VIKRAMAJIT SEN, J.

( 1 ) THE QUESTION TO BE DECIDED IS WHETHER THE defendant HAS SUCCESSFULLY DISCLOSED A CASE FOR THE exercise IN ITS FAVOUR OF THE DISCRETION POSSESSED BY this COURT IN ITS FAVOUR UNDER ORDER VIII RULE 1 OF THE code OF CIVIL PROCEDURE AS AMENDED WITH EFFECT FROM 1. 7. 2002, AND IN PARTICULAR WHETHER ANY DISCRETION remains REPOSED WITH THE COURT AFTER THE EXPIRY OF ninety DAYS FROM THE DATE OF SERVICE OF SUMMONS ON THE defendant. THE RELEVANT PROVISIONS PRIOR AND POST THE amendment READ AS FOLLOWS: OLD PRESENT

R. 1. WRITTEN STATEMENT.-- (1) THE DEFENDANT SHALL, AT OR before THE FIRST HEARING OR WITHIN SUCH TIME AS THE court MAY PERMIT, PRESENT A WRITTEN STATEMENT OF HIS defence. (2) SAVE AS OTHERWISE PROVIDED IN RULE 8a, WHERE THE defendant RELIES ON ANY DOCUMENT (WHETHER OR NOT IN HIS possession OR POWER) IN SUPPORT OF HIS DEFENCE OR CLAIM for SET-OFF OR COUNTER-CLAIM, HE SHALL ENTER SUCH documents IN A LIST, AND SHALL,-- (A) IF A WRITTEN STATEMENT IS PRESENTED, ANNEX THE LIST to THE WRITTEN STATEMENT: PROVIDED THAT WHERE THE defendant, IN HIS WRITTEN STATEMENT, CLAIMS A SET-OFF OR makes A COUNTER-CLAIM BASED ON A DOCUMENT IN HIS possession OR POWER, HE SHALL PRODU

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