HELSINN HEALTHCARE SA & ANR. v. HETERO HEALTHCARE LIMITED

dated 30.04.2024 granted an ad- interim injunction in favour of the Plaintiffs restraining the Defendant from selling, distributing or promoting, directly or indirectly in any manner, the Defendant's product 'NETUPIN' or any other medicinal or pharmaceutical product, which infringes the Plaintiffs' Patent. On 30.04.2024, the Plaint was registered as a Suit and the Summons were issued, which were served upon the Defendant on 21.05.2024.

3. The Defendant, thereafter, served and filed its Written Statement on 16.08.2024 vide Diary No. 3084263/2024. By order dated 23.08.2024, the learned Joint Registrar (Judicial) allowed the Defendant's application for condonation of delay in filing the Written Statement and directed that the Written Statement be taken on record, subject to payment of costs of ₹3,000/-.

4. The Plaintiffs, thereafter, filed their Replication on 05.10.2024 along with the present Application stating that the Written Statement filed by the Defendant was taken on record on 23.08.2024 and, accordingly, 30 days period for filing the Replication started from that date and ended on 22.09.2024 and 45 days period i.e., the maximum statutorily permissible time limit was to end on 07.10.2024 before which the Plaintiffs have filed the Replication on 05.10.2024.

SUBMISSIONS ON BEHALF OF THE PLAINTIFFS:

5. The learned Counsel for the Plaintiffs submitted that:

5.1. The Written Statement filed by the Defendant in the present Suit did not automatically come on record, but had to be taken on record subject to condoning the delay in filing the Written Statement. The delay in filing the Written Statement was condoned on 23.08.2024 and, thereafter, the Written Statement was taken on

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record on 23.08.2024 subject to payment of costs of ₹3000/- pursuant to the order passed by the learned Joint Registrar (Judicial). In fact, the costs imposed vide order dated 23.08.2024 were paid by the Defendant on 30.08.2024.

5.2. Hence, the Replication filed by the Plaintiffs on 05.10.2024 was within the within the maximum statutorily permissible limit of 45 days ending on 07.10.2024 to be calculated from 23.08.2024 on the date when the Written Statement was taken on record.

5.3. The time to file a replication commences once the written statement of the defendant is taken on record when the written statement is filed along with an application seeking condonation of delay in filing the written statement, and not from the date of its service, as there would be no requirement for the plaintiff to file a replication in the event that the application seeking condonation of delay in filing the written statement is not allowed and the written statement is not taken on record.

5.4. Rule 5 of Chapter VII of Delhi High Court (Original Side) Rules, 2018 ("DHC Rules") is applicable to cases where the defendant has filed its written statement within the statutorily granted period of 30 days and when the written statement does not have to be accompanied with an application seeking condonation of delay for it to be taken on record. In the present case, the Defendant filed its Written Statement 57 days beyond the 30 days statutorily prescribed period. Therefore, the period for filing the Replication would have commenced only on 23.08.2024, when the delay in filing the Written Statement was condoned and the same was

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directed to be taken on record subject to payment of costs of ₹3000/-.

5.5. Even if it is assumed that the costs were paid on the same date, the 30 days period for filing the Replication would have expired on 22.09.2024, and the maximum statutorily permissible limit of 45 days would have expired on 07.10.2024. Accordingly, the Replication was duly filed by the Plaintiff on 05.10.2024 i.e., before the expiry of the maximum permissible period of 45 days from the date on which the Written Statement was taken on record.

5.6. The issue of when the computation of the statutory period for filing of replication commences in cases where the defendant's written statement is belated, is no longer res-integra and well- established by a plethora of decisions given by this Court including in the case of SNS Products Pvt. Ltd. v. Ijaz Uddin; 2023 SCC Online Del 787, wherein this Court observed that there would be no requirement for the plaintiff to file a replication in the event that the application seeking condonation of delay in filing written statement is not allowed and the written statement is not taken on record. The plaintiff would be required to file replication only once the condonation in delay in filing the written statement is allowed and the written statement is taken on record.

5.7. In the decision of this Court in Aroti Sarkar & Anr. v. Ashok Sarkar & Ors; dated 05.12.2023 in CS (OS) 823/2022, the written statement of the defendants was directed to be taken on record subject to payment of costs of ₹2,000/- by the defendants concerned. Hence, it was observed that since the payment of costs

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was a necessary pre-condition for taking the concerned written statement on record, the period for filing / taking on record the replication was held not to have expired till the time such costs are paid.

