed that the issue as to whether the written statement is filed within the limitation period may be adjudicated upon on the basis of the submissions made in court. There is no formal application on record by the defendant for condonation of delay in filing the written statement inasmuch as the stand taken by the defendant was that the summons had not yet been served on the defendant.

2. The above suit came up for the first hearing before this court on 28.08.2018. The defendants entered appearance on that date itself perhaps having seen the matter in the list on that date. Learned counsel for the plaintiff had requested for a short adjournment on the ground that there is a possibility of settlement between the parties.

3. On the next date when the matter came up i.e. on 24.09.2018, a submission was made by the learned counsel for the parties that they would like to try and settle the matter through mediation. Parties were directed to appear before the Delhi High Court Mediation and Conciliation Centre. However, the mediation proceedings failed on 28.11.2018. The defendants have filed their written statement on 06.03.2019. The issue urged by the plaintiff is that this written statement cannot be taken on record as 120 days have lapsed from the date of receipt of summons i.e. with effect from 28.08.2018 when the defendants entered appearance.

4. Learned senior counsel for the plaintiff has vehemently argued that the written statement filed by the defendants cannot be allowed to be taken on record as it is filed beyond the period of 120 days from the date summons were received by the defendants. He relies upon the judgment of the Supreme Court in the case of M/s. SCG Contracts India Pvt. Ltd. vs. K.S. Chamankar Infrastructure Pvt. Ltd. & Ors : 2019 (4) Scale 574 to support his contention that there is an absolute bar in taking the written statement on record as 120 days period has expired. He also relies upon the judgment of the Single Bench of this court in the case of OKU Tech Pvt. Ltd. vs. Sangeet Agarwal & Ors which judgment was upheld by the Supreme Court in the above noted judgment. He also relies upon the judgment of the Division Bench of this court in the case of Flight Centre Travels Pvt. Ltd. vs. Flight Centre Ltd. & Anr : 2013 (198) DLT 407 to contend that where the defendant has entered appearance at an initial stage without actual service of summons, there is a waiver of the right to have summons served on him. He also relies upon the judgment of the Supreme Court in the case of Siraj Ahmad Siddiqui vs. Prem Nath Kapoor, : AIR 1993 SC 2525 in support of the aforenoted contention.

5. Learned senior counsel for the defendant has relied upon various statutory provisions including Section 26, 27, Order IV, Order V. Rule 1 CPC and Order VII Rule 5 CPC to contend that the court has to pass an order to convert a plaint into a suit if the court finds that the plaint meets the stated requirement and then only summons are to be issued to the defendant. In the absence of a specific direction for issue of summons, it cannot be said that the summons have been issued/received by the defendant. He also relies upon Chapter IV Rule 7 and Chapter VI Rule 1(f) of the Delhi High Court Rules to reinforce the aforenoted contention. He also relies upon the judgment of the Division Bench of this Court in Bright Enterprises Pvt. Ltd. & Anr. vs. MJ Bizcraft LLP & Anr : 2017 (69) PTC 596 [Del] [DB].

6. I may look at the statutory provision in this regard. Order VIII Rule 1 CPC as applicable to commercial suits read as follows:-

"1. Written statement

[(1)] The defendant shall within 30 days from the date of service of summons on him present a written statement of his defence.

xxx

Provided that where the defendant fails to file the written statement within the said period of thirty days, he shall be allowed to file the written statement on such other day, as may be specified by the court, for reasons to be recorded in writing and on payment of such costs as the Court deems fit, but which shall not be later than one hundred and twenty days from the date of service of summons and on expiry of one hundred and twenty days from the date of service of summons, the defendant shall forfeit the right to file the written statement and the court shall not allow the written statement to be taken on record."

7. As per the aforenoted provision, the defendant within 30 days from the date of service of summons has to file his written statement. For commercial suits, in case the written statement is not filed within the said period of 30 days, he may be allowed to file the same on the conditions stated therein but not later than 120 days from the date of service of summons. On expiry of the said period of 120 days from the date of service of summons, the defendant's right to file the written statement stands forfeited.

