Counter claims must be filed before the settlement of issues in a trial stage; filing after issues are settled is not maintainable.

ORDER :

S. SOUNTHAR, J.

The Civil Revision Petition is filed challenging the order passed by the District Judge, Commercial Court, Salem in Check Slip dated 24.06.2025 in Filing No.COS/55/2023 in C.O.S.No.10 of 2023 returning the counter claim filed by the petitioners/defendants together with written statement on the ground that the counter claim was not maintainable when the suit is in the stage of trial.

2. The respondent herein filed a Commercial Suit in C.O.S.No.10 of 2023 against the petitioners for recovery of money to the tune of Rs.2,84,85,962/- based on Promissory Notes dated 07.09.2020 and 18.02.2021. The petitioners/defendants filed C.R.P.No.2123 of 2023 seeking to strike off the plaint on the ground that the plaintiff failed to exhaust the mandatory pre-litigation process under Section 12-A of the Commercial Courts Act, 2015. The said civil revision petition was heard along with other connected civil revision petitions and the plaint was ordered to be struck off for non-compliance of Section Section 12-A of the Commercial Courts Act, 2015. Aggrieved by the said order passed by this Court, the Special Leave Petitions in S.L.P.(C).Nos.28226-28227 of 2023 were filed before the Apex Court and the same were disposed of as follows:-

“Learned senior counsel appearing for both the sides agree that not only the order of the High Court but also the order of the Commercial Court against which petition(s) under Article 227 of the Constitution of India were filed before the High Court deserves to be set aside and the two suits may proceed from the stage at which the impugned order was passed by the Commercial Court, vide order dated 28th July, 2022. Ordered accordingly.

It will be open for the parties to raise all rights and contentions available. Further the parties would be at liberty to file additional affidavit, additional evidence, additional pleadings and applications, as may be necessary, before the Commercial Court which shall proceed in accordance with law.

Interim orders, which existed prior to the impugned order, passed by the Commercial Court shall stand revived.

Applications under Order VII Rule 11 to be heard and decided first by the Trial Court before proceeding further with the suits.”

3. The order in the above said Special Leave Petitions was passed by the Apex Court on 13.08.2024. Since the Apex Court granted liberty to the parties to file additional pleadings, utilising the same, the petitioners filed their written statement on 10.09.2024, the copy of the same is included in Serial No.1 in the typed-set of papers filed by the respondents dated 13.11.2025. It is also seen from the typed-set of papers that as per the direction issued by the Apex Court, the petition for rejection of the plaint was taken up for consideration and the same was dismissed by the Trial Court. Aggrieved by the same, the petitioners filed civil revision petition in C.R.P.No.2506 of 2025 before this Court and the same came to be dismissed on 19.09.2025. In the meantime, the petitioners/defendants filed yet another written statement on 24.06.2025 along with counter claim seeking recovery of Rs.98,76,912/- from the respondent/plaintiff. The said written statement together with counter claim was returned by the Trial Court on the ground that the counter claim was not maintainable at the stage of trial. Aggrieved by the said order, the petitioners have come before this Court.

4. Mr.N.Jothi, learned Senior Counsel appearing for the petitioners submitted that the Trial Court appeared to have returned the counter claim on the ground that outer time limit of 120 days for filing of written statement in Commercial Courts got expired. He further submitted that in Special Leave Petitions order referr