When a Commercial Suit Defendant Loses the Right to File a Written Statement and Faces an Ex Parte Order

Commercial litigation in India operates on strict timelines, and one question keeps arising before Commercial Courts across the country: whether a Commercial Court can set aside an ex parte order after the statutory period for filing a written statement has already expired. The answer is nuanced, because two distinct powers of the Court are involved — the power to restore a defendant against an ex parte order, and the power (or lack of it) to accept a written statement beyond the statutory window.

The Short Answer

A Commercial Court generally cannot extend the time for filing a written statement or accept one after the expiry of the statutory 120-day period, because the amended provisions of Order VIII Rule 1 and Order VIII Rule 10 of the Code of Civil Procedure, 1908 make the timeline mandatory and prescribe forfeiture of the right to file a written statement 2020 0 Supreme(Bom) 690. However, the Commercial Court's power under Order IX Rule 13 to set aside an ex parte order or decree on showing of sufficient cause remains intact — Order IX of the CPC was not amended by the Commercial Courts Act, 2015 2024 0 Supreme(Bom) 640. The critical point is that setting aside the ex parte order restores the suit, but it does not automatically revive the forfeited right to file a written statement.

The Mandatory 120-Day Rule in Commercial Suits

Section 16 of the Commercial Courts Act, 2015 amended Order VIII Rule 1 and Order VIII Rule 10 of the CPC to impose a strict regime on commercial disputes:

• The written statement must be filed within 30 days from service of summons.
• The Court may extend the period for reasons recorded, but only up to a maximum of 120 days from service of summons.
• Beyond 120 days, the defendant forfeits the right to file the written statement, and the Court shall not allow it to be taken on record 1987 0 Supreme(SC) 1032.

This is a deliberate departure from the position in ordinary civil suits, where Order VIII Rule 1 is treated as a directory provision and courts retain inherent discretion to condone delays. The unamended provision continues to govern non-commercial disputes 2020 1 Supreme 409. In commercial suits, the legislative intent is to secure expeditious disposal of high-value disputes through a strict, irreversible timeline 2026 0 Supreme(Telangana) 296.

The Interplay Between Order IX Rule 13 and the Written Statement Timeline

Setting aside an ex parte order is a separate jurisdiction from accepting a written statement. The courts have clarified that the power under Order IX Rule 13 was neither modified nor curtailed by the Commercial Courts Act, 2015, since the Schedule to Section 16 leaves Order IX untouched 2024 0 Supreme(Bom) 640. So, a defendant who shows sufficient cause can succeed in getting the ex parte decree or order set aside.

But restoration of the suit is not equivalent to reinstatement of pleadings. Once the ex parte decree is set aside and the suit is restored, the defendant cannot be relegated back to the position existing prior to the date of hearing; whether to permit filing of a written statement after the statutory period is a matter for the trial court's considered discretion, and the defendant has no automatic entitlement 2022 5 Supreme 344. In commercial suits, that discretion is further constrained by the mandatory forfeiture rule — if the 120-day period has lapsed, the Commercial Court typically has no power to take the written statement on record

Classico Brands (India) Pvt. Ltd. vs MIS Stella Industries Limited

An Important Exception: Suits Transferred Under Section 15(2)

Where a suit is transferred from a regular civil court to a Commercial Court under Section 15(2) of the Commercial Courts Act, 2015, and the procedure for filing the written statement was not completed at the time of transfer, the Commercial Court has the power and jurisdiction to prescribe a new time period for filing the written statement under the proviso to Section 15(4), irrespective of the expiry of 120 days from the original date of service of summons 2023 0 Supreme(AP) 1374. Once that fresh timeline expires, however, the forfeiture consequences under Order VIII Rules 1 and 10 apply in full force.

Defective Service Can Reset the Clock

Another situation in which the strict timeline yields is defective service. If summons were served without a copy of the plaint, courts have held that the service itself is incomplete, and the 120-day period is computed only from the date of proper service accompanied by the plaint copy 2025 0 Supreme(Ori) 957. Similarly, where a counter-claim was not properly served, the limitation for filing a written statement to the counter-claim was held not to have commenced at all

Nilesh Suresh Kene VS Ashok Durga Pillay

Procedure vs. Substantive Justice: How Courts Balance the Two

Not every case ends in forfeiture without a second look. Courts have occasionally intervened where procedural rigidity defeated substantial justice:

• Where a defendant was proceeded ex parte and the right to file the written statement was closed, a writ court set aside both orders, holding the trial court erred in not setting aside the ex parte proceedings, subject to payment of costs 2023 0 Supreme(Del) 638.
• Where the actual date of filing of the written statement was disputed, appellate courts have remanded the matter for a fresh determination of whether the statement was filed within the permissible period, since the mandatory bar applies only if the filing was genuinely late

  Classico Brands (India) Pvt. Ltd. vs MIS Stella Industries Limited

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• Conversely, where a defendant's conduct showed persistent lack of diligence — appearing through counsel, seeking time, yet never filing the written statement — courts have held that the proper course in such cases is forfeiture under Order VIII Rule 10 rather than proceeding ex parte, and have declined relief to indolent litigants 2026 0 Supreme(AP) 767 and 2023 0 Supreme(Cal) 587.

Delay in even filing the application to set aside the ex parte decree matters; courts expect vigilance and diligence from parties, and belated recall applications face an uphill task 2025 5 Supreme 270.

Practical Takeaways for Defendants in Commercial Suits

1. File within 120 days, always. The window runs from service of summons and, in commercial suits, is effectively non-extendable 2025 0 Supreme(SC) 1550.
2. If set ex parte, act promptly. Move an application under Order IX Rule 13 with credible sufficient cause, and do so without delay 2000 2 Supreme 104.
3. Do not assume restoration revives pleadings. Getting the ex parte order set aside does not, by itself, entitle you to file a written statement after forfeiture.
4. Check whether your suit was transferred. If the case came from a regular civil court under Section 15(2), press the point that the Commercial Court can fix a fresh timeline under Section 15(4) 2023 0 Supreme(AP) 1374.
5. Verify service. If summons were served without the plaint copy, the limitation clock may not have started when the plaintiff claims it did 2025 0 Supreme(Ori) 957.

Conclusion

A Commercial Court can set aside an ex parte order after the statutory period for filing a written statement has expired, because Order IX Rule 13 remains fully available to commercial defendants 2024 0 Supreme(Bom) 640. What the Court generally cannot do is extend the 120-day timeline or accept a late written statement, since the forfeiture under the amended Order VIII Rules 1 and 10 is mandatory 2020 0 Supreme(Bom) 690. The narrow gateways — a transferred suit under Section 15(2) with a fresh timeline under Section 15(4), or defective service that prevents limitation from commencing — are fact-specific and depend heavily on the record. Because outcomes turn on the precise dates of service, filing, and restoration, parties facing this situation should seek advice from a qualified advocate familiar with commercial court practice, as this discussion is intended only as general legal information.