[Cites 20, Cited by 0]
Bombay High Court
Jawahar Saw Mills Pvt. Ltd. Thr. ... vs M/S. Ganesh Saw Mill Thr. Manager ... on 9 January, 2026
2026:BHC-NAG:258
10. WP 8606 OF 2022.odt
1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR.
CIVIL WRIT PETITION NO.8606 OF 2022
PETITIONERS :- 1. Jawahar Saw Mills Pvt. Ltd.
(Ori. Def. Nos.1 to 4 and 6
on R.A.)A company incorporated under the
provisions of Companies Act,1956,
having its Regd. Office at 47, Mustafa
Bazar, Byculla (East), Mumbai-400010
through its Director Gaurav s/o
Manoharlal Agicha
2. Jawahar Saw Mills Pvt. Ltd.
A company incorporated under the
provisions of Companies Act,1956,
having its branch office at Maa Umiya
Audyogik Sahakari Vasaht, Kapsi (Bk.),
Nagpur, through its Director Gaurav s/
o Manoharlal Agicha
3. Rajesh s/o Manoharlal Agicha, Age
Major, Occ. Business, Director of
Jawahar Saw Mills Pvt. Ltd. R/o.6,
Master Vinayak Road, Bandra (West),
Mumbai - 400050.
4. Gaurav s/o Manoharlal Agicha, Age
Major, Occ. Businesss, Director of
Jawahar Saw Mills Pvt. Ltd. R/o. 6,
Master Vinayak Road, Bandra (West),
Mumbai - 400050.
5. Aditya s/o. Satish Agicha, Age Major,
Occ. Business, Director of Jawahar Saw
Mills Pvt. Ltd. R/o. Flat nos. 1 and 2,
8th Floor, 16th Avenue, 16th Road, Khar
(West), Mumbai - 400052.
10. WP 8606 OF 2022.odt
2
..VERSUS..
RESPONDENTS :- 1. M/s. Ganesh Saw Mill, A registered
(Ori. Plaintiff)
Partnership Firm havig its Regd. Office
at Latur, and Branch Office at Maa
Umiya Audyogik Sahakari Vasaht,
Kapsi (Bk.), Nagpur, through its
Manager Abhijeet S/o Balasaheb
Solapurkar.
(Ori. Defendant no.5)
2. Siddharth s/o. Srichand Agicha, Age
Major, Occ. Business, Director of
Jawahar Saw Mills Pvt. Ltd. R/o.6,
Master Vinayak Road, Bandra (West),
Mumbai - 400050.
(Ori. Defendant no.7)
3. The Corporation Bank, Mandvi Branch,
through its Asst. Manager, 221/223,
Samuel Street, Masjid Bunder, Mandvi,
Mumbai-400003.
(Ori. Defendant no.8)
4. The Corporation Bank, Main Branch,
through its Manager, Kingsway, L.I.C.
Building, Nagpur.
(Ori. Defendant no.9)
5. The Corporation Bank, Wardhaman
Nagar Branch, Through its Manager,
Wardhaman Colony, Bhandara Road,
Nagpur.
------------------------------------------------------------------------------------------------------------------------------------
Mr. Gopal Sawal a/w. Mr. Pranay Sawal, Advocates for petitioners.
Mr. Anand Deshpande, Advocate for respondent No.1.
------------------------------------------------------------------------------------------------------------
CORAM : ROHIT W. JOSHI, J.
RESERVED ON : 24.12.2025
DECIDED ON : 09.01.2026
10. WP 8606 OF 2022.odt
3
JUDGMENT:
1) RULE. Rule made returnable forthwith. Heard
finally with consent of the learned Advocates for the
respective parties. Records and proceedings of the learned
Trial Court were called for perusal vide order dated
22.12.2025.
