Legal strategy, regulatory direction and commercial clarity for decision-makers.

By Sumit Khadaria

Advocate, Fiscal Law Chambers, High Court of Delhi

I. Introduction

Commercial litigation in India operates under an expectation of speed. The Commercial Courts Act, 2015 was enacted with a clear mandate: commercial disputes of specified value must be resolved expeditiously, without the procedural indulgences that had come to characterise ordinary civil litigation. Strict timelines, mandatory pre-institution mediation, a compressed trial schedule — these were the tools Parliament chose.

One consequence of this accelerated framework has been a heightened focus on pleading compliance. When a defendant files a Written Statement in a commercial suit before a District Commercial Court, a question that now routinely arises — and that has produced irreconcilable answers from coordinate benches of the Delhi High Court — is this: must the Written Statement be accompanied by an Affidavit of Admission/Denial of the plaintiff's documents, failing which the Written Statement will not be taken on record?

The question sounds technical. Its consequences are anything but. Where a Trial Court answers it in the affirmative and strikes off the defendant's Written Statement, that defendant loses the ability to place his factual case before the court, loses the ability to lead evidence, and faces an almost certain adverse decree. The procedural question becomes, in effect, a final determination of the suit.

The Delhi High Court has not definitively settled this question for District Court proceedings. As of September 2025, a Single Judge of the High Court acknowledged the existence of "conflicting views of Coordinate benches" on the issue and stayed trial court proceedings pending resolution of that conflict. The question therefore remains open — and in the meantime, Trial Courts across Delhi continue to receive applications for striking off Written Statements, without authoritative guidance on how those applications should be decided.

This article examines the statutory framework, traces the judicial conflict in its correct sequence, identifies what has been decided and what has not, and offers a view on where the law ought to settle.

II. The Statutory Framework: Two Regimes, Two Rules

The confusion in this area arises because two different sets of rules deal with the filing of Affidavits of Admission/Denial — and they apply to different courts.

A. The Delhi High Court (Original Side) Rules, 2018 — Chapter VII, Rule 3

Rule 3 of Chapter VII of the Delhi High Court (Original Side) Rules, 2018 provides in explicit terms:

“Alongwith the written statement, defendant shall also file an affidavit of admission/denial of documents filed by the plaintiff, without which the written statement shall not be taken on record.”

The consequence of non-compliance under the Original Side Rules is unambiguous: if the Written Statement is not accompanied by the Affidavit, it shall not be taken on record. The word “shall” appears twice — once to mandate filing and again to prescribe the consequence of non-compliance.

However — and this is the foundational point — these Rules are rules for the Original Side of the Delhi High Court alone. Rule 3 of Chapter I of the same Rules states:

“All proceedings on the original side of the Court, instituted or transferred pursuant to provisions of the Delhi High Court Act of 1966, or any other law shall, unless otherwise ordered by the Court, be governed by these Rules.”

The Rules govern Original Side proceedings. They say nothing about commercial suits before the District Courts.

B. The CPC as Amended by the Commercial Courts Act, 2015 — Order XI Rule 4

Commercial suits before the District Courts are governed by the CPC as amended by the Commercial Courts Act, 2015. The relevant provision is Order XI Rule 4, which reads:

“4(1) Each party shall submit a statement of admissions or denials of all documents disclosed and of which inspection has been completed, within fifteen days of the completion of inspection or any later date as fixed by the Court.”

“4(5) An Affidavit in support of the statement of admissions and denials shall be filed confirming the correctness of the contents of the statement.”

A careful reading of Order XI Rule 4 discloses a material structural difference from Chapter VII Rule 3 of the Original Side Rules. Under Order XI Rule 4, the obligation to file the Affidavit of Admission/Denial does not arise at the stage of filing the Written Statement. It arises after disclosure and inspection of documents is complete — within fifteen days thereof, or such later date as the Court may fix. The Affidavit is a separate, subsequent obligation. It is not a condition precedent to the Written Statement being taken on record.

Order VIII Rule 1 CPC, as amended by the Commercial Courts Act, 2015, provides the timeline for filing the Written Statement itself: within 30 days of service of summons, extendable to 120 days on sufficient cause. After 120 days, the defendant forfeits the right to file the Written Statement. This provision concerns the Written Statement. It says nothing about the Affidavit of Admission/Denial.