5.8. In the decisions of this Court in Parmeet Singh Anand v. Subhash Chand Aggarwal, dated 29.08.2024 in CS (COMM) 824/2022,

Tata Sons v. Marvel Ltd., dated 19.12.2024 in CS (COMM) No. 724/2024 and Quasar Airlines (P) Ltd. v. Shaurya Aeronautics

(P) Ltd., 2025 SCC OnLine Del 2821 it is held that the computation of period to file replication by the plaintiff commences from the date on which the written statement is taken on record. Further, in Neeraj Saran Srivastava v. Loudon Owen & Ors; Neutral Citation: 2025:DHC:283, Bunch Microtechnologies Private Limited & Ors. v. Creator Economy Tech Private Limited & Ors., order dated 14.03.2024 in CS(OS) 14/2023 hold that in cases wherein the taking on record of the written statement is subject to payment of costs, the computation of the statutory period to file replication by the plaintiff commences from the date on which such costs are paid.

5.9. In the present case, the Written Statement filed by the Defendant runs into 81 pages and the Defendant has relied upon as many as 12 prior art documents. The subject matter of the present Suit also involves complex technology. The coordination between the multiple representatives and individuals situated in different countries to prepare a comprehensive Replication took time and, therefore, some delay occurred in filing the Replication.

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5.10. The 30-days period within which the Plaintiffs were required to file their Replication came to an end on 22.09.2024 and the 45 days period i.e., the maximum statutorily permissible limit ended on 07.10.2024 and the Plaintiffs filed the Replication on 05.10.2024 before the maximum statutorily permissible limit.

5.11. If this Court permits the Plaintiffs' Replication to be taken on record, it would ensure that all points and contentions raised by the Defendant are duly answered by way of a pleading placed on record and that the rights of the Plaintiffs are duly safeguarded. Taking the Plaintiffs' Replication on record would not in any way prejudice the Defendant.

SUBMISSIONS ON BEHALF OF THE DEFENDANT:

6. The learned Counsel for the Defendant submitted that:

6.1. In the present case, the Written Statement was received by the counsel for the Plaintiffs through email dated 16.08.2024. The email dated 16.08.2024 is accordingly entitled to be treated as service of the Written Statement on the Plaintiffs and equally amounts to receipt of the Written Statement by the Plaintiffs for the purposes of DHC Rules. The 30 days deadline to file Replication was 15.09.2024. The maximum extension available of 15 days would take this deadline to a hard stop on 30.09.2024. However, the Plaintiffs filed their Replication only on 05.10.2024 i.e., after 5 days of the terminal deadline. The trite principle of vigilantibus non dormientibus jura subveniunt i.e., the law aids the vigilant, not those who sleep on their rights applies squarely to the

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present case. Therefore, the delay by the Plaintiffs in filing the Replication is not entitled to be condoned.

6.2. The Plaintiffs have filed the present Application based on an erroneous calculation. The Plaintiffs have calculated the commencement of 30 days period with an extendable period of 15 days to file Replication from 23.08.2024 i.e., the date of Written Statement being taken on record instead of 16.08.2024 i.e., the date of receipt of the Written Statement by the Plaintiffs. However, the statutory period to file replication is 30 days with additional 15 days of condonable period from the date of receipt of written statement by the plaintiff. In the present case the said period was 15.09.2024 i.e., 30 days from 16.08.2024 or 30.09.2024 after considering the additional condonable period of 15 days.

6.3. Rule 5 of Chapter VII of the DHC Rules states that-

"5. Replication. The replication, if any, shall be filed within 30 days of receipt of the written statement. If the Court is satisfied that the plaintiff was prevented by sufficient cause for exceptional and unavoidable reasons in filing the replication within 30 days. It may extend the time for filing the same by a further period not exceeding 15 days but not thereafter. For such extension, the plaintiff shall he burdened with costs, as deemed appropriate. The replication shall not be taken on record, unless such costs have been paid/ deposited. In case no replication is filed within the extended time also, the Registrar shall forthwith place the matter for appropriate orders before the Court. An advance copy of the replication together with legible copies of all documents in possession and power of plaintiff, that it seeks to file along with the replication, shall be served on the defendant and the replication together with the said documents shall not be accepted unless it contains an endorsement of service signed by the defendant/ his Advocate."