2) The present petition is filed by the original
defendant Nos. 1 to 4 and 6 in Commercial Suit No.2 of 2019
in order to challenge orders dated 15.09.2022, passed by the
learned District Judge-9 on applications at Exhibit Nos. 59
and 70 in Commercial Suit No.2 of 2019. The respondent
No.1 is the original plaintiff and respondent Nos.2 to 5 are
original Defendant Nos.5,7,8 and 9 respectively. The parties
will hereinafter be referred to as "plaintiff" and "defendants".
3) The plaintiff had filed a suit for recovery of amount
against defendant Nos.1 to 6, being Special Civil Suit
No.8606 of 2018. Defendant Nos.7 to 9 are arrayed as proper
parties to the suit, against whom decree for recovery of
money is not sought. Upon being served with the suit
10. WP 8606 OF 2022.odt
summons, defendant Nos.1 to 6 entered appearance in the
matter on 18.07.2018. The defendant Nos.1 to 6 filed
application dated 18.07.2018 seeking time to file written
statement which was allowed by the learned Civil Court.
4) The defendant Nos.1 and 2 filed application for
rejection of plaint under Order VII Rule 11 of CPC. Similar
application was filed by defendant Nos.3,4 and 6. The said
applications are marked as Exhibit Nos.30 and 33. Both these
applications were filed on 07.08.2018. Perusal of the
applications will demonstrate that the said defendants
contended that the learned Civil Judge, Senior Division did
not have jurisdiction to entertain the suit since the dispute
raised by the plaintiff was a commercial dispute within the
meaning of Section 2(c) of the Commercial Courts Act, 2015.
5) The learned Civil Court passed order dated
28.01.2019, transferring the suit to Commercial Court. The
parties were directed to appear before the Commercial Court
on 11.02.2019. The present petitioners/defendant Nos.1 to 4
and 6 did not file their written statement in the civil suit
while the suit was pending before the learned Civil Court. It
10. WP 8606 OF 2022.odt
will be pertinent to mention that the learned Civil Court had
also not passed any order to proceed without written
statement against the defendants.
6) In view of the order dated 28.01.2019, the matter
was made over to the learned Commercial Court. The case
record was received on 25.02.2019. On 27.02.2019, the
present petitioners/defendant Nos.1 to 4 and 6 filed
application seeking time to file written statement, which was
allowed by the learned Commercial Court by passing one
word order, "Granted". Defendant Nos.1 to 4 and 6 did not
file their written statement. In such circumstances, the
plaintiff/respondent No.1 filed application dated 26.06.2019
vide Exhibit No. 59 for passing order to proceed without
written statement against defendant Nos.1 to 6. Thereafter,
the petitioners/defendant Nos.1 to 4 and 6 filed application
dated 26.10.2021 vide Exhibit No. 70, seeking permission to
file written statement. The learned Commercial Court passed
two separate orders on 15.09.2022 by virtue of which the
application at Exhibit No.59 filed by the plaintiff was allowed
and suit was ordered to proceed against defendant Nos.1 to 6
10. WP 8606 OF 2022.odt
without their written statement and the application filed by
defendant Nos.1 to 4 and 6 for permission to file written
statement at Exhibit No.70 was rejected.
7) The learned Commercial Court has observed that
Order VIII Rule 1 of the Code of Civil Procedure, 1908 (for
short, "the CPC"), is amended in its application to
commercial suits as a consequence of which, right to file
written statement stands forfeited if the same is not filed
within a period of 120 days from the date of service of suit
summons. The learned Commercial Court has held that
period of 120 days from date of service of suit summons had
admittedly lapsed and therefore, right to file written
statement stood forfeited. The defendant Nos.1 to 4 and 6
have filed the present petition, assailing the said orders.
8) Mr. Gopal Sawal, learned Advocate for the
petitioners, contends that the outer limit of 120 days for
filing written statement is not applicable to a suit which is
filed before a Civil Court and is thereafter, transferred to a
Commercial Court. He draws attention to Section 15(4) of
the Commercial Courts Acts, 2015, and contends that, since
10. WP 8606 OF 2022.odt
the suit was transferred from a Civil Court to a Commercial
Court, it was necessary for the learned Commercial Court to
fix a time frame for filing of written statement and since such
a time frame was not fixed by the learned Commercial Court,
right to file written statement was not forfeited. He argues
that the learned Civil Court had not passed order to proceed
without written statement and therefore, stage of filing
written statement was not crossed over before transfer of the
suit to Commercial Court.