8. The Supreme Court while interpreting the said provision i.e. Order VIII Rule 1 CPC in M/s. SCG Contracts India Pvt. Ltd. vs. K.S. Chamankar Infrastructure Pvt. Ltd. & Ors. (supra) held as follows:-

"8. xxx

A perusal of these provisions would show that ordinarily a written statement is to be filed within a period of 30 days. However, grace period of a further 90 days is granted which the Court may employ for reasons to be recorded in writing and payment of such costs as it deems fit to allow such written statement to come on record. What is of great importance is the fact that beyond 120 days from the date of service of summons, the defendant shall forfeit the right to file the written statement and the Court shall not allow the written statement to be taken on record. This is further buttressed by the proviso in Order VIII Rule 10 also adding that the Court has no further power to extend the time beyond this period of 120 days.

9.xxx

10. Several High Court judgments on the amended Order VIII Rule 1 have now held that given the consequence of non-filing of written statement, the amended provisions of the CPC will have to be held to be mandatory. [See Oku Tech Private Limited vs. Sangeet Agarwal & Ors. by a learned Single Judge of the Delhi High Court dated 11.08.2016 in CS (OS) No. 3390/2015 as followed by several other judgments including a judgment of the Delhi High Court in Maja Cosmetics vs. Oasis Commercial Pvt. Ltd)

11. We are of the view that the view taken by the Delhi High Court in these judgments is correct in view of the fact that the consequence of forfeiting a right to file the written statement; non-extension of any further time; and the fact that the Court shall not allow the written statement to be taken on record all points to the fact that the earlier law on Order VIII Rule 1 on the filing of written statement under 8 Order VIII Rule 1 has now been set at naught.

xxx

16. Learned counsel for the respondents then strongly relied upon the inherent powers of the Court to state that, in any case, a procedural provision such as contained in the amendment, which may lead to unjust consequences can always, in the facts of a given case, be ignored where such unjust consequences follow, as in the facts of the present case. We are again of the view that this argument has also no legs to stand on, given the judgment of this Court in Manohar Lal Chopra vs. Rai Bahadur Rao Raja Seth Hiralal : [1962] Suppl 1 SCR 450. In this judgment, the Court held:

"The suit at Indore which had been instituted later, could be stayed in view of s. 10 of the Code. The provisions of that section are clear, definite and mandatory. A Court in which a subsequent suit has been filed is prohibited from proceeding with the trial of that suit in certain specified circumstances. When there is a special provision in the Code of Civil Procedure for dealing with the contingencies of two such suits being instituted, recourse to the inherent powers 10 under s. 151 is not justified..." (at page 470)

Clearly, the clear, definite and mandatory provisions of Order V. read with Order VIII Rule 1 and 10 cannot be circumvented by recourse to the inherent power under Section 151 to do the opposite of what is stated therein."

9. In OKU Tech Pvt. Ltd. vs. Sangeet Agarwal & Ors. (supra), a Coordinate Bench of this court noted the relevant facts, namely, that on 27.11.2015, learned counsel for defendant Nos. 1 to 5 accepted summons and notice and therefore, that was the starting date for the purpose of calculating the period within which the written statement had to be filed. A plea was raised by the defendant that as the parties were seeking to arrive at a settlement, therefore, the failure to file the written statement was for a bona fide reason. This court had rejected the said plea and held as follows:-

"12. Mr. Mason appearing for Defendants 1, 3 and 5 pointed out that the parties were seeking to arrive at a settlement and, therefore, the failure to file written statement was for bona fide reasons and that the Court should exercise its discretion to condone the delay of 14 days, which according to him is insubstantial. The Court is unable to accept the above plea for the simple reason that the discretion of the Court to extend the time for filing written statement beyond 120 days after service of summons no longer survives in view of the amendments to the CPC brought about by the Schedule to the Act. The outer limit for filing written statement is now 120 days from the date of service of the summons.

10. Clearly, the legal position is quite clear. The defendant has 30 days to file written statement from the date summons are served on him. This period can be extended on grounds as stated upto 120 days and no more. On expiry of the said period of 120 days, the defendant forfeits his rights to file written statement.

