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 days of proper service.

JUDGMENT :

B.P. Routray, J.

1. Heard Mr. D.P. Mohanty, learned counsel for the Petitioners and Mr. B. Bhuyan, learned senior counsel along with Mr. S.S. Bhuyan, learned counsel for the Opposite Parties.

2. Present CMP is directed against impugned order dated 25^th October, 2024 of learned Senior Civil Judge (Commercial) Court, Cuttack passed in C.S. (III) No.255 of 2019, wherein the prayer of the Defendants to accept their written statement has been rejected.

3. Opposite Parties – Plaintiffs filed the suit in the year 2019 but the summons on the Defendants (present Petitioners) could not be made sufficient till 2023. As a result of non-service of summons on the Defendants in regular course, the substituted service of notice by way of paper publication was made on 9^th February, 2023, fixing the date of appearance to 20^th March, 2023. On 20^th March, 2023 the Defendants were set ex-parte due to their non-appearance before the court. However, they entered appearance in the suit on 13^th April, 2023 and filed a petition under Order 9 Rule 7 to set aside the order setting them ex parte. Pending said petition filed under Order 9 Rule 7 C.P.C., the Defendants filed a memo on 6^th February, 2024 seeking a direction to the Plaintiffs for service of copy of the plaint on them. The court allowed said prayer on the same date and the copy of the plaint was filed by the counsel for Plaintiffs in court on 21^st February, 2024. However, said copy of the plaint could only be served on the Defendants on 28^th June, 2024 and they filed the written statement on 21^st September, 2024. But the trial court rejected acceptance of such written statement by the Defendants on the ground ‘beyond the statutory period’.

4. It is to be reminded here that the dispute is a commercial dispute pending before the commercial court. Order 8 Rule 1, CPC in respect of Commercial Courts Rules is as follows-

“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 as the court deems fit, but which shall not be later than one hundred and twenty days from the date of service of summons and on expiry of one hundred and 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.”

Further Rule 10 of Order 8 in respect of the Commercial Court prescribes as follows:-

“Where any party from whom a written statement is required under Rule 1 or Rule 9 fails to present the same within the time permitted or fixed by the court, as the case may be, the court shall pronounce judgment against him, or make such order in relation to the suit as it thinks fit and on the pronouncement of such judgment a decree shall be drawn up:

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.”

5. Both the aforesaid provisions makes the mandatory period of filing the written statement within 120 days from the date of acceptance of summons. The Hon’ble Supreme Court in the case of SCG Contracts (India) Private Ltd. Vs. K.S. Chamankar Infrastructure Private Ltd. and Others, (2019) 12 SCC 210 , have observed after referring to such provisions of the CPC regarding filing of written statement by the Defendant, as follows:-

“8. xxxxx xxxxxx xxxxxx A perusal of these provisions would show that ordinarily a written statement is to be filed within a period of 30 days. However, grace peri