9) Per contra, Mr. Anand Deshpande, learned Advocate
for respondent No.1/plaintiff contends that it is not necessary
for a Commercial Court to prescribe new timelines after a suit
transferred to it by a Civil Court. He further contends that
provisions of Order V Rule 1 and Order VIII Rules 1 and 10 as
amended in relation to Commercial Courts will clearly reveal
that time for filing written statement cannot be granted
beyond period of 120 days. The learned Advocate contends
that even if it is assumed that it was necessary for the
Commercial Court to frame a fresh timeline, it is obvious that
the timeline to be prescribed could not be beyond a period of
10. WP 8606 OF 2022.odt
120 days from the date of service of suit summons. He
contends that application at Exhibit No.70 for permission to
file written statement is filed after a period of 120 days from
28.01.2019 i.e. the date of order of transfer of suit from Civil
Court to Commercial Court, 11.02.2019 i.e. date given for
appearance before Commercial Court and also 27.02.2019
i.e. first date of appearance of parties before Commercial
Court after record and proceedings were received from the
Civil Court. The learned Advocate therefore, contends that
the learned Commercial Court has rightly rejected the
application for permission to file written statement filed by
the petitioners/defendant Nos.1 to 4 and 6 and has allowed
the application filed by the plaintiff/respondent No.1 for
proceeding without written statement of the said defendants.
He has placed reliance on judgment of the Hon'ble Supreme
Court in the case of SCG Contracts India Pvt. Ltd. Vs. K. S.
Chamankar Infrastructure Pvt. Ltd., reported in AIR 2019 SC
2691.
10) The contention of the learned Advocate for
petitioners is that, since such a timeline is not prescribed by
10. WP 8606 OF 2022.odt
the learned Commercial Court, application seeking
permission to file written statement could not have been
rejected. The learned Advocate contends that although the
provision uses the word "may", the provision is mandatory.
11) The learned Advocate places reliance on the
following decisions in support of his contention.
i) 2022 SCC Online AP 136 (Amoda Iron Steel Ltd.
Vs. Sneha Anlytics and Scientifics)
ii) 2023 SCC Online MP 5196 (Telecommunications
Consultants India Ltd. Vs. Rajendra Singh Kiledar
Construction Pvt. Ltd.)
iii) 2023 SCC OnLine Cal 2450 (India Power
Corporation Ltd., (IPCL) Vs. Jefferies India Private Limited
and Another.
12) In all these cases, suits were filed before the Civil
Court prior to the establishment of Commercial
Division/Commercial Court and after the establishment of the
Commercial Division/Commercial Court, the suits came to be
transferred to the Commercial Court. In this context, issue
arose in these cases as to whether the outer limit of 120 days
10. WP 8606 OF 2022.odt
prescribed under Order V Rule 1 and Order VIII Rule 1 of
CPC, as they are applicable to Commercial Courts, will be
applicable to such a suit which was filed before Civil Court
and subsequently transferred to Commercial Court after
establishment of Commercial Division/Commercial Court.
Referring to proviso to Section 15(4) of the Commercial
Courts Act, the judgments hold that outer limit of 120 days
will not be attracted to such suits and that in view of proviso
to Section 15(4) of the Commercial Courts Act, the
Commercial Court will have jurisdiction to fix appropriate
timeline for filing of written statement, which can be for a
period exceeding 120 days from the date of service of
summons. Placing reliance on the aforesaid decisions Mr.
Sawal vehemently contends that since appropriate order
fixing time frame for filing of written statement is not passed
by the learned Commercial Court after transfer of the suit
from Civil Court, question of passing order to proceed
without written statement did not arise.