These two provisions — Order VIII Rule 1 and Order XI Rule 4 — operate on different timelines and govern different obligations. Neither of them, on a plain reading, makes the Affidavit of Admission/Denial a condition precedent to the Written Statement being taken on record in a District Court commercial suit.

III. The Judicial Conflict: A Case-by-Case Account

A. Unilin Beheer B.V. v. Balaji Action Buildwell — The Starting Point (2019)

The question first received close judicial attention from the Delhi High Court in Unilin Beheer B.V. v. Balaji Action Buildwell, 2019 SCC OnLine Del 8498, decided on 15.05.2019 by Justice Rajiv Sahai Endlaw. This was a commercial suit bearing CS(COMM) 1683/2016 — filed directly on the Original Side of the Delhi High Court, not before any District Court.

The defendant had filed a Written Statement without the Affidavit of Admission/Denial required by Chapter VII Rule 3 of the Original Side Rules. Justice Endlaw held that reading Rules 3 and 4 of Chapter VII together, the consequence of non-filing of the Affidavit is not merely that the plaintiff's documents are deemed admitted — it is that the Written Statement itself shall not be taken on record. He reasoned that to hold otherwise would render the express words “without which the written statement shall not be taken on record” in Rule 3 otiose.

Unilin Beheer settled the law on the Original Side. Its ratio is confined to Original Side proceedings, because the entire analysis is anchored in Chapter VII Rule 3 of the Delhi High Court (Original Side) Rules, 2018. However, as we shall see, it was subsequently applied — incorrectly, it is submitted — to District Court proceedings.

B. COSCO (India) Ltd. v. Paramsukh Nirman Pvt. Ltd. (COSCO-I) — A Nuanced Reading on the Original Side (2019)

COSCO (India) Ltd. v. Paramsukh Nirman Pvt. Ltd., CS(COMM) 1051/2018, decided on 31.07.2019 by Justice Prathiba M. Singh, arose from a commercial suit on the Original Side of the High Court. The defendant had filed the Written Statement without the Affidavit, and the defect was cured within the 30-day period available under Chapter IV Rule 3 of the Original Side Rules.

Justice Prathiba M. Singh, while accepting that the 120-day period for filing the Written Statement is mandatory, introduced an important distinction: the filing of the Written Statement and its being taken on record are two separate and distinct matters. Non-accompaniment of the Affidavit is a defect in the filing — not a non-est filing. If the defect is cured within the permissible 30-day window from when the Registry points it out, the Written Statement ought to be taken on record. The Court dismissed the plaintiff's appeal against the Joint Registrar's order taking the Written Statement on record.

COSCO-I therefore established — even on the Original Side — that non-filing of the Affidavit is a curable defect, provided it is cured within the prescribed period.

C. Sudhakar Singh & Anr. v. M/s Webkul Software Pvt. Ltd. — The Correct Answer for District Courts (2020)

Sudhakar Singh & Anr. v. M/s Webkul Software Pvt. Ltd., CM(M) 50/2020, decided on 28.01.2020 by Justice Prathiba M. Singh, is the most important judgment on this question for District Court proceedings. It arose from a commercial suit before the Additional District Judge.

The ADJ had struck off the defendant's Written Statement on the ground that it was not accompanied by the Affidavit of Admission/Denial. Justice Prathiba M. Singh set aside that order in clear and categorical terms:

“Under Order VIII CPC, as amended by the Commercial Courts Act, 2015, filing of affidavit of admission/denial as applicable to commercial courts is not compulsory. Filing of affidavit of admission/denial has been made compulsory only in Delhi High Court (Original Side) Rules, 2018. Thus, striking off the defence despite written statement being placed on record, on the ground that affidavit of admission/denial was not filed is not tenable.”

The Court additionally made an important administrative observation: the summons issued by the District Commercial Courts at that time were not issued in the format notified by the Delhi High Court on 27th November, 2015 — a format that applied only to the Original Side. The Court directed the Registrar General to place the matter before the Chief Justice for issuance of directions regarding amendments to summons and notices issued by District Commercial Courts, so that litigants would be made aware of their obligations under the Commercial Courts Act.