11. The starting point for computing the period of limitation for filing the written statement is the service of summons on the defendant.

12. Regarding the issue of summons/service of summons reference may be had to the relevant statutory provisions of the CPC, namely, Section 26, 27, Order IV Rule 1 CPC, Order V. Rule 1 CPC and Order VII Rule 5 CPC which read as follows:-

"26. Institution of suits

Every suit shall be instituted by the presentation of a plaint or in such other manner as may be prescribed.

27. Summons to defendants

Where a suit has been duly instituted, a summons may be issued to the defendant to appear and answer the claim and may be served in manner prescribed."

"ORDER IV: INSTITUTION OF SUITS

1. Suit to be commenced by plaint

(1) Every suit shall be instituted by presenting a plaint in duplicate to the Court or such officer as it appoints in this behalf.

(2) Every plaint shall comply with the rules contained in Order VI and VII so far as they are applicable.

(3) The plaint shall not be deemed to be duly instituted unless it complies with the requirement specified in sub-rules (1) and (2).

xxx"

"ORDER V: ISSUE AND SERVICE OF SUMMONS

Issue of Summons

1. Summons

(1) When a suit has been duly instituted a summons may be issued to the defendant to appear and answer the claim and to file the written statement of his defence, if any, within 30 days from the date of service of summons on the defendant:

xxx

Provided further that where the defendant fails to file the written statement within the said period of 30 days, he shall be allowed to file the written statement on such other day, as may be specified by the court, for reasons to be recorded in writing and on payment on such costs as the Court deems fit, but which shall not be later than one hundred and twenty days from the date of service of summons and on expiry of one hundred and twenty days from the date of service of summons, the defendant shall forfeit the right to file the written statement and the court shall not allow the written statement to be taken on record.

xxx"

"ORDER VII

xxx

5. Defendant's interest and liability to be shown

The plaint shall show that the defendant is or claims to be interested in subject-matter, and that he is liable to be called upon to answer the plaintiff's demand.

xxx"

13. Reference may also be had to the Chapter IV Rule 7 and Chapter VI Rule 1 (F) of the Delhi High Court Rules which read as follows:-

"CHAPTER IV PRESENTATION OF PLEADINGS, OTHER DOCUMENTS AND MAINTENANCE OF CASE FILES

xxx

7. Issuance of summons.-Notwithstanding anything contained in the Code, the Court may, in the first instance itself, order issuance of summons/notices to opposite party by any or all modes of service provided in the Code and Rule 1(e) of Chapter VI of these Rules.

xxx"

"CHAPTER VI PROCESSES/NOTICES ETC.

(1) xxx

(f) The summons/notice shall specify the time within which the written statement/response is to be filed as per the Code or these Rules.

xxx"

14. A perusal of the aforenoted statutory provisions would show that when a suit is duly instituted summons may be issued to the defendant to appear and answer the claim. Hence, the court has to ensure that the suit has been duly instituted and thereafter the court may issue summons on the defendant.

15. Mulla on CPC, 18th Edn. while interpreting Order 5 Rule 1 CPC states as follows:-

"Under this rule, it is obligatory to issue summons to defendant unless the case falls within the proviso. When a party is sought to be impleaded in a legal proceedings, service of notice on such party cannot be a mere formality but should in fact be a reality."

16. In this background the Division Bench of this court in the case of Bright Enterprises Pvt. Ltd. & Anr. Vs. MJ Bizcraft LLP & Anr. (supra) held as follows:-

