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* IN THE HIGH COURT OF DELHI AT NEW DELHI Reserved on: 28^thMarch, 2026 Date of Decision: 01^st April, 2026 + CM(M) 2569/2024 & CM APPL. 28662/2024 M/S KRISHAN KUMAR SOLE PROPRIETOR M/S BALAJI GLOWTICS .....Petitioner Through: Mr. Virendra Rawat, Mr. Rishabh Sharma and Mr. Siddharth N., Advs.

versus M/S JAILAXMI ENTERPRISES PVT LTD .....Respondent Through: Mr. Shubham Jai and Mr. Ashish Kumar Arya, Advs.

CORAM:

HON'BLE MR. JUSTICE RAJNEESH KUMAR GUPTA

O R D E R

1. The present petition has been filed under Article 227 of the Constitution of India, assailing the order dated 12^th January 2024 passed by the learned Trial Court in C.S. (COMM.) No. 37/2023, whereby the applications filed by the petitioner - one under Order VIII Rule 1 read with Section 151 of the Code of Civil Procedure, 1908 (“CPC”) seeking restoration of the right to file the written statement, and another application for condonation of delay in filing the written statement have been dismissed.

2. Heard. Record perused.

3. LearnedCounselforthepetitionerhasarguedthatthewrittenstatement could not be filed within the stipulated time granted by the learned Trial Court,asthepetitionerwasunabletocommunicatewithhispreviouscounsel, who had traveled outside India and the entire record was with him. It is contended that the petitioner should not suffer, as the non-filing of the written statement would seriously prejudice his right to defend a false and frivolous suit. It is further submitted that the petitioner shall suffer an irreparable loss if an opportunity to file the written statement is not granted.

4. Per contra, learned Counsel for the respondent has argued that there is no infirmity in the impugned order and that the present petition has been filed only to delay the Trial proceedings. It is accordingly prayed that the petition be dismissed.

5. Vide order dated 11^th August 2023, passed by the learned Trial Court, the right of the petitioner to file the written statement has been closed

6. The relevant portion of the impugned order dated 12^th January 2024 reads as follows:

“7. As per Code of Civil Procedure amended by the Commercial Courts Act, 2015, the written statement (WS) cannot be taken on record after expiry of outer limit of 120 days under any circumstances.

8. During the course of arguments, Ld. Counsel appearing on behalf of defendant fairly concedes that the writtenstatementwasnotfiledwithinmaximumperiodof120 days even if it was counted from the date of appearance of counsel before the court i.e. 03-3-2023.

9. It is now no more res integra that in the matter involvingcommercialdisputes,thecourtdoesnothavepower to condone delay beyond 120 days as held by Hon'ble Apex Court in case of SCG Contracts India Pvt. Ltd. (supra), to quote:-

“Aperusaloftheseprovisionswouldshowthat ordinarily a written statement is to be filed within a period of 30 days. However, grace period of a further 90 days is granted which the Court may employ for reasons to be recorded in writing and payment of such costs as it deems fit to allow such written statement to come on record. What is of great importance is the fact that beyond 120 days from the date of service of summons, the Defendant shallforfeittherighttofilethewrittenstatementand the Court shall not allow the written statement to be taken on record. This is further buttressed by the proviso in Order VIII Rule 10 also adding that the Court has no further power to extend the time beyond this period of 120 days.

10. Several High Court judgments on the amended Order VIII Rule 1 have now held that given the consequence of non-filing of written statement, the amended provisions of the Code of Civil Procedure will have to be held to be mandatory. [See Oku Tech Private Limited v. Sangeet Agarwal and Ors. by a learned Single Judge of the Delhi High Court dated 11.08.2016 in CS (OS) No. 3390/2015 as followed by several other judgments including a judgment of the Delhi High Court in Maja Cosmetics v. Oasis Commercial Pvt. Ltd. MANU/DE/7868/2017.

11.