Sudhakar Singh establishes three propositions with clarity: first, the mandatory affidavit requirement under Chapter VII Rule 3 of the DHC Original Side Rules, 2018 is confined to Original Side proceedings; second, Order VIII CPC as amended by the Commercial Courts Act, 2015 does not make the Affidavit of Admission/Denial compulsory in District Court commercial suits; and third, striking off a Written Statement in a District Court proceeding on this ground alone is not tenable.

This judgment was decided in January 2020. It binds every Single Judge of the Delhi High Court on the question of District Court commercial suits.

D. M/s Ok Play India Pvt. Ltd. v. M/s A.P. Distributors & Anr. — An Order Later Set Aside (2021/2022)

M/s Ok Play India Pvt. Ltd. v. M/s A.P. Distributors & Anr., CM(M) 346/2020, was decided on 17.08.2021 by Justice Asha Menon. This case arose from CS(COMM) 81/2018 — a commercial suit before a Commercial Court in the district court hierarchy. The Written Statement had been filed on the 34th day after service of summons — beyond the 30-day standard period but within 120 days — and without the Affidavit of Admission/Denial. Crucially, no condonation application had been filed at the time of filing the Written Statement.

Justice Asha Menon set aside the Trial Court's order condoning the delay and held that the Written Statement had to be taken off the record. The judgment primarily addressed the mandatory requirement of filing a condonation application alongside a belated Written Statement — and relied upon Unilin Beheer (an Original Side judgment) in addressing the affidavit question.

Ok Play was appealed to the Supreme Court. Vide order dated 12.09.2022 in Civil Appeal Nos. of 2022 arising from SLP(C) Nos. 9733-9734/2022, the Supreme Court set aside the High Court's order. The Supreme Court held:

“The High Court has taken too technical a view in setting aside the order passed by the learned Commercial Court directing to accept the written statement filed on behalf of the appellants/defendants. The High Court was not justified in setting aside the order passed by the learned Trial Court directing to take the written statement on record.”

The Supreme Court restored the Trial Court's order directing the Written Statement to be taken on record. Ok Play (HC) is therefore no longer good law. It was set aside by the Supreme Court on 12.09.2022.

E. Mayank Gupta v. M/s Aditya Birla Fashion and Retail Ltd. — The Per Incuriam Judgment (2023)

Mayank Gupta v. M/s Aditya Birla Fashion and Retail Ltd., CM(M) 178/2023, decided on 03.03.2023 by Justice Tushar Rao Gedela, arose from CS(COMM) 167/2022 — a commercial suit before a District Commercial Court. The defendant had filed the Written Statement with the Statement of Truth within the prescribed period but without the Affidavit of Admission/Denial. The defendant filed the Affidavit along with a condonation application on 31.08.2022 — more than 120 days from the date of service of summons — only when it came to know of the defect upon the plaintiff filing an Order XIII-A summary judgment application.

The Trial Court dismissed the condonation application and the High Court upheld the dismissal, relying on M/s Ok Play India Pvt. Ltd. (HC) and Unilin Beheer B.V. The judgment proceeds on the basis that the affidavit requirement is mandatory in District Court commercial suits and that failure to file it within 120 days from the date of service of summons results in the Written Statement being taken off the record.

Mayank Gupta does not consider or even mention Sudhakar Singh — the binding coordinate bench judgment that had directly and categorically decided the same question three years earlier. It also relies on M/s Ok Play India Pvt. Ltd. (HC) — a judgment that had already been set aside by the Supreme Court approximately six months before Mayank Gupta was decided.

A judgment rendered without consideration of a binding coordinate bench authority on the same point is per incuriam — that is an elementary principle of judicial discipline affirmed by the Supreme Court across decades. Mayank Gupta is per incuriam on two independent grounds: it fails to consider Sudhakar Singh, and it relies on Ok Play (HC) which the Supreme Court had already set aside.

F. Laxmi Narayan v. Anurag (2023) and M/s Unilec Engineers v. HPL Electric (2023) — Affirming Sudhakar Singh

Laxmi Narayan and Ors. v. Anurag & Ors., CM(M) 1121/2023, decided on 19.07.2023 by Justice Manmeet Pritam Singh Arora, arose from a civil suit before the Additional District Judge, Rohini. A plaintiff's application for striking off the defendant's Written Statement on account of non-filing of the Affidavit of Admission/Denial had been dismissed by the Trial Court following Sudhakar Singh. The Delhi High Court affirmed, holding that the DHC Original Side Rules 2018 are not applicable to proceedings before the District Courts. The Court quoted and endorsed the Trial Court's reliance on Sudhakar Singh and added that Chapter I Rule 3 of the High Court Rules 2018 expressly limits those Rules to Original Side proceedings.