"17. From the above and particularly upon examining the provisions of Section 27 and Order V. Rule 1(1) CPC, it is evident that when a suit is regarded as having been 'duly instituted', a summons may be issued to the defendant. The use of the expression 'duly instituted' has to be seen in the context of the provisions of Orders Order VI, RULE 1 and VII of the CPC. In the present matter, it is nobody's case that the suit had not been duly instituted in the sense that it did not comply with the requirements of Order Order VI, RULE 1and VII CPC. It is neither a case of return of a plaint under Order VII Rule 10 nor a case of rejection of a plaint under Order VII Rule 11 CPC. The present case is one of dismissal of the suit itself on merits. Therefore, the only thing that needs to be examined is whether the Court had a discretion to issue or not to issue summons given that the suit had been duly instituted. In our view, the use of the word 'may' does not give discretion to the Court and does not make it optional for it to issue summons or not. This is further fortified by the fact that the first proviso to Order V. Rule 1(1) itself gives a situation where summons must not be issued and that happens when a defendant appears at the presentation of the plaint and admits the plaintiffs claim. Therefore, in such a situation, there is no requirement for issuance of summons and that is why the word 'may' has been used in Order V. Rule 1(1). In all other cases, when a suit has been duly instituted' and is not hit by either Order VII Rule 10 or Order VII Rule 11 CPC, summons has to be issued to the defendant.

(emphasis added)

18. In the present case, the learned Single Judge has neither returned the plaint under Order VII Rule 10 nor rejected the plaint under Order VII Rule 11 CPC. Therefore, it was incumbent upon the learned Single Judge to have issued summons to the respondents/defendants, particularly because the respondents/defendants had not appeared at the time of presentation of the plaint and did not admit the claim of the appellants/plaintiffs. The Rule of audi alteram partem is embedded in Order V. Rule 1 sub-rule (1) read with Section 27 CPC."

17. Hence, it is quite clear that once a suit is stated to have been duly instituted and the suit is not hit by Order 7 Rule 10 or Order 7 Rule 11 CPC, the suit fulfils the stated requirement. Summons have to then be issued to the defendant thereafter.

18. Factual position in this case is a bit different.

19. On 28.08.2018 i.e. the first date, this court passed the following order:-

"Learned counsel or the plaintiff submits that there is a possibility of settlement between the parties. He requests for a short adjournment.

At request, adjourned to 24.09.2018."

20. Thereafter, the court passed the following orders on 24.09.2018, 05.12.2018 and 13.12.2018:

"24.09.2018

The learned counsel for the parties submit that they would like to try and settle the matter through mediation.

Let the parties appear before the Delhi High Court Mediation and Conciliation Centre, New Delhi on 04.10.2018 at 3:00 p.m.

As this matter pertains to the trademark, the mediation centre may consider engaging a mediator conversant with the field of IPR.

List in court on 13.12.2018.

05.12.2018

IA No. 16620/2018

This application is filed under section 151 CPC for early hearing of arguments. Learned counsel for the plaintiff submits that the matter is fixed to await the outcome of the Settlement process on 13.12.2018. However, he submits that the settlement talks have failed and hence he would like to argue the injunction application on 13.12.2018.'

Prayer to the above extent is allowed.

Application stands disposed of.

13.12.2018

No time left.

List on 30.01.2019."

Clearly, there is no formal order issuing summons to the defendants or directing the defendants to file written statement. This was so as firstly the parties were exploring the possibility of a settlement on the request of the plaintiff and thereafter on joint request before the Delhi High Court Mediation and Conciliation Centre.

21. The issue is when the defendant enters appearance on being informed about pendency of the matter through sources other than the service of formal summons can it be said that the period of limitation for filing written statement does not commence till a formal order is passed directing issue of summons/directing the defendant to file written statement. In my opinion, such an interpretation would not be possible.

22. In this context, reference may be had to the judgment of the Supreme Court in the case of Siraj Ahmad Siddidiqui vs. Prem Nath Kapoor : AIR 1993 SC 2525. I may note the facts of the aforesaid case. The trial court had issued notice to the appellant requiring him to file a written statement by a particular date and a date was also given for framing of issues. The appellant was not served and the matter was directed to be stand over till the date fixed for framing of issues. However, before the next date the appellant filed an application before the trial court stating that he had not been served and sought a suitable date for filing the written statement and for deposit of all the arrears of rent claimed. He also sought a copy of the plaint. The appellant made a deposit in the trial court of the arrears. It was in those facts that the Supreme Court held as follows:-

