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IN THE HIGH COURT OF ORISSA AT CUTTACK

CMP No. 1086 OF 2023

Swastika Traders, Khurda

….

Petitioner

Mr. Jahidur Raheman, Advocate

-versus-

Capricious Food Products (P) Ltd.,

Khurda

….

Opp. Party

CORAM:

JUSTICE K.R. MOHAPATRA

ORDER

Order No.

20.11.2023

2.

1.

This matter is taken up through hybrid mode.

2.

The Petitioner in this CMP seeks to assail the order dated

18^th August, 2023 (Annexure-4) passed by learned Senior Civil

Judge (Commercial Court), Bhubaneswar in C.S. No.155 of

2022, whereby the written statement filed by the Defendant-

Opposite Party has been accepted after the statutory period.

3.

Mr. Raheman, learned counsel for the Petitioner submits

that admittedly, the Defendant-Opposite Party appeared on 15^th

September, 2022 and filed the written statement on 1^st March,

2023, i.e., after the statutory period 120 days provided under

Order VIII Rule 1 CPC for filing the written statement. It is his

submission that the provision under Order VIII Rule 1 CPC is

mandatory in respect of the Commercial Courts. He also relied

upon the ratio reported in 2019 (I) OLR 978, wherein relying

upon the case law in M/S SCG Contracts India Pvt. Ltd. –v-

K.S. Chamankar Infrastructure Pvt. Ltd. and others, reported

in 2019 SCC OnLine SC 226, it is stated that the period of

limitation for filing of written statement in a commercial suit is

mandatory in nature.

Digitally Signed

Signed by: MADHUSMITA SAHOO

Designation: Senior Stenographer

Reason: Authentication

Location: High Court of Orissa, Cuttack

Date: 21-Nov-2023 17:08:14

Signature Not Verified

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4.

However, the Defendant-Opposite Party filed the written

statement along with the petition under Section 5 of the

Limitation Act for condonation of delay and for its acceptance.

Learned trial Court without discussing the provision of law and

the objection filed by the Plaintiff-Petitioner on 4^th May, 2023,

allowed the petition by a cryptic order. Hence, this CMP has

been filed.

5.

Considering the submission made by learned counsel for

the Petitioner and on perusal of the record, it appears that

learned Commercial Court has not discussed the scope of

provision under Order VIII Rule 1 CPC for filing of a written

statement in a Commercial Court. Period of limitation provided

under Order VIII Rule 1 CPC for filing of the written statement

in a Commercial Court is mandatory in nature. The Commercial

Court has no power to accept a written statement beyond the

statutory period. Order VIII Rule 1 CPC has been amended to

make the provision mandatory in a commercial suit. The

following proviso has been incorporated to make the rule

mandatory in a commercial suit of specified value. It reads thus:

"Provided further 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 twenty

days from the date of service of summons and on

expiry of one hundred 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."

Digitally Signed

Signed by: MADHUSMITA SAHOO

Designation: Senior Stenographer

Reason: Authentication

Location: High Court of Orissa, Cuttack

Date: 21-Nov-2023 17:08:14

Signature Not Verified

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This relevant provision was lost sight of by learned Commercial

Court while adjudicating the petition for acceptance of the

written statement.

6.

In view of the order proposed to be passed, this Court

feels that issuance of notice to the Defendant-Opposite Party and

aw