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IN THE HIGH COURT OF KERALA AT ERNAKULAM
Basant Balaji,J
Capital Retreat Private Limited – Appellant
Versus
Gopakumar B. Nair, S/o Late Balakrishnan Nair – Respondent
JUDGMENT :
BASANT BALAJI, J.
The question that arise for consideration in this Original Petition is whether the defendant can forfeit the right to file a written statement, if the same is not filed within 120 days from the date of service of summons.
2. The petitioner is the defendant in C.S.No.73 of 2021 on the files of Principal Sub Court, Thiruvananthapuram. The respondent filed the suit under Section 26 read with Order 37 Rules 1 and 2 CPC read with Section 6 of the COMMERCIAL COURTS ACT , 2015 (for short 'the C.C.Act'), for the realisation of an amount of Rs.5,03,79,000/- from the defendant, together with future interest at the rate of 18% p.a., from the date of institution of the suit till realisation. On receipt of summons, the petitioner entered appearance and sought leave of the court to defend the suit under Order 37 Rule 3(5) CPC as I.A.No.8 of 2021. By order dated 10.3.2022, leave was granted to the defendant, who was directed to file a written statement within 10 days. On 25.3.2022, the defendant sought time for filing a written statement, which was refused by the court and the defendant was set ex parte.
3. Meanwhile, the respondent/plaintiff challenged the order in I.
Defendants in commercial suits forfeit the right to file a written statement if not submitted within 120 days from the service of summons, as per amendments in the Commercial Courts Act.
Defendants must file a formal application to extend time for the written statement beyond thirty days, as failure to do so results in forfeiture of the right to file.
(1) Written statement in a commercial suit – Limitation period – Power, authority and jurisdiction of Court to extend time to file written statement mandatorily ceases after said mandated 120 days.(2....
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.
The right to file a written statement is forfeited after 120 days unless justifiable grounds for extension are shown, requiring substantive reasoning recorded by the court.
The main legal point established in the judgment is the requirement for the defendant to file the written statement within the prescribed period, the consequences of failing to do so, and the applica....
The mandatory timeframe for filing a written statement is reset when service of summons does not include a copy of the plaint, thereby allowing acceptance of the written statement if filed within 120....
The main legal point established is that the doctrine of relation back can be applied to deem a written statement as filed within the limitation period, considering the circumstances preventing its t....
Non-payment of costs should not negate the right to file a written statement if filed within the statutory period, ensuring substantive rights are preserved.
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