"14. We must now consider the judgment of the Allahabad High Court in Sri Nath Aggarwal's case from which support has been derived in the claims is, in fact, in his favour. In the court below the case of the defendant therein was that since he had deposited the entire amount before the first date of hearing he was entitled to the protection of Section 20(4) of the said Act, but this contention was rejected and the defendant filed a revision application before the High Court. It was argued on his behalf that, admittedly, no summons had been issued and, therefore, he had not been given the opportunity of taking the benefit of Section 20(4) of the said Act by depositing the requisite monies on or before the first date of hearing. The defendant had, admittedly, deposited the entire amount due from him on 24th October, 1978, which was the first date when the court applied its mind and this should be treated as the date of the hearing of the suit. Prior to this date no other date had been fixed for the hearing of the suit. Notice was taken of the provisions of Section 20(4) of the said Act and the Explanation thereto defining the expression first hearing. The High Court said that if the defendant appears before the court after the registration of the suit and he is informed about the nature of the claim and the date, fixed for reply thereto, the defendant must be deemed to have waived the right to the summons served on him. The same legal position would arise when a defendant suo moto appeared before the court before the actual service of the summons. In such a case, if some date was fixed for filing the written statement or for the hearing of the suit it would be too technical to hold that service of the summons in the ordinary course was till required and that further proceedings in the suit would take place only thereafter. The High Court concluded (in para 10) by holding that when the order was passed on 11th September, 1978 in the presence of counsel for the defendant fixing the date for filing of the written statement and the date for the final hearing, the summons was issued and served on the defendant within the meaning of the Explanation to Section 20(4) of the said Act on that day. Since 11th September, 1978 was the date when the summons was so served and one month's time was allowed for filing the written statement, though it might be the date for the taking of a step by the defendant, the defendant should have complied with the provisions of Section 20(4) of the said Act by that date. This had not been done. The rent had been deposited only thereafter. In those circumstances, it was held that the defendant could not avail of the advantage of Section 20(4) and was liable to be ejected.

(emphasis added)

15. We are in agreement with the ratio of the judgment in so far as it says that when time is fixed by the court for the filing of the written statement and the hearing, these dates bind the defendant, regardless of the service of the summons, and compliance with the provisions of Section 20(4) of the said Act must be judged upon the basis of the dates so fixed."

23. Similarly, a Division Bench of this court in the case of Flight Center Travels Pvt. Ltd. vs. Flight Centre Ltd. & Anr., (supra) held as follows:-

"23. The first significant issue to be examined is as to whether it can be said that the absence of service of summons and notice on respondent No. 1 amounts to in effect, nullifying a decree passed against the said respondent and requiring the ex parte decree to be set aside. We have already noticed that this plea is available to respondent No. 1 and not to respondent No. 2, a position undisputed by learned counsel for the respondents.

24. The facts, as they emerge from the suit records, have already been noticed above in detail at the inception of the judgment. The facts show that the counsel did enter appearance for defendants 1 to 4 and thereafter continued to appear for the respondents. It is also a fact that there is nothing on record to show the completion of service qua respondent No. 1 herein. It has been rightly emphasized by learned counsel for the appellant that the service of summons is in furtherance of rules of audi alteram partem, i.e., opposite side may get a chance to answer the case and no one should be condemned unheard. Let us say, if a defendant having advanced knowledge of the summons enters appearance through counsel and accepts notice in Court, can it still be said that the technical process of issuance of summons and notices to him should still be adhered to? The answer to this question, in our view, would be in the negative. This is the reason why the word used in Order V. Rule 1 (1) of the said Code is "may" instead of "shall". This position is abundantly clear in view of proviso added by the amendment of 1976 to Order V. Rule 1 of the said Code in addition to the existing proviso, in terms whereof no such summons are to be issued where a defendant appears at the presentation of the plaint and admitted the plaintiffs claim. For convenience of reference we reproduce Order V. Rules 1 & 2 of the said Code as under:-

…….

25. The objective of the process of issuance of summons is to obtain the presence of the defendant for final opportunity to be given to him to rebut the claim against him. Thus, if he appears at the initial stage in a sense there is waiver of the right to have summons served on him. This position has been explained in the case of Sri Nath Agrawal case (supra) and to that extent the aforesaid has been upheld by the Supreme Court in Siraj Ahmad Siddiqui case (supra)."