13) It is necessary to examine as to whether Section
15(4) will be applicable to the facts of the present case.
10. WP 8606 OF 2022.odt
Section 15(4) of the Act is applicable to such suits which are
transferred to a Commercial Court under Section 15(2) of the
Act. Section 15(2) of the Act is applicable only to suits which
are pending on the date of establishment of Commercial
Court. Suits which are filed after the establishment of
Commercial Courts are not governed by Section 15(2).
Therefore, Section 15(4) and proviso thereto will not be
applicable to suits which are filed before a Civil Court after
commencement of Commercial Courts Act and the
establishment of Commercial Court and are transferred to
Commercial Court. Reliance, in this regard, can be placed on
the judgment of this Court in the matter of Peoples
Empowerment Group Vs. Sachin Sonwane and ors, reported
in 2025 SCC OnLine Bom 755. In the said case, a suit was
filed before the Civil Court for recovery of money on
30.08.2016. The suit was ordered to be transferred to the
Commercial Court vide order dated 20.10.2016. The
defendants appeared before the Commercial Court on
27.01.2017 in response to summons issued by the
Commercial Court. On 06.07.2017, defendant Nos.1 and 2
10. WP 8606 OF 2022.odt
filed application for condonation of delay in filing written
statement. In the meantime, the learned Commercial Court
remitted the matter back to the learned Civil Court to
reconsider as to whether the subject matter of the suit fell
within jurisdiction of Commercial Court. Vide order dated
17.04.2019, the learned Civil Court held that the subject
matter of the suit fell within the jurisdiction of a Commercial
Court. Thereafter, the defendants filed an application inter
alia praying to stipulate a timeline for filing of written
statement and to accept written statement filed by defendant
Nos.1 and 2 alongwith application dated 06.07.2017 on
record. The said application came to be rejected by the
learned Trial Court. In this context, a dispute arose as to
whether the suit was transferred under Section 15(2) of the
Act and further as to whether Section 15(4) will be
applicable to such a suit. This Court negated the contention
of the defendants that the suit was transferred under Section
15(2) and that Section 15(4) was applicable to the suit.
Relevant observations of this Court in paragraphs 19 and 22
of the judgment are reproduced for ready reference:-
10. WP 8606 OF 2022.odt
"19.This Court finds it difficult to accede to the
submission of Mr. Panchpor that on account of the order
passed by the learned Civil Judge on 17th April, 2019,
there was a transfer of the suit to the Commercial Court
and, therefore, the provision of Section 15(4) are
attracted. On a plain reading of Section 15(2), it
becomes abundantly clear that the said provision applies
to the suits which were pending on the date of the
enforcement of the Commercial Courts Act, 2015.
Consequently, the issue of prescription of new timeline or
further directions under subsection (4) of Section 15
would arise only in the suits which were transferred in
terms of sub-section (2) of Section 15 of the Commercial
Courts Act, 2015.
22. A useful reference can also be made to a Division
Bench judgment of this Court in the case of Reliance
General Insurance Co. Ltd. v. Colonial Life Insurance
Company (Trinidad) Ltd.3 wherein while determining the
question as to "whether the mandatory timeline of 120
days in filing a written statement in a commercial suit is
applicable to suits which were filed prior to the
enactment of the Commercial Courts Act, 2015 and
which came to be transferred as commercial suits to be
heard by the Commercial Division of the High Court in
accordance with the provisions of Section 15 of the
Commercial Courts Act", the Division Bench construed
the scope and import of the provisions contained in
Section 15 of the Act and emphasised that it applies to
pending suits. The following observations in paragraph
13 are material and hence extracted below:
"13. ..... Chapter V of the Commercial Courts Act, dealing
10. WP 8606 OF 2022.odt
with the subject, is entitled "Transfer of pending suits".
