The court emphasized that the extension of time to file the written statement must be justified and recorded in writing, and the defendant cannot claim an extension of time as a matter of course.

JUDGMENT

Navin Chawla, J. - The hearing has been conducted through video conferencing.

2. This appeal has been filed challenging the order dated 30.01.2020 passed by the learned District Judge-Commercial Court-05 (Central) in Suit, being CS (Comm) No.152/2020, Anoop Kumar Jain v. Sunil Sahoo, holding that as the appellant herein (defendant in the Suit) has not filed the written statement till the date of the order, his right to file the written statement stands closed and his defence struck off.

3. The respondent had filed the above Suit under the Commercial Courts Act, 2015 (hereinafter referred to as the 'Act'), on which the learned Trial Court issued summons to the appellant vide order dated 23.09.2019. Admittedly, the summons was served on the appellant on 20.10.2019. As the appellant, in spite of service of summons, did not file his written statement, the learned Trial Court by way of the Impugned Order was pleased to close the right of the appellant to file the written statement.

4. The appellant claims that on the next date of hearing, that is, 04.02.2020, the appellant was represented by a Legal Aid counsel who verbally requested the learned Trial Court to give one more opportunity to file the written statement, however, this request was not acceded to by the learned Trial Court. It may be noted that the copy of the order dated 04.02.2020 has not been placed by the appellant on record in this appeal.

5. The learned counsel for the appellant submits that the learned Trial Court has erred in law in closing the right of the appellant to file his written statement prior to the expiry of 120 days from the date of the receipt of summons by the appellant. He submits that in terms of the Act, a period of 30 days is granted to the defendant to file the written statement. This period can be extended upto 120 days on the given facts and circumstances and, therefore, the right to file the written statement cannot be forfeited before the expiry of 120 days from the date of receipt of summons by the defendant/appellant herein.

6. We have considered the arguments made by the learned counsel for the appellant, however, find no merit in the same.

7. As noted hereinabove and admittedly, the suit is in relation to a commercial dispute governed by the provisions of the Commercial Courts Act. Order V, Rule 1, sub-rule (1) of the Code of Civil Procedure, 1908 (hereinafter referred to as "the Code") provides that where a suit has been duly instituted, the summons may be issued to the defendant to appear and answer the claim and to file the written statement of his defence, if any, within 30 days from the date of service of summons on that defendant. The second Proviso to Order V, Rule 1, sub-rule (1), as applicable to commercial disputes of a specified value, reads as under:

"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."

(Emphasis supplied)

8. Order VIII Rule 1 of the Code re-emphasizes that the defendant shall, within 30 days from the date of service of summons on him, present a written statement of his defence. Proviso to Order VIII Rule 1 of the Act, as applicable to commercial disputes, reads as under:

"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