Team  SoOLEGAL

Deadline Of 120 Days To File Written Statement In Commercial Suits Is Mandatory: SC

Team SoOLEGAL 20 Feb 2019 3:49pm

Deadline Of 120 Days To File Written Statement In Commercial Suits Is Mandatory: SC

It has been observed by the Supreme Court that proviso added to the Code of Civil Procedure by Commercial Courts, Commercial Division and Commercial Appellate Division of High Courts Act, 2015, is very much mandatory and therefore in commercial suits no written statement can be taken on record, if it is not filed within 120 days from the date of service of summons of the Suit.

Special Leave Petitions (SCG Contracts India Pvt. Ltd vs. K.S. Chamankar Infrastructure Pvt. Ltd) against Delhi High Court order was being considered by 2 judge bench including Justice Rohinton Fali Nariman and Justice Vineet Saran that allowed a written statement filed by the defendants even though 120 days had elapsed from the date of service of summons of this Suit.

CPC Amendments

 This proviso was added to Order VIII Rule 1 to the Code of Civil Procedure by the Commercial Courts, Commercial Division and Commercial Appellate Division of High Courts Act in 2015 and it was applied to commercial disputes of a specified value w.e.f 23.10.2015.

*[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 twenty days from the date of service of summons and on expiry of one hundred 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.]

Another proviso was added to Order VIII Rule 10

 *[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.]

Time Limits Mandatory

 The Supreme Court bench considered some Delhi HC judgments in which it was 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. The bench said:

“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 Order VIII Rule 1 has now been set at naught."

Section 151 can be invoked in cases like where grossly unjust consequences would otherwise ensue such kind of  contention was also rejected by the bench of Supreme Court. It said:

 "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."

Res judicata cannot stand in the way of an erroneous interpretation of a statutory prohibition

 The bench also relied on earlier order by the High Court in which he was permitted to file the written statement beyond 120 days, and principle of res judicata would apply. It was observed by the bench that in this SLP the said order is also impugned, the court held that :

"This doctrine cannot be used when the res is not yet judicata.. Even assuming that the 05.12.2017 order is final, res judicata cannot stand in the way of an erroneous interpretation of a statutory prohibition."


Tagged: commercialsuits   sc   deadline   cpc  
Did you find this write up useful? YES 1 NO 0
Send
Digital Payment Systemview all

Active Members

Have you activated yours ?

New Members view all
×

C2RMTo Know More

Something Awesome Is In The Work

0

DAYS

0

HOURS

0

MINUTES

0

SECONDS

Sign-up and we will notify you of our launch.
We’ll also give some discount for your effort :)

* We won’t use your email for spam, just to notify you of our launch.