Subsection (1) of Section 15 provides for compulsory
transfer of all suits and applications including applications
under Arbitration and Conciliation Act, 1996, relating to
commercial disputes of specified pending in a High Court
where a Commercial Division has been constituted, to such
commercial division. The condition for application of this
provision is "pendency" of a suit or application. The
provisions which follow [Sub-sections (2) to (5)] deal with
such pending suits transferred to the commercial division.
There is no scope for distinguishing between these suits on
the basis of service or want of service of writ o summons.
Sub-sections (2) to (5) of Section 15 apply to all
commercial suits irrespective of the date of service of writ
of summons."
14) Since proviso to Section 15(4) is not applicable, the
contention of the learned Advocate for the petitioner that it
was necessary for the learned Commercial Court to fix a fresh
time frame for filing of written statement is liable to be
rejected. The contention of the learned Advocate for the
petitioner that since the Commercial Court did not fix any
time frame for filing written statement, application at Exhibit
No.70 filed by the petitioners (ori. defendant Nos. 1 to 4 and
6) should have been allowed, cannot be accepted.
10. WP 8606 OF 2022.odt
15) It will now be appropriate to deal with judgment of
the Hon'ble Supreme Court in the matter of Raj Process
Equipments and Systems Pvt. Ltd., and Ors. Vs. Honest
Derivatives Pvt. Ltd., reported in (2022) SCC Online SC 187.
In the said case, suit for recovery of damages was filed before
the Civil Court in the month of December 2017. Suit
summons were served on the defendant on 16.02.2018. An
order to proceed without written statement was passed on
03.07.2018. After the order to proceed without written
statement was passed the Court of District Judge was
designated as a Commercial Court on 11.08.2018 and the
suit was accordingly transferred to a Commercial Court. After
the suit was transferred to Commercial Court the defendant
filed application to set aside "no written statement" order.
The said application came to be rejected vide order dated
11.04.2019. The learned Commercial Court had rejected the
application for recalling "no written statement' order placing
reliance on Order VIII Rule 1 of CPC as amended by the
Commercial Courts Act. The said order was challenged by the
defendant initially before the High Court which confirmed
10. WP 8606 OF 2022.odt
the said order and accordingly and the matter reached the
Hon'ble Supreme Court. The Hon'ble Supreme Court allowed
the appeal on the ground that the period of 120 days for
filing written statement had expired while the suit was
pending before the Civil Court to which Order VIII Rule 1 as
amended by Commercial Courts Act was not applicable.
Placing reliance on judgment in the matter of Salem
Advocate Bar Association Vs. Union of India, reported in
(2005) 6 SCC 344, it is held that Order VIII Rule 1 of the
CPC, in its application to Civil Court is directory and not
mandatory. The Hon'ble Supreme Court has thereafter
referred to its judgment in the matter of SCG Contracts India
Pvt. Ltd., Vs. K. S. Chamankar Infrastructure Private Ltd and
Others reported in (2019) 12 SCC 210 and has held that the
outer limit of 120 days which is applicable to a suit which is
instituted before Commercial Court cannot be applied to a
suit which is filed before a normal Civil Court and then
transferred to Commercial Court. The ratio of the judgment
of the Hon'ble Supreme Court is that if a "no written
statement" order is passed by a Civil Court and thereafter the
10. WP 8606 OF 2022.odt
suit is transferred to Commercial Court, an application for
setting aside "no written statement" order passed by the Civil
Court will have to be dealt with in the light of provisions of
Order V and Order VIII of CPC as they are applicable to a suit
before a Civil Court and that the provisions of Order V Rule 1
and Order VIII Rule 1 of CPC as amended by Commercial
Courts Act will not be applicable. Ultimately, in the facts of
the said case where suit was filed for damages, the Hon'ble
Supreme Court deemed it appropriate to grant permission to
the defendant (appellant before the Supreme Court) to file
written statement.