(emphasis added)

24. Hence, when at the initial stage itself before summons are actually served on the defendant, the defendant appears in court having been informed through various other sources about the pendency of the proceedings, in such circumstances, it would depend upon the facts of the case as to whether the conduct of the defendant shows deemed service of summons or waiver of the right to have the summons served on him. Needless to say this would be a pure question of fact, dependent upon the facts and circumstances of each case. Normally, once a defendant has appeared in court without service of summons it would be deemed that summons stand served on him and that he has waived his right to receive summons. However, there may be exceptions depending on the facts and circumstances of each case. This aspect assumes greater significance in view of the amendment to Order 8 Rule 1 CPC by the Commercial Courts Act whereby a specified time period has been stipulated for filing of written statement from the date of service of summons.

25. I may now once again look at the facts of the case. The defendants appeared on the first date of hearing. It was at the request of the learned counsel for the plaintiff that the matter was adjourned as it was noted that there was a possibility of settlement. On the next date, namely, 24.09.2018, a submission was made by the learned counsel for the parties that they would like to try and settle the matter through mediation. Parties were directed to appear before the Delhi High Court Mediation and Conciliation Centre.

A perusal of the orders of this court dated 28.08.2018 and 24.09.2018 do not lead to a conclusion that any finding was recorded by the court that the suit has been duly instituted and the defendant should now answer the claim and file the written statement in his defence. Further no conclusion can be reached from the reading of the two orders that the defendant has by his conduct waived his right to have the summons served upon him. The orders on the contrary indicate that instead of the adjudicatory process, for the time being, the parties had adopted a mechanism to settle the matter, firstly by their own efforts, and thereafter through a formal process of mediation which was to be undertaken under the aegis of the Delhi High Court Mediation and Conciliation Centre.

26. There is another reason why I may be inclined to hold that the above two orders dated 28.08.2018 and 24.09.2018 do not in any manner imply a waiver by the defendant of his right to have summons served on him. Mediation is a recognized mechanism as an alternative for resolution of disputes. Section 89 of the CPC recognizes mediation, which reads as follows:

"89. Settlement of disputes outside the Court - (1) Where it appears to the Court that there exist elements of a settlement which may be acceptable to the parties, the Court shall formulate the terms of settlement and give them to the parties for their observations and after receiving the observations of the parties, the Court may re-formulate the terms of a possible settlement and refer the same for-

(a) arbitration;

(b) conciliation;

(c) judicial settlement including settlement through Lok Adalat; or

(d) mediation.

(2) Where a dispute has been referred-

(a) for arbitration or conciliation, the provisions of the Arbitration and Conciliation Act, 1996 (26 of 1996) shall apply as if the proceedings for arbitration or conciliation were referred for settlement under the provisions of that Act;

(b) to Lok Adalat, the Court shall refer the same to the Lok Adalat in accordance with the provisions of sub-section (1) of section 20 of the Legal Services Authority Act, 1987 (39 of 1987) and all other provisions of that Act shall apply in respect of the dispute so referred to the Lok Adalat;

(c) for judicial settlement, the Court shall refer the same to a suitable institution or person and such institution or person shall be deemed to be a Lok Adalat and all the provisions of the Legal Services Authority Act, 1987 (39 of 1987) shall apply as if the dispute were referred to a Lok Adalat under the provisions of that Act;

(d) for mediation, the Court shall effect a compromise between the parties and shall follow such procedure as may be prescribed."

27. Mediation is purely a voluntarily dispute resolution mechanism, which is resorted to by the consent of the parties themselves. This consent can be revoked by any of the parties at any stage of the mediation proceedings. Reference may be had to the Delhi High Court Mediation and Conciliation Rules, 2004 (hereinafter referred to as "Rules") which have been framed section 89 of the CPC by Delhi High Court. Rule 18 of the said Rules provides that on expiry of 90 days from the date fixed for the first appearance before a mediator, the mediation/conciliation shall stand terminated unless the court which referred the matter is of the view that extension of time is necessary. Rule 17 of the said Rules further clarifies that the mediator only facilitates in arriving at a decision to resolve the dispute and no settlement can be imposed on any of the parties.

