JUDGMENT :

(Ravi Krishan Kapur, J.)

1. This is an application for taking on record the written statement.

2. The suit is for disparagement and has been instituted before the Commercial Division of this Court. It is alleged that the writ of summons (alongwith the plaint) was served at the corporate office of the defendant on 29 June 2022. Thereafter, on 7 July 2022 the writ of summons (alongwith the plaint) was served at the registered office of the defendant. It is further contended that the writ of summons does not conform with the mandate of Order V Rule I of the Code of Civil Procedure, 1908 (CPC) as amended by the Commercial Courts Act, 2015. The endorsement on the writ of summons provides that “in case the defendant fails to file the written statement within a period of 30 days, the defendant 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 may deem to be fit and proper but which shall not be latter than 120 days from the date of service of the Writ of Summons”. Thus, it is alleged that the time to file the written statement does not begin unless the summons as contemplated under Order V Rule I of the CPC is served on the defendant. It is further alleged that service at the corporate office of the defendant is not good service since service must be effected only at the registered office of the company. The written statement was affirmed on 4 November 2022 and served on the plaintiff on that date itself. However, since the Master, Original Side, was absent on 7 November 2022 and 8 November, 2022 respectively, the summons could only be signed on 9 November 2022. In any event, since the writ of summons was delivered at the registered office only on 7 July 2022, the 120 day period should be counted from that date and not from any other date. Thus, there is no delay in the filing of the written statement and the same be taken on record. The prayers for revocation of leave under Clause 12 of the Letters Patent, 1865 and for dismissal of the suit have not been urged at the time of hearing of this application.

3. On behalf of the plaintiff it is contended that, the writ of summons had been duly served at the corporate office of the defendant on 29 June, 2022. Thereafter, on 7 July 2022 the writ of summons was served at the registered office of the defendant. The period of 120 days expired on 27 October 2022 and thereafter the defendant lost the right to file the written statement. It is also contended that the date of affirmation of the written statement is irrelevant. Moreover, the summons to this application had been taken out only on 9 November, 2022 which is also beyond the stipulated period of 120 days from the date of receipt of the writ of the summons both at the registered office and the corporate office of the defendant. The fact that a copy of the written statement has been served by the defendant alongwith this application on 9 November, 2022 is immaterial since admittedly no written statement has been filed within the stipulated mandatory period.

4. Order V Rule 1 sub-rule (1) of the Code of Civil Procedure, 1908 (CPC) has been substituted and reads as follows:

2.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 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.

The substituted proviso of Order VIII Rule 1 of the CPC is as follows:

Provided that where the defendant fails to fi