Failure to file a written statement in time in commercial suits results in forfeiture of the right to file, even if allowed to participate in proceedings.

JUDGMENT

The petitioner concedes that he had not filed his written statement in C.S.No.183/2022, filed by the respondent herein before the Commercial Court-III, Ernakulam, within the statutorily mandated period of 120 days. He says that the learned Commercial Court, however, had set him ‘ex parte’ much earlier on 28.10.2022; and therefore, that he moved applications to set aside the afore order and to permit him to file a written statement; but, which has been dismissed through Ext.P6 order, and thus impugns it as being illegal and unlawful

2. Sri.Ajith Viswanathan – learned counsel for the petitioner, vehemently argued that, when his client had already been set ‘ex parte’ by the Trial Court, the finding in Ext.P6 - that he can continue to defend the proceedings and also to cross-examine the witnesses of the plaintiff – is rendered nugatory. He contented that, this is more so because, when his client is not allowed to file written statement, his defence would be without any feet to stand on;

and thus prayed that Ext.P6 be set aside.

3. Sri.Reji George – learned counsel for the respondent/plaintiff, in response, submitted that it has already been well settled - without requirement for re-statement - that, when, in a Commercial Suit, the defendant does not file the written statement within the time frame statutorily mandated, he forfeits his right to do so and that this cannot be relaxed by any court. He submitted that, however, this will not cause any real prejudice to the petitioner herein because, in Ext.P6, the learned Commercial Judge has already allowed him to participate in the proceedings and even to cross-examine the witnesses of his client.

4. I must say that there is great force in the afore submissions of Sri.Reji George because, when the petitioner concedes unequivocally, that he did not file the written statement within the statutorily permitted time frame, it neither could not have been extended by the Commercial Court, or by even by this Court, acting under Article 227 of the Constitution of India. This is the settled position of law, which cannot be now disturbed.

5. As regards the validity of Ext.P6, even though the petitioner says that he has been set ‘ex parte’, it is clear therefrom that the learned Judge has allowed him to continue in the proceedings and even to cross-examine the witnesses of the plaintiff. One, therefore, cannot find any reason why the petitioner should be aggrieved with Ext.P6, to the extent to which, it has not vacated the alleged order ‘setting him ex parte’ in the proceedings.

In the afore circumstances, reserving all liberties - as have already been mentioned in Ext.P6 - to the petitioner, I dismiss this Original Petition; thus afÏrming Ext.P6 order.