The Kerala High Court expounded that the Commercial Court shall not allow a written statement to be taken on record if 120 days have passed since the date of service of summons.
It was held that as per Section 16 of the Commercial Courts Act, 2015, Defendant has to file the written statement within 120 days from the date of service of summons. If 120 days have lapsed, then the Defendant's right to file the written statement shall stand forfeited and the Court shall not accept the written statement on record.
Brief Facts:
The Respondent has filed a suit against the Petitioners for the recovery of money. The Petitioners appeared and prayed for time to file their written statement. Due to the misplacement of documents, the Petitioner could not file the Written Statement within the given time frame. The case was later listed for trial. The Petitioners made earnest efforts and traced out the documents. They immediately filed their written statement. The Commercial Court, by the impugned order, rejected the application. It was prayed that the impugned order is perverse, irrational, and improper. Hence, the original petition was filed.
Observation of the Court:
The Court observed that the pleadings and materials on record revealed the date when the Plaint was instituted and further noticed the delay in filing of the Written Statement by one year.
It was taken into consideration that Section 16 of the Commercial Courts Act, 2015, the Code of Civil Procedure stands amended in its application to commercial disputes as specified in the Schedule to the Act. Consequently, Orders V and VIII of the Code of Civil Procedure stand amended by the Schedule.
The Bench pointed out that the amended provision of the Code of Civil Procedure,1908 as per Section 16 of the Commercial Courts Act mandates that the Defendant(s) has to file the written statement within 120 days from the date of service of summons, failing which the Defendant(s) right to file the written statement will stand forfeited and the Court shall not accept the written statement on record.
To substantiate the same, the Court relied on the case SCG Contracts India Pvt. Ltd v. K.S Chamankar Infrastructure Pvt. Ltd & Ors [(2019) 12 SCC 210], wherein the Hon’ble Supreme Court has held that the amended provisions of Orders V and VIII of the Code is mandatory.
The decision of the Court:
In light of the amended provisions of the Code and its interpretation given by the Hon’ble Supreme Court, and the undisputed fact that the written statement was filed beyond the stipulated period, the High Court upheld that the Commercial Court was justified in rejecting the application to accept the written statement.
Consequently, the Writ Petition was dismissed.
Case Title: Anil MP V Capital Finserv Ltd
Coram: Hon’ble Justice C.S Dias
Case No.: OP(C) NO. 591 OF 2023
Advocates For Petitioner: Advs. KV Sanosh, B. Murlidharan, J Augustine, V. Suresh
Advocate For Respondent: Adv. Benny Joseph
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