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DELHI HIGH COURT
Tushar Rao Gedela, J.
Machine Tools Aids India – Petitioner
versus
M/s. GNC Infra LLP and Anr. – Respondents
CM(M) 1325 of 2022 and
CM Appl. 51693 of 2022 (for stay)
Decided on 6.1.2023
Civil Procedure Code, 1908 – Order VIII Rule 1 and Order V Rule 1 – Written statement – Forfeiture of right to file written statement – Filing of written statement by defendant within 30 days from date of service of summons in commercial suits is a strict and mandatory provision, extension whereof would be subject only to conditions specified therein – Written statement even beyond 90 days period has been directed to be taken on record, for justifiable reasons – Service of summons itself is a very important procedural step undertaken by court and there cannot be any laxity insofar as commercial suits are concerned – No person can be prejudiced for mistake of court – Failure to file written statement within stipulated period or even extended period cannot to be detrimental to interest of defendant – Procedures are handmaid of justice and provisions are to be construed accordingly. (Paras 28, 33, 35, 40 and 42)
Result: Petition disposed of.
Key Points: - The judgment holds that in commercial suits under the Commercial Courts Act 2015, the 30-day requirement for filing a written statement is strict and extension is limited to up to 120 days with reasons recorded; failure beyond that can lead to forfeiture of the right to file (proviso to Order VIII Rule 1 and related provisions) (!) (!) (!) (!) . - The court emphasizes that summons service is a crucial procedural step and there cannot be laxity; failure to serve summons cannot be detrimental to the defendant, and procedures are to be construed as handmaid of justice (!) (!) . - The impugned order was set aside because summons were never issued, and the defendant’s liability to file within 30/120 days could not be imposed; the written statement was directed to be taken on record (!) (!) (!) . - The judgment directs that the endorsement on summons requiring the defendant to file within 30 days should be mandatorily included to ensure proper adherence to timelines in commercial suits (!) . - The decision references conflicting precedents and clarifies that where summons were not issued, the failure to file a written statement cannot be prejudicial to the defendant; the court must proceed in accordance with law and take the WS on record (!) (!) (!) (!) . - The Registrar is directed to ensure endorsement as mandatory on summons under Order V Rule 5 CPC for commercial suits (!) .
JUDGMENT
Tushar Rao Gedela, J.—Petitioner impugns order dated 15.10.2022, passed by the Trial Court in CS (Comm) - 350/2020 titled as M/s. GNC Infra vs. M/s Machine Tools Aids (India) & Anr., whereby, while allowing the application under Order VIII Rule 10 of Civil Procedure Code, 1908 filed by the respondent/plaintiff, the Court had simultaneously dismissed the application under Order VIII Rule 1 of the Code of Civil Procedure, 1908 (hereinafter referred to as “CPC”) filed by the Petitioner/ Defendant no.1, foreclosing the right of Petitioner to file Written Statement.
Brief Background of the Case:
2. Shorn of unnecessary details on merits of the case, which is yet to be adjudicated by the Trial Court, this Court, confines its consideration only to the facts which led to the impugned order. The relevant facts as culled out from Trial Court records are as follows:—
(a) A Commercial Suit, CS (Comm) 350/2020 titled as M/s GNC INFRA VS. M/s Machine Tools Aids (India) & Anr., is laid by the Respondent/Plaintiff seeking recovery of Rs. 1,48,73,337/- along with future and pendente lite interest @ 24% p.a. on the said sum till realization and other ancillary reliefs.
(b) Proceedings were instituted on 09.12.2020 on which date the learned Presiding Officer was on leave and the matter was kept for consideration. On 11.12.2020, the petitioner/defendant appeared in person through video conferencing which were noted by the Court Officer as the Presiding Officer was attending a Training Programme. The matter then was posted to 21.12.2020 on which date again the petitioner/defendant was represented through his son-in-law. Since the Presiding Officer was on leave, matter was adjourned to 04.01.2021.
(c) On 04.01.2021, proceedings were held vide Video Conferencing mode and the Trial Court was pleased to pass an order of ‘status quo’ in presence of petitioner/defendant.
(d) On 05.01.2022, counsel Sh. Amir Khan had appeared for the petitioner/defendant. On 21.02.2022 and 07.05.2022, counsel Sh. A.N. Khan had appeared. On 05.09.2022, the appearance of Sh. R.C. Tiwari counsel for petitioner/defendant is noted on which date the file was specifically taken up on an application of defendant no. 1 under the provisions of Order XXXIX Rule 4 r/w Section 151 CPC and application u/o VIII Rule 1 of CPC, 1908.
(e) The petitioner/defendant continuously stated that the complete copy of the plaint alongwith the annexures were never furnished to him or his counsel. Counsel for the petitioner/defendant had inspected the file on 22.08.2022, 25.08.2022 and 28.08.2022 and had applied for the certified copies of the plaint and its annexures. The same were received by the counsel for the petitioner/defendant on 08.09.2022.
(f) On 15.09.2022, counsel for the petitioner/defendant pointed out that the suit is deficit in proper and correct court fee, upon which the respondent/plaintiff undertook to make good the deficit fee during the course of the day. At this stage again, petitioner/defendant asked for directions for supply of plaint with documents which were ordered to be supplied.
(g) That thereafter, vide Order dated 20.09.2022, the Learned Trial Court had given five (5) days’ time to defendant to file reply to Order VIII Rule 1 CPC, 1908 filed by the Plaintiff and also to file the Written Statement subject to the orders to be passed on the applications under Order VIII Rule 4 and also Order VIII Rule 10 of CPC, 1908.
(h) In compliance, on 24.09.2022, the Petitioner/Defendant filed their written statement alongwith statement of truth, affidavit of admission/denial, list of documents, and replies to the application under Order XXXVIII Rule 5, Order VIII Rule 10 of CPC, 1908 and Section 12A of the Commercial Courts Act, 2015.
(i) In the meanwhile, on 27.09.2022 the applications under Order XXXIX Rule 1 and 2 and Order XXXIX Rule 4 of the CPC, 1908 were disposed of in view of the oral statement of learned counsel for petitioner/defendant that the peti
Written statement – Failure to file written statement within stipulated period or even extended period cannot to be detrimental to interest of defendant – Procedures are handmaid of justice and provi....
The strict and mandatory nature of the timelines for filing a written statement in commercial suits, as per the provisions of the Commercial Courts Act, 2015 and the amended provisions of the Code of....
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 appearance of an Advocate and filing of a Vakalatnama by him could not dispense with the requirement of service of summons. The time to file written statement commences only after service of the ....
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.
In commercial suits, written statements within 120 days from valid summons service (with plaint copy) must be accepted; extensions lean towards condonation if justified; procedural timelines subservi....
The timeline for filing a written statement in commercial suits starts from the date the plaintiff rectifies any court fee deficiencies, ensuring fairness and equity in the judicial process.
The court held that procedural unfairness due to technical irregularities can justify allowing the filing of Written Statements after delays, emphasizing the importance of justice over procedural str....
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