In the same year, in M/s Unilec Engineers Ltd. v. HPL Electric and Power Ltd., CM(M) 990/2023, decided on 17.08.2023, Justice Manmeet Pritam Singh Arora again followed Sudhakar Singh and set aside a Trial Court order striking off the Written Statement. The Court enunciated the policy principle in terms that deserve to be quoted in full:

“The intent of the Act of 2015 is to ensure a time bound disposal of the claims raised by the plaintiff on merits and to this effect regulate accuracy in pleadings of the parties and to ensure that parties do not indulge in dilatory tactics. The intent of the rigours of the Act is not to afford a decree in default to the plaintiff. In the opinion of this Court striking off a written statement which was filed within the statutory period of limitation would defeat the ends of justice rather than advancing the dispensation of justice in a time bound manner, which is the true intent of the Act of 2015.”

G. Radha Phool Fin-Investments Pvt. Ltd. v. Paramsukh Nirman Pvt. Ltd. — Curable Defect on the Original Side (2024)

Radha Phool Fin-Investments Pvt. Ltd. v. Paramsukh Nirman Pvt. Ltd., CS(COMM) 1053/2018, decided on 06.08.2024 by Justice Navin Chawla, was an appeal arising from an Original Side commercial suit. The defendant had filed the Written Statement within 120 days but without the Affidavit, and the Affidavit was filed beyond the 120-day period.

Justice Chawla surveyed the conflict between Unilin Beheer on one hand and COSCO-I and COSCO-II on the other — all Original Side proceedings — and held that the correct position, even on the Original Side, is that non-filing of the Affidavit with the Written Statement is a curable defect. Provided the defect is cured within the period allowed by the Registry under Chapter IV Rule 3 of the Original Side Rules, the Written Statement is to be taken on record. The Impugned Order was set aside and the Written Statement taken on record.

Radha Phool is an Original Side judgment. It does not address the District Court question. However, it is significant because it shows that even on the Original Side — where the DHC Rules explicitly make the Affidavit mandatory — multiple coordinate benches have held that non-compliance is a curable defect rather than a fatal one.

H. Sikka Kars Global Pvt. Ltd. v. Abhay Kumar Jain (2024)

In Sikka Kars Global Pvt. Ltd. & Anr. v. Abhay Kumar Jain, CM(M) 4026/2024, decided on 12.12.2024 by Justice Ravinder Dudeja, the Delhi High Court again set aside a Trial Court order striking off a Written Statement in a District Court commercial suit. Following Sudhakar Singh, Justice Dudeja held in unambiguous terms:

“In cases of commercial nature, parties are required to file their respective affidavits of admission/denial. However, such requirement is not mandatory, and therefore, the defence of defendant cannot be struck off merely on this ground.”

The Written Statement, which had been filed within the prescribed period, was directed to be taken on record.

I. Kishor Shankar Rao Yeole v. M/s Taneja Trading Company — The Conflict Acknowledged (2025)

Kishor Shankar Rao Yeole v. M/s Taneja Trading Company, CM(M) 1791/2025, decided on 12.09.2025 by Justice Girish Kathpalia, marked a qualitative shift. The Trial Court had struck off the defendant's Written Statement in a District Court commercial suit following two judgments of the Delhi High Court. The defendant challenged the order, relying on Sudhakar Singh. Justice Kathpalia, without deciding the merits, stayed the trial court proceedings and observed:

“It is noticed that there are conflicting views of Coordinate benches of this Court on the issue as to whether non-filing of admission/denial affidavit alongwith Written Statement vitiates the filing of Written Statement.”

For the first time in the District Court context, the conflict was formally acknowledged and proceedings stayed on that basis.