16) Mr. Anand Deshpande, learned Advocate for the
respondent/plaintiff, contends that ratio of Raj Process
Equipments and Systems Pvt. Ltd., (supra) cannot be applied
to the present case, since in the said case the suit was filed
before the Civil Court prior to the establishment of
Commercial Court and in the present case the suit is filed
before the Civil Court after establishment of Commercial
Court. He contends that the decision of the Hon'ble Supreme
Court is delivered in a case covered by Section 15(2) and
10. WP 8606 OF 2022.odt
therefore in the said case Section 15(4) was applicable. He
further contends that since Section 15(4) is not applicable
the ratio of judgment in the case of Raj Process Equipments
and Systems Pvt. Ltd., (supra) will not be applicable to the
present case.
17) In the facts of the present case, the contents of the
application at Exhibit 17, even if they are taken on their face
value, are grossly insufficient to permit the petitioners to file
written statement even in a non-commercial suit before Civil
Court. Therefore, even if the application filed by the
petitioners is considered in the light of unamended provisions
of Order V Rule 1 and Order VIII Rule 1 of CPC, the
petitioners will not be entitled to leave to file written
statement. Therefore, the argument for distinguishing the
judgment of the Hon'ble Supreme Court in the case of Raj
Process Equipments and Systems Pvt. Ltd., (supra) need not
be dealt with in the facts of the present case.
18) In this regard, it will be appropriate to refer to
judgment of the Hon'ble Supreme Court in the case of R. N.
Jadi & Brothers and ors Vs. Subhashchandra, reported in
10. WP 8606 OF 2022.odt
(2007) 6 SCC 420. Although the Hon'ble Supreme Court has
held that Order VIII Rule 1 of the CPC which prescribes outer
limit of 90 days for filing written statement is directory and
not mandatory, it is unequivocally laid down that in order to
seek permission to file written statement after 90 days,
defendant must make out an exceptional case. It is held that
normally a defendant must file his written statement within a
period of 30 days from the date of service of suit summons. It
is further held that the learned Civil Court can extend the
period for filing written statement up to 90 days in case of
difficulty in filing written statement within a period of 30
days. It is thereafter held that the period of 90 days stipulated
under Order VIII Rule 1 cannot be held to be mandatory and
that in appropriate case where extraordinary circumstances
are made out, filing of written statement can be permitted
even upon period of 90 days. Relevant observations of the
Hon'ble Supreme Court are as under:-
14. It is true that procedure is the handmaid of justice.
The court must always be anxious to do justice and to
prevent victories by way of technical knockouts. But
how far that concept can be stretched in the context of
the amendments brought to the Code and in the light
10. WP 8606 OF 2022.odt
of the mischief that was sought to be averted is a
question that has to be seriously considered. I am
conscious that I was a party to the decision in Kallash
v. Nanhku which held that the provision was directory
and not mandatory. But there could be situations
where even a procedural provision could be construed
as mandatory, no doubt retaining a power in the court,
in an appropriate case, to exercise a jurisdiction to take
out the rigour of that provision or to mitigate genuine
hardship. It was in that context that in Kailash v.
Nanhku it was stated that the extension of time
beyond 90 days was not automatic and that the court,
for reasons to be recorded, had to be satisfied that
there was sufficient justification for departing from the
time-limit fixed by the Code and the power inhering in
the court in terms of Section 148 of the Code. Kailash
is no authority for receiving written statements, after
the expiry of the period permitted by law, in a routine
manner.
15. A dispensation that makes Order 8 Rule 1
directory, leaving it to the courts to extend the time
indiscriminately would tend to defeat the object sought
to be achieved by the amendments to the Code. It is,
therefore, necessary to emphasise that the grant of
extension of time beyond 30 days is not automatic ,
that it should be exercised with caution and for
adequate reasons and that an extension of time beyond
90 days of the service of summons must be granted
only based on a clear satisfaction of the justification for
granting such extension, the court being conscious of
the fact that even the power of the court for extension
10. WP 8606 OF 2022.odt
inhering in Section 148 of the Code, has also been
restricted by the legislature. It would be proper to
encourage the belief in litigants that the imperative of
Order 8 Rule 1 must be adhered to and that only in
rare and exceptional cases, will the breach thereof will
be condoned. Such an approach by courts alone can
carry forward the legislative intent of avoiding delays
or at least in curtailing the delays in the disposal of
suits filed in courts. The lament of Lord Denning in
Allen v. Sir Alfred McAlpine & Sons that law's delays
have been intolerable and last so long as to turn justice
sour, is true of our legal system as well. Should that
state of affairs continue for all times?