6.4. Rule 5 of Chapter VII of DHC Rules in an unambiguous manner stipulates that the replication, if any, shall be filed within 30 days

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of the receipt of written statement with an extendable period of 15 days but not thereafter, after seeking the leave of the Court by showing sufficient cause for exceptional and unavoidable reasons that prevented the filing of the replication within 30 days. Rule 5 of Chapter VII of DHC Rules, uses the mandatory language 'shall be filed' as well as the equally mandatory language 'but not thereafter'. This statutory language is not ornamental but a critical and decisive legislative mandate. It is only Rule 5 of Chapter VII of DHC Rules which provides for filing of replication, and not the CPC. On the Original side of this Court, it is the DHC Rules that prevail over CPC in the event of any conflict or in the event the CPC is silent, irrespective of the nature of the matter i.e., commercial or non-commercial. The principle of lex specialis derogat legi generali is a cornerstone of statutory interpretation and has been affirmed repeatedly by the courts. Manhar Sabharwal v. High Court of Delhi, 2024 SCC OnLine Del 5945 and the cases cited therein also reaffirm the overriding nature of the DHC Rules over the provisions of CPC.

6.5. Rule 5 of Chapter VII of DHC Rules constitutes an unequivocal bar, a hard stop beyond which no extensions can be granted. Any attempt to circumvent / override this absolute deadline is a contradiction to the clear language of the law and the equally clear legislative intent embedded in the DHC Rules. Any deviation from this strict framework undermines the sanctity of procedural rules, creating procedural uncertainty, encouraging laxity, and delaying the resolution of disputes.

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6.6. The Plaintiffs have filed their Replication on 05.10.2024 which is outside the maximum statutorily permissible limit of 30 + 15 days which came to end on 30.09.2024. Therefore, in light of the express command of the statute captured in the words 'it may extend the time for filing the same by a further period not exceeding 15 days but not thereafter', the right of the Plaintiffs to file the Replication must be closed and the Replication that has been filed vide Diary No. 4377459 of 2024 on 05.10.2024 must not be taken on record.

6.7. The Supreme Court in Union of India v. Popular Construction Co., (2001) 8 SCC 470 has also held the phrase 'but not thereafter' as an express exclusion barring recourse to Section 5 of the Limitation Act, 1963 and stressed the importance of strict adherence to this phrase, stating that any contrary interpretation would render the provision otiose, defeating the intent behind adding this phrase. The phrase 'but not thereafter' in Rule 5 of Chapter VII of DHC Rules amounts to an express exclusion and therefore bars any subsequent filing even if the delay beyond such period is only of 1 day.

6.8. Liberal interpretation which advances the purpose and object underlying a provision cannot be carried to the extent of doing violence to the plain and simple language used in the statute. It would not be reasonable or permissible for a court to rewrite a section or substitute words of its own for the actual words employed by the legislature based on liberal interpretation. In like manner as the 120 days deadline for filing written statement is

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absolute, a hard stop in commercial matters, so is the deadline for filing replication.

6.9. Reliance was placed on Presto Stantest Pvt. Ltd. v. Pacorr Testing Instruments Pvt. Ltd. & Ors. Neutral Citation: 2023:DHC:9461 to submit that the email dated 16.08.2024 containing the Written Statement is entitled to be treated as service of the Written Statement on the Plaintiffs and equally amounts to receipt of Written Statement by the Plaintiffs for the purposes of Rule 5 of Chapter VII of DHC Rules. Reliance was further placed on decisions of this Court in FITJEE Ltd. v. Vidya Mandir Classes & Ors., order dated 04.09.2023 in CS(OS) 656 of 2021, Shri Ram Housing Finance and investment of India Ltd. v. Omesh Mishra Memorial charitable Trust &Ors., order dated 04.10.2023 in CS(OS) 38 of 2023, , Asha & Ors. v. Rajbala & Ors. order dated 05.10.2023 in CS(OS) 662 of 2021, Smt. Saroj & Ors. v. Smt. Uma & Ors., order dated 05.12.2023 in CS(OS) 539 of 2023, Dr. Reddys Laboratories Ltd. v. Wockhardt Ltd. and Anr. order dated 26.02.2024 in CS(COMM) 101 of 2023, Pradeep kumar v. Sudesh Bhatia, order dated 15.07.2024 in CS(COMM) 500 of 2023, and

Mrs. Bushra Shuaib v. Mr. Hilal Ahmed, order dated 22.08.2024 in CS(OS) 135 of 2023, to submit that the period of 30 + 15 days for filing replication by the plaintiff is to be computed from 'date of receipt of written statement'.

