SUPREME COURT OF INDIA – THE WRITTEN STATEMENT CANNOT BE FILED AFTER THE LAPSE OF 120 DAYS FROM THE SERVICE OF THE SUMMONS UNDER COMMERCIAL COURTS ACT, 2015, IN ANY CASE, RIGHT TO FILE WRITTEN STATEMENT IS FORFEITED AFTER 120 DAYS

Hon’ble Supreme Court in the case of M/s SCG Contracts India Pvt. Ltd. vs K. S. Chamankar Infrastructure Pvt. Ltd. dealt with the question that whether written statement can be filed beyond the period of 120 days from the date of service of summons or not in the cases filed under Commercial Courts Act, 2015.

At the outset it is pertinent to mention that with the introduction of Commercial Courts Act, 2015 there have been specific amendment to the CPC with respect to the Commercial Courts Act and few such amendment, among others, as relevant to present case are- Amendment to Order  V Rule 1, in sub rule (1) for the second proviso, the following proviso was substituted:

“Provided further 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 days, 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 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.”

Equally, in Order VIII Rule 1, a new proviso was substituted as follows:

“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.”

This was re-emphasized by re-inserting yet another proviso in Order VIII Rule 10 CPC, which reads as under: –

“Procedure when party fails to present written statement called for by Court.- Where any party from whom a written statement is required under Rule 1 or Rule 9 fails to present the same within the time permitted or fixed by the Court, as the case may be, the Court shall pronounce judgment against him, or make such order in relation to the suit as it thinks fit and on pronouncement of such judgment a decree shall be drawn up.

Provided further that no Court shall make an order to extend the time provided under Rule 1 of this Order for filing of the written statement.” A perusal of these provisions would show that ordinarily a written statement is to be filed within a period of 30 days.

Hon’ble Apex Court while dealing with the issue at hand, with strict application of the above amendments, laid down following guidelines:

  • The defendant is required to file Written Statement under Commercial Courts Act within 30 days from the date of service of summons.
  • That the grace period of additional 90 days is provided to the defendant to file the Written Statement, with due permission of the court and subject to payment of such cost as the court may deem fit.
  • 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 beyond 120 days from the date of service of summons.
  • Order VII Rule 11 proceedings are independent of the filing of a written statement once a suit has been filed, the defendant cannot use the application under Order VII Rule 11 as a ruse to retrieve the lost opportunity to file the written statement.
  • Lastly, where there is a special law in place, recourse to the inherent powers of the court under Section 151 of the Code of Civil Procedure is not justified and the special law cannot be circumvented by recourse to the inherent power under Section 151 to do the opposite of what is stated therein.

Amaresh Singh

Advocate Amaresh Singh is a practicing lawyer in Supreme Court of India, Delhi High Court and District Courts of Delhi including Saket Court, Tis Hazari Court, Patiala House Court, Karkardooma Court, Dwarka Court in the field of Civil, Criminal, Corporate, Industry & Labour Laws, Banking and DRT matters, Intellectual Property Rights (Trademark/Copyright) and related cases.