J. VK Sood PIL JV v. South Delhi Municipal Corporation — A Larger Bench Reference on a Different (But Related) Question (2026)

VK Sood PIL JV v. South Delhi Municipal Corporation, O.A. 43/2023 in CS(OS) 330/2022, decided on 08.04.2026 by Justice Subramonium Prasad, is important but must be accurately understood. It is an Original Side proceeding — CS(OS) — and the entire judgment and the referred question operate within the framework of the Delhi High Court (Original Side) Rules, 2018 alone.

The conflict noticed by Justice Prasad is between Unilin Beheer (which held that a WS without the Affidavit is non-est and cannot be taken on record) and COSCO-I, COSCO-II, Neeraj Ahuja, and Shefali Kohli (which held that non-filing of the Affidavit is a curable defect, provided it is cured within the permissible window). All of these are Original Side judgments. The referred question is precisely framed:

“Whether the filing of a Written Statement within the statutory period prescribed under the Delhi High Court (Original Side) Rules, 2018, but without being accompanied by an affidavit of admission/denial of documents, renders such filing non-est in law or whether the absence of such affidavit constitutes a curable defect...”

The reference is therefore to the Original Side question — not to the District Court question. It does not directly decide or refer the separate question of whether the Affidavit is mandatory in District Court commercial suits, which is governed by a completely different statutory regime (Order XI Rule 4 CPC as amended, not the DHC Original Side Rules 2018).

What VK Sood does demonstrate, however, is the seriousness of the procedural uncertainty in this area and the need for authoritative resolution. If the question of curable defect versus non-est filing requires a Larger Bench on the Original Side — where the Rules explicitly use the word “shall” and explicitly say the WS shall not be taken on record — the question for District Courts, where no such explicit provision exists, is if anything more clearly answered in favour of the defendant.

IV. The Three Questions — Separated and Answered

A clear analysis requires separating three questions that have been conflated in the case law:

Question 1: Does the DHC Original Side Rules, 2018 (Chapter VII, Rule 3) apply to District Court commercial suits?

Answer: No. This is definitively established by Sudhakar Singh and affirmed by Laxmi Narayan, Unilec Engineers, and Sikka Kars. The Rules expressly limit themselves to Original Side proceedings by Chapter I Rule 3. The affirmative answer in Mayank Gupta did not consider Sudhakar Singh and is per incuriam.

Question 2: Does Order XI Rule 4 of the CPC as amended by the Commercial Courts Act make the Affidavit a condition precedent to the Written Statement being taken on record in a District Court commercial suit?

Answer: No. Order XI Rule 4 creates a separate obligation that arises after disclosure and inspection. Order VIII Rule 1 governs the timeline for the Written Statement itself. The two provisions are independent. Non-compliance with Order XI Rule 4 has consequences prescribed within that provision — not the consequence of the Written Statement being taken off the record.

Question 3 (Original Side only — referred to Larger Bench in VK Sood): Where the DHC Original Side Rules 2018 do apply, is a Written Statement filed within 120 days but without the Affidavit rendered non-est, or is the non-filing a curable defect?

Answer: Pending before the Larger Bench. Not directly relevant to District Court proceedings.

V. Analysis: Why Mayank Gupta Is Per Incuriam

The proposition that Mayank Gupta is per incuriam rests on two independent grounds, each of which is sufficient by itself.

First ground: non-consideration of Sudhakar Singh.

Sudhakar Singh was decided in January 2020 by a coordinate bench — Justice Prathiba M. Singh — on the precise question of whether the Affidavit of Admission/Denial is mandatory in District Court commercial suits. It held, clearly and directly, that it is not. Mayank Gupta was decided in March 2023 — three years later. A judgment of coordinate jurisdiction on the same point, decided three years earlier, is binding. Mayank Gupta neither mentions, cites, nor distinguishes Sudhakar Singh. This is a classic instance of per incuriam — “through inadvertence,” the court proceeded without applying its mind to the binding authority. A court presented with Sudhakar Singh cannot treat Mayank Gupta as binding precedent on the District Court question.

Second ground: reliance on an overruled authority.

Mayank Gupta expressly places reliance on M/s Ok Play India Pvt. Ltd. (HC), CM(M) 346/2020. That order was set aside by the Supreme Court on 12.09.2022 — six months before Mayank Gupta was decided on 03.03.2023. The Supreme Court held the High Court had taken “too technical a view” and restored the Trial Court's order taking the Written Statement on record. A judgment that relies on an authority overruled by the Supreme Court before the date of the judgment cannot itself be treated as sound precedent. Whatever force Mayank Gupta might have had on the District Court question is further undermined by the fact that one of its two express foundations no longer exists.