28. The Supreme Court in the case of Vikram Bakshi & Ors. v. Sonia Khosla (Dead) by Legal Representatives : (2014) 15 SCC 80, has stated the advantages of mediation and has noted that the mediation is a new dimension of access to justice. The court held as follows:

"16. According to us it would have been more appropriate for the parties to at least agree to resort to mediation as provided under Section 89 CPC and make an endeavour to find amicable solution of the dispute, agreeable to both the parties. One of the aims of mediation is to find an early resolution of the dispute. The sooner the dispute is resolved the better for all the parties concerned, in particular, and the society, in general. For parties, dispute not only strains the relationship but also destroys it. And, so far as society is concerned it affects its peace. So what is required is resolution of dispute at the earliest possible opportunity and via such a mechanism where the relationship between individual goes on in a healthy manner. Warren Burger, once said:

"The obligation of the legal profession is … to serve as healers of human conflict … we should provide mechanisms that can produce an acceptable result in shortest possible time, with the least possible expense and with a minimum of stress on the participants. That is what justice is all about."

MEDIATION is one such mechanism which has been statutorily brought into place in our justice system. It is one of the methods of alternative dispute resolution and resolves the dispute in a way that is private, fast and economical. It is a process in which a neutral intervenor assists two or more negotiating parties to identify matters of concern, develop a better understanding of their situation, and based upon that improved understanding, develop mutually acceptable proposals to resolve those concerns. It embraces the philosophy of democratic decision-making [Alfin, et al., Mediation Theory & Practice (2nd Edn., 2006) Lexis Nexis].

17. Thus, mediation being a form of alternative dispute resolution is a shift from adversarial litigation. When the parties desire an ongoing relationship, mediation can build and improve their relationships. To preserve, develop and improve communication, build bridges of understanding, find out options for settlement for mutual gains, search unobvious from obvious, dive underneath a problem and dig out underlying interests of the disputing parties, preserve and maintain relationships and collaborative problem solving are some of the fundamental advantages of mediation. Even in those cases where relationships have turned bitter, mediation has been able to produce positive outcomes, restoring peace and amity between the parties.

18. There is always a difference between winning a case and seeking a solution. Via mediation, the parties will become partners in the solution rather than partners in problems. The beauty of settlement through mediation is that it may bring about a solution which may not only be to the satisfaction of the parties and, therefore, create a win-win situation, the outcome which cannot be achieved by means of judicial adjudication. Thus, life as well as relationship goes on with mediation for all the parties concerned and thus resulting into peace and harmony in the society. While providing satisfaction to the litigants, it also solves the problem of delay in our system and further contributes towards economic, commercial and financial growth and development of the country.

19. This Bench is of firm opinion that mediation is a new dimension of access to justice. As it is one of the best forms, if not the best, of conflict resolution. The concept of Justice in mediation is advanced in the oeuvres of Professors Stulberg, Love, Hyman, and Menkel-Meadow (Self-Determination Theorists). Their definition of justice is drawn primarily from the exercise of party self-determination. They are hopeful about the magic that can occur when people open up honestly and empathetically about their needs and fears in uninhibited private discussion. And, as thinkers, these jurists are optimistic that the magnanimity of the human spirit can conquer structural imbalances and resource constraints."

29. I may note that there is a trend developing whereby the courts seek to refer the parties to mediation. In India the Commercial Courts Act, 2015 was recently amended making pre-institution mediation a mandatory process. Section 12A (1) of the Commercial Courts Act, 2015 reads as follows:

"12A (1). Pre-Institution Mediation and Settlement:-(1) A suit, which does not contemplate any urgent interim relief under this Act, shall not be instituted unless the plaintiff exhausts the remedy of pre-institution mediation in accordance with such manner and procedure as may be prescribed by rules made by the Central Government.

xxxxxxxxx"

30. The trend internationally is also to first enforce the Agreement where the parties have agreed for resolution of the dispute through mediation. Reference in this context may be had to the judgment of the High Court of Justice Business and Property Courts of England and Wales Technology and Construction Court (QBD) in Ohpen Operations UK Limited v. Invesco Fund Managers Limited. (2019) EWHC 2246 (TCC) where the court held as follows:

"The issue before the court is whether the claim has been issued in breach of a contractually agreed tiered dispute resolution procedure and, if so, whether these proceedings should be stayed, pending referral of the dispute to mediation."