6.10. Reliance was also placed on the decisions of this Court in Ram Swarup Lugani v. Nirmal Lugani & Ors. order dated 30.09.2019 in CS(OS) 182/2019, Ram Swarup Lugani v. Nirmal Lugani &

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Ors, 2020 SCC OnLine Del 2621, Ram Swarup Lugani v. Nirmal Lugani & Ors, Neutral Citation: 2020:DHC:3049-DB, Louis Dreyfus v. Nutralite Agro, Neutral Citation: 2024:DHC:238, Delhi Gymkhana Club v. Col. Ashish Khanna 2024 SCC OnLine Del 7022 and the Supreme Court's decision in Ram Swarup Lugani v. Nirmal Lugani & Ors, order dated 28.06.2021 in SLP (C) No. 15142/2020, to submit that replication cannot be filed beyond the period of 30 + 15 days as per the mandate given in Rule 5 Chapter VII of DHC Rules.

6.11. In SNS Products (supra) this Court has in error interpreted 'receipt' in Rule 5 Chapter VII of DHC Rules as being 'taken on record'. However, an error herein is apparent, an administrative function of the Registry of this Court namely 'taking on record' is equated with a legislature-directed mandate viz., 'service'. The two are not the same. The conflicting interpretations of 'date of receipt of written statement' is creating significant ambiguity regarding the commencement of the period for filing of Replication.

6.12. In the present Suit the Defendant is injuncted since 30.04.2024 and suffering irreparable loss. The delay in filing reply by the Plaintiffs is clearly to delay the proceedings and continue to enjoy the benefit of an ad-interim injunction.

6.13. As this Court through multiple decisions has consistently held that in both commercial and non-commercial matters the period for filing replication is to be calculated from 'date of service', accordingly for being time barred, the Replication filed by Plaintiffs on 05.10.2024 must not be taken on record.

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ANALYSIS AND FINDINGS:

7. The issue which arises for determination is whether the Replication filed by the Plaintiffs on 05.10.2024 is within the permissible period prescribed under Rule 5 of Chapter VII of the DHC Rules considering that the Written Statement in the present case was filed belatedly by the Defendant and the same was taken on record only after condoning the delay in filing the Written Statement.

8. The Defendant's contentions rest on a literal reading of the phrase 'receipt of the written statement', submitting that since the written statement was served by email on 16.08.2024, the period of 30 days expired on 15.09.2024 and the maximum statutorily permissible limit of 45 days further expired on 30.09.2024. On this reckoning, the Replication filed on 05.10.2024 would be 5 days beyond the statutory period prescribed for filing the Replication.

9. The Plaintiffs contend that since the Written Statement of the Defendant was filed beyond the statutorily permissible period of 30 days and was brought on record only upon the application for condonation of delay in filing the Written Statement was allowed by the learned Joint Registrar (Judicial) vide order dated 23.08.2024, the period of limitation for filing Replication must be computed not from the date of service of the Written Statement, but from the date on which the Written Statement was formally taken on record. The apparent conflict in interpretation in this regard has come up before this Court in several matters.

10. This Court in SNS Products Pvt. Ltd. v. Ijaz Uddin; 2023 SCC Online Del 787 has categorically observed that:

"11. The Division Bench in Ram Sarup Lugani (supra) while considering the aforesaid Rule came to the conclusion that the Rule

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5 of the Delhi High Court (OS) Rules is mandatory in nature and the replication cannot be permitted to be taken on record after the exhaustion of the maximum prescribed period of 45 days. The issue before the Division Bench was not with regard to the date from which the period of 45 days for filing the replication would begin. The issue before the Division Bench was in the context of whether delay in filing the replication can be condoned beyond the period of 45 days in terms of Rule 5 of Chapter VII of the Delhi High Court (OS) Rules. Therefore, the observations of the Division Bench would not be of any assistance to the defendant.

