The legislative intent to limit the time for filing a written statement and take away the court's discretion in extending the time, as reflected in the provisions of The Commercial Courts, Commercial Division and Commercial Appellate Division of High Courts Act, 2015 and the amendments to the CPC.

IA No. 5853/2016 (for condonation of delay in filing the written statement)

1. This is an application filed by Defendants 1, 3 and 5 seeking condonation of delay in filing the written statement.

2. The application has been opposed by learned counsel for the Plaintiff by drawing attention of the Court to Section 16 read with the Schedule to The Commercial Courts, Commercial Division and Commercial Appellate Division of High Courts Act, 2015 (Act) in terms of which the second proviso to Order V Rule 1 as well as the proviso to Order VIII Rule 1 have both been substituted by the following proviso:-

“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.”

3. He also drew attention to the amendment to the CPC in terms of Section 16 of the Act read with Schedule thereof whereby a proviso has been inserted after Order VIII Rule 10 to the following effect:-

“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.”

4. The submission of Mr. Rajat Kumar, learned counsel for the Plaintiff, is that the present suit being in the nature of a commercial dispute within the meaning of Section 2(1)(c) of the Act and with the suit having been filed on 21st November 2015, four days after the directions were issued by this Court creating the Commercial Division and Commercial Appellate Division of the Court, the present suit is a commercial suit to which the provisions of the Act apply. He also points out that under Section 21 of the Act, its provisions shall have effect notwithstanding anything inconsistent therewith contained in any other law for the time being in force. It is submitted that with the Defendants 1, 2 and 3 having accepted noticed in the Court on 27th November 2015, the time limit for filing the written statement began to run from that date. The outer limit of 120 days expired on 26th March 2016 and the written statement was filed by Defendants 1, 3 and 5 on 7th May 2016.

5. Mr. Rajat Kumar further points out that the written statement was filed even beyond the period of four weeks granted by the Joint Registrar (JR) by the order dated 23rd March 2016. He refers to the proviso to Order VIII Rule 10 inserted by the Schedule to the Act which precludes the Court from granting any further time beyond the aforementioned period.

6. Mr. Neel Mason, learned counsel for the Defendants 1, 3 and 5, on the other hand refers to Section 15 occurring in Chapter V of the Act which pertains to “transfer of pending cases”. He submits that with the transfer of the present suit to the commercial division, a new time limit can be prescribed by the Court to which the suit has been transferred in terms of the proviso to Section 15(4) of the Act, without recourse to the amended second proviso to Order V Rule 1 CPC. He accordingly submitted that the Court can in its discretion condone the delay in filing the written statement.

7. The above submissions have been considered. The Supreme Court had in Kailash v. Nankhu, JT 2005 (4) SC 204 interpreted the proviso to Order VIII Rule 1 CPC as still giving discretion to the Court to extend the time for filing a written statement. The proviso to Order VIII Rule 1 CPC in its original form was held by the Supreme Court as not specifying any consequences for non-compliance with the time line envisaged thereunder. Therefore the time line under Order VIII Rule 1 CPC was held t