The court held as follows:

"In Cable & Wireless Plc v. IBM United Kingdom Ltd : [2002] EWHC 2059 (Comm) Colman J recognised that a contractual agreement to refer a dispute to ADR could be enforceable by a stay of proceedings:

xxxx

[32] …In principle … where there is an unqualified reference to ADR, a sufficiently certain and definable minimum duty of participation should not be hard to find…

[34] The reference to ADR is analogous to an agreement to arbitrate. As such, it represents a free-standing agreement ancillary to the main contract and capable of being enforced by a stay of the proceedings or by injunction absent any pending proceedings. The jurisdict

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ion to stay, although introduced by statute in the field of arbitration agreement, is in origin an equitable remedy." The court further held as follows: "The following principles can be derived from the above authorities as applicable where a party seeks to enforce an alternative dispute resolution provision by means of an order staying proceedings: • i) The agreement must create an enforceable obligation requiring the parties to engage in alternative dispute resolution. • ii) The obligation must be expressed clearly as a condition precedent to court proceedings or arbitration. • iii) The dispute resolution process to be followed does not have to be formal but must be sufficiently clear and certain by reference to objective criteria, including machinery to appoint a mediator or determine any other necessary step in the procedure without the requirement for any further agreement by the parties. • iv) The court has a discretion to stay proceedings commenced in breach of an enforceable dispute resolution agreement. In exercising its discretion, the Court will have regard to the public policy interest in upholding the parties' commercial agreement and furthering the overriding objective in assisting the parties to resolve their disputes." 31. Usually the proceedings in court are halted when the parties are referred to the Court annexed Mediation Centre. Such a procedure facilitates the mediation process. 32. A reading of the orders dated 28.08.2018 and 24.09.2018 does not by the conduct of the parties show that the summons can be deemed to be served on the defendant or and that defendant knew that he had to answer the claim. This is especially so as on 24.09.2018 by the consent of parties they were referred to the Delhi High Court Mediation and Conciliation Centre. They had to appear before the Court annexed Mediation Centre on 4.10.2018. In terms of Rule 18 of the Delhi High Court Mediation and Conciliation Rules framed under section 89 of CPC mediation was to stand terminated on or around 4.1.2019. It appears that by consent of parties mediation process was terminated on 20.11.2018. It is only thereafter that the defendant can be said to be deemed to have been served with summons as he knew that now he had to answer the claim in terms of prescribed procedure. 33. In the above facts, I hold that the defendant can be deemed to have served with summons on 28.11.2018 or thereabouts. 34. The proviso to Order 8 Rule 1 CPC provides that where a defendant has failed to file a written statement within the period of 30 days he shall be allowed to file written statement on such other date for reasons to be recorded in writing but not later than 120 days from the date of service of summons. 35. I have already noted above that in my opinion, the summons can be said to have been served on the defendant, the defendant has waived his right of service of summons on or around 28.11.2018. However, the written statement has been filed on 06.03.2019 i.e. within the outer limitation prescribed by the proviso to Order 8 rule 1 CPC as applicable to the commercial suits. However, a delay beyond the period of 30 days in filing written statement from the date of the service of the summons can only be condoned for reasons to be recorded in writing and on payment of such cost as the court may deem fit. 36. As already noted above, the facts of the case show that the defendant was justifiably believing that summons had not been served/defendant had not been called upon to file its written statement. Further, the parties were before the mediation centre trying to settle the matter through an alternative dispute resolution mechanism. These background facts, in my opinion would constitute sufficient cause to explain the delay on the part of the defendant in filing the written statement. 37. I accordingly order that the written statement be taken on record subject to cost of Rs. 30,000/- payable within three weeks. Objections of the plaintiff are rejected.
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