12. I do not agree with the submission of the defendant that in all cases the period for filing replication would commence from the date of written statement being supplied by the defendant to the plaintiff in terms of Rule 5 of the Delhi High Court (OS) Rules. Undoubtedly, the language used in Rule 5 of the Delhi High Court (OS) Rules is that the replication has to be filed within 30 days from the receipt of the written statement. This may be ordinarily so. However, where the written statement was filed beyond the statutory time limit and was taken on record only upon an application for condonation of delay being allowed by the Court, the aforesaid rule has to be interpreted in a manner that the period of 30 days will begin from the time the written statement is permitted to be taken on record.

13. This issue may be examined from a different point of view as well. There would be no requirement for the plaintiff to file a replication in the event that the application seeking condonation of delay in filing written statement is not allowed and the written statement is not taken on record. The plaintiff would be required to file replication only once the condonation in delay is allowed and the written statement is taken on record. Therefore, it is axiomatic that the period for filing replication would only commence from the date when the delay is condoned and the written statement is taken on record."

[Emphasis Supplied]

11. This Court in Aroti Sarkar & Anr. v. Ashok Sarkar & Ors; vide order dated 05.12.2023 in CS (OS) 823/2022 has observed that:

"9. In SNS Products Private Limited (supra), it has been rightly held that in Ram Sarup Lugani (supra) this court was not concerned with the issues as to the date from which the period of 45 days for filing the replication would began to run. It was also held in that case that when the written statement was filed beyond the statutory time limit and is directed to be taken on record only on an application for

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condonation of delay being allowed by the court, the relevant Rule has to be interpreted in the manner that the period of 30 days will begin to run from the time the written statement is permitted to be taken on record. In the present case, the written statement of defendant nos.1 & 2 and defendant nos.5 & 6 was directed to be taken on record only subject to payments of costs of Rs.2,000/- by the said defendants. The payment of costs was a necessary pre- condition for taking the written statement on record. That condition has still not been satisfied. Therefore, it cannot be said that the time limit for filing/taking on record the replication (along with the affidavit of admission/denial) has expired.

[Emphasis Supplied]

12. The strict line of authority relied upon by the Defendant undoubtedly holds that the time prescribed under Rule 5 of Chapter VII of the DHC Rules is mandatory and that a replication filed beyond the maximum statutorily permissible limit of 45 days cannot be entertained. However, as those authorities do not deal with the precise question arising in the present case, their applicability stands limited.

13. This Court, in a consistent line of decisions in SNS Products (supra),

Aroti Sarkar (supra), Parmeet Singh Anand (supra), Tata Sons (supra), and Neeraj Saran Srivastava (supra) has interpreted Rule 5 of Chapter VII of DHC Rules purposively. These decisions uniformly hold that where a written statement is filed beyond the prescribed period and can come on record only on an application for condonation of delay in filing the written statement being allowed by the court, the period for filing replication would commence from the date when the written statement is taken on record. The reasoning underlying this interpretation is compelling.

14. A replication is a responsive pleading filed by the plaintiff. If the court were to refuse condonation of delay in filing a belated written statement, the written statement would not become a part of the record and the necessity of filing replication would not arise at all. It would therefore be illogical to

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expect the Plaintiffs to compute time from the date of advance service of the Written Statement whose very status was sub judice. Such a construction would defeat the object of procedural rules, which is to enable effective adjudication on merits rather than to trap parties in technicalities.

15. In the facts of the present case, the Written Statement filed by the Defendant was directed to be taken on record on 23.08.2024 subject to costs, which were thereafter paid on 30.08.2024. Computed from 23.08.2024, the 30 days period expired on 22.09.2024 and the maximum statutorily permissible limit of 45 days expired on 07.10.2024. The Plaintiffs filed their Replication on 05.10.2024, squarely within this prescribed limit.

16. The objection of the Defendant premised on a literal application of Rule 5 of Chapter VII of DHC Rules divorced from the context of belated filing of the Written Statement, cannot therefore be sustained.

17. This Court is, therefore, of the opinion that the Replication filed by the Plaintiffs is within the maximum statutorily permissible limit of 45 days. The delay of 13 days in filing the Replication is accordingly condoned and the Replication filed by the Plaintiffs is taken on record.

18. The Application stands disposed of.

CS(COMM) 347/2024, I.A. 9522/2024 & I.A. 9523/2024

19. List for further proceedings on 14.01.2026.

TEJAS KARIA, J

SEPTEMBER 26, 2025

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