19) In the case of Salem Advocate Bar Association Vs.
Union of India, reported in (2005) 6 SCC 344, while holding
that the outer limit specified under Order VIII Rule 1 of CPC
is directory in nature, the Hon'ble Supreme Court has also
cautioned that time cannot be extended as a matter of course
and time beyond 90 days can be extended only in
exceptionally hard cases. Relevant observations in paragraph
21 of the judgment are extracted herein-below:-
21. ".....Clearly, therefore, the provision of Order 8 Rule 1
providing for the upper limit of 90 days to file written
statement is directory. Having said so, we wish to make it
clear that the order extending time to file written
statement cannot be made in routine. The time can be
extended only in exceptionally hard cases. While
10. WP 8606 OF 2022.odt
extending time, it has to be borne in mind that the
legislature has fixed the upper time-limit of 90 days. The
discretion of the court to extend the time shall not be so
frequently and routinely exercised so as to nullify the
period fixed by Order 8 Rule 1.
20) In the case of Atcom Technologies Ltd. Vs. Y. A.
Chunawala and Company and ors., reported in (2018) 6 SCC
639 delay of around 5 years in filing written statement was
condoned by the order impugned. The High Court found that
there was a delay of around 7 years in service of suit
summons and, therefore, found it appropriate to condone the
delay in filing written statement by imposing cost of
Rs.5,00,000/-. The matter went before the Hon'ble Supreme
Court. Placing reliance on judgment in the case of Salem
Advocate Bar Association (supra) the Hon'ble Supreme Court
quashed the said order permitting the filing of written
statement.
21) In the case of Desh Raj Vs. Balkishan, reported in
(2020) 2 SCC 708, the Hon'ble Supreme Court held that
although Order VII Rule 1 is directory, it cannot give a free
hand to the defendant to file written statement at his sweet
10. WP 8606 OF 2022.odt
will. It is held that, in order to seek leave to file written
statement beyond 90 days, case of proactive diligence
coupled with extreme hardship should be made out. It will be
pertinent to mention that although the judgment considers
precedents pertaining to general civil suits and commercial
civil suits, perusal of paragraph 14 of the judgment will
disclose that the suit was considered to be of non-commercial
nature and right to file written statement was dealt with in
the light of provisions of CPC as they are applicable to non-
commercial civil suits. It will be pertinent to mention here
that delay in filing written statement in the said case was of
95 days over and above the outer limit of 90 days. Relevant
observations in paragraph 15 are quoted herein-below for
ready reference :-
"15. However, it would be gainsaid that although the
unamended Order 8 Rule 1 CPC is directory, it cannot
be interpreted to bestow a free hand to on any litigant
or lawyer to file written statement at their own sweet
will and/or to prolong the lis. The legislative objective
behind prescription of timelines under CPC must be
given due weightage so that the disputes are resolved
in a time-bound manner. Inherent discretion of courts,
like the ability to condone delays under Order 8 Rule
10. WP 8606 OF 2022.odt
1 is a fairly defined concept and its contours have
been shaped through judicial decisions over the ages.
Illustratively, extreme hardship or delays occurring
due to factors beyond control of parties despite
proactive diligence, may be just and equitable
instances for condonation of delay."
22) Perusal of the application at Exhibit No.70 will
demonstrate that the defendants have stated that father of
defendant Nos.3 and 4 is an old person who was suffering
from diabetes and was diagnosed with severe heart ailments
in the year 2017 