Can a written statement filed after 120 days from the date of service of summons in a commercial suit can be taken on record?
Order VIII Rule 1 CPC (as applicable to Commercial Suits) reads as follows:
Written Statement. – The defendant shall, within thirty days from the date of service of summons on him, present a written statement of his defence: Provided 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.
Order V Rule 10 (as applicable to Commercial Suits) reads as follows:
“Procedure when party fails to present written statement called for by Court.– Where any party from whom a written statement is required under rule 1 or rule 9 fails to present the same within the time permitted or fixed by the Court, as the case may be, the Court shall pronounce judgment against him, or make such order in relation to the suit as it thinks fit and on the pronouncement of such judgment a decree shall be drawn up.
Provided that no Court shall make an order to extend the time provided under Rule 1 of this Order for filing of the written statement.”
Taking note of these two provisions, the Supreme Court in SCG Contracts (India) Private Limited v. K.S. Chamankar Infrastructure Private Limited and Others, (2019) 12 SCC AIR 2019 SC 2691.observed: In view of the fact that the consequence of forfeiting a right to file the written statement; non-extension of any further time; and the fact that the Court shall not allow the written statement to be taken on record all points to the fact that the earlier law on Order VIII Rule 1 on the filing of written statement under Order VIII Rule 1 has now been set at naught.
By “earlier law”, the Court refers to the the law laid down in judgments like ‘Kailash vs. Nankhu (2005) 4 SCC 480 and ‘Salem Advocate Bar Association, Tamil Nadu Vs. Union of India’, (2005) 6 SCC 344 that the time limit for filing of the written statement under Order VIII Rule 1 of CPC. This judgments are still governing the filing of written statements in Civil Suits [See Shoraj Singh vs Charan Singh ]
In Desh Raj vs Balkishan (D) (2020) 2 SCC 708, it was observed that the ratio in SCG Contracts concerning the mandatory nature of the timeline prescribed for filing of written statement and the lack of discretion with Courts to condone any delay is applicable only to commercial disputes.