VI. The Practical Consequence

The consequences of this unresolved conflict fall most heavily on defendants in District Court commercial suits. A defendant who files a Written Statement within time, but without the Affidavit of Admission/Denial, may find his entire defence struck off depending on which line of authority the Trial Court happens to follow. In the present state of the law, the outcome of a striking-off application depends on which judgments the Trial Court is aware of. That is not a satisfactory state of affairs for a jurisdiction that prides itself on the rule of law.

Where the Written Statement is struck off, the consequences compound rapidly: the trial proceeds on the plaintiff's evidence alone; cross-examination of the plaintiff's witnesses may be curtailed; no defence evidence can be led; any Commissioner or other officer appointed by the court operates in an evidential vacuum; and the resulting decree, carrying the full force of a court's findings, is likely to be affirmed on appeal because appellate courts are reluctant to disturb findings of fact. The original procedural default — failing to file an Affidavit that the governing law does not even require to accompany the Written Statement — becomes the determinant of the entire litigation.

VII. The Way Forward

Several steps are needed to bring clarity.

First, Trial Courts hearing applications to strike off a Written Statement in District Court commercial suits should be guided by the consistent line of authority — Sudhakar Singh, Laxmi Narayan, Unilec Engineers, and Sikka Kars — all of which hold that the Affidavit requirement is not mandatory in District Court proceedings and that striking off the Written Statement on this ground alone is not tenable. Mayank Gupta should not be followed, both because it is per incuriam and because it conflicts with the earlier and binding judgment in Sudhakar Singh.

Second, until the question is authoritatively resolved, Trial Courts should follow the approach Justice Kathpalia took in Kishor Shankar Rao Yeole — where a striking-off application is pressed before a Trial Court in a District Court commercial suit, and the defendant points to the conflict in the law, the Trial Court should stay its hand rather than proceed on one contested line of authority and visit irreversible consequences on the defendant.

Third, the Larger Bench reference in VK Sood PIL JV, though confined to the Original Side question, should address the question whether non-filing of the Affidavit is a curable defect or a non-est filing. The reasoning of the Larger Bench on that Original Side question, when available, will inform — though not bind — the resolution of the District Court question.

Fourth, the administrative direction in Sudhakar Singh — that the Registrar General should ensure District Court summons in commercial suits are amended to make the timelines under the Commercial Courts Act clear to defendants — deserves implementation. Procedural defaults of this kind often occur not out of deliberate evasion but out of genuine unawareness. A summons that clearly sets out the defendant's obligations under the Commercial Courts Act is the simplest preventive measure.

VIII. Conclusion

The Commercial Courts Act, 2015 introduced strict timelines to serve justice more effectively. Procedural requirements under that Act are to be understood purposively — designed to expedite the resolution of disputes on their merits, not to foreclose that resolution altogether.

The Affidavit of Admission/Denial of documents is a device to streamline the proof of documents at trial. Its mandatory character — and the extreme consequence of non-filing — is expressly stated in the Delhi High Court (Original Side) Rules, 2018. Those Rules, by their own terms, govern only Original Side proceedings. In District Court commercial suits, which are governed by the CPC as amended by the Commercial Courts Act, 2015, no equivalent mandatory provision with that equivalent consequence exists.

The Delhi High Court in Sudhakar Singh (2020), Laxmi Narayan (2023), Unilec Engineers (2023), and Sikka Kars (2024) has consistently held this to be the correct position. Mayank Gupta (2023), which went the other way, did so without the benefit of Sudhakar Singh and in reliance on Ok Play (HC), which the Supreme Court had already set aside. Mayank Gupta is, accordingly, per incuriam on two independent grounds.

That the law is unsettled is itself a problem — and one that has real human consequences every time a Trial Court strikes off a Written Statement in a District Court commercial suit in reliance on an improperly decided precedent. The sooner this question receives an authoritative, considered resolution from an appropriate bench of the Delhi High Court — one that takes note of the full line of authority on both sides — the better it will be for the administration of civil justice.

The author is an advocate practising before the Delhi High Court. The views expressed are personal.

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