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IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR. JUSTICE EASWARAN S.

TUESDAY, THE 22^ND DAY OF SEPTEMBER 2026 / 31ST BHADRA, 1948 OP(C) NO. 2678 OF 2026 ARISING FROM ORDER DATED 10.08.2026 IN I.A.NO.1/2026 AND I.A.NO.2/2026 IN C.S.NO.55/2025 OF COMMERCIAL COURT, THIRUVANANTHAPURAM PETITIONERS/PETITIONERS/DEFENDANTS:

1 ANWAR BASHEER AGED 48 YEARS S/O. BASHEER, RESIDING AT SYEDNA, LIONS NAGAR, MUNDAKKAL, KOLLAM ., PIN - 691001

2 BASHEER AGED 75 YEARS S/O. SYED MOHAMMED, RESIDING AT SYEDNA, LIONS NAGAR, MUNDAKKAL, KOLLAM., PIN - 691001 BY ADVS.

SHRI.K.B.PRADEEP SMT.ANEETA NIRMAL MAMEN RESPONDENT / COUNTER PETITIONER/PLAINTIF F M/S ABAAN IMPEX PVT. LTD TC 4/938, CHITRA NAGAR, OPP. KOWDIAR PALACE, KOWDIAR POST, THIRUVANANTHAPURAM . REPRESENTED BY THE MANAGING DIRECTOR, NAJEEB ABDUL SAHID , S/O.

ABDUL SAHID OF CITY VILLA HOUSE NO. 5, GAZETTED OFFICERS NAGAR, AKG ROAD, PEROORKADA, THIRUVANANTHAPURAM . NOW RESIDING AT T.C.

12/2782, ABAANS, NCC ROAD, AMBALAMUKKU, OPP.

AMBALATHIL HALL, PEROORKADA P.O, THIRUVANANTHAPURAM., PIN - 695005 BY ADVS.

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SRI.ANOOP BHASKAR KUM.AMMU MANOHARAN NARAYANAN SMT.ANUGRA ANNA SHAJU THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 22.09.2026, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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“C.R”

EASWARAN S., J.

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O.P.(C)No.2678 OF 2026 ---------------------------------------------------------

Dated this the 22^nd day of September, 2026

JUDGMENT

Two vexed questions arise in this original petition:

(1) Can the Commercial Court extend the period prescribed by the proviso to Rule 1 of Order VIII of the Code of Civil Procedure, 1908 (CPC) following an order under Rule 7 of Order IX ?

(2) Does Rule 7 of Order IX of the CPC govern the operation of the proviso to Rule 1 of Order VIII ?

2. Brief facts necessary for the disposal of the original petition are as follows.

The 1st respondent filed C.S.No.55/2025 before the Commercial Court, Thiruvananthapuram seeking a decree for recovery of Rs.5,63,58,045/-, together with interest at the rete of 18% per annum on the principal amount of Rs.4,59,37,219/-, from the date of suit till realisation. The defendants received the summons in the suit on 02.06.2025. Under the proviso to Rule 1 of Order VIII of the CPC, the defendants ought to have filed the written statement on or before 02.07.2025. Upon expiry of 30 days, an application was required to be filed to receive the written statement within 120 days, which expired on 02.10.2025. In the meantime, the defendants were set ex parte under Order IX Rule 6(1)(a) of the CPC on 09.09.2025. Later, the plaintiff filed an application seeking to amend the schedule to the plaint, and the Commercial Court ordered notice thereon. After receiving notice, the defendants/petitioners entered appearance on 29.11.2025 and filed their vakalath. However, on the date of their appearance, they did not file the written statement. The defendants filed a written statement on 27.01.2026, along with an application seeking to receive the same and set aside the ex parte order passed on 09.09.2025. The plaintiff opposed the application, and the Commercial Court rejected the application by Ext.P7 order, which is impugned in the present original petition.

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3. Heard, Sri.K.B.Pradeep – learned counsel appearing for the petitioners and Sri.Anoop Bhaskar – learned counsel appearing for the respondent.

4. Sri.K.B.Pradeep – learned counsel appearing for the petitioners, pointed out that, when an application under Order IX Rule 7 of the CPC is allowed, the defendants are placed in the same position as they were on the date on which the order under Order IX Rule 6(1)(a) was passed. In the present case, an order under Order IX Rule 6(1)(a) of the CPC was passed on 09.09.2025, on which date, the petitioners had a further period of 22 days available to them. Therefore, once an application is filed and the court considers the reasons and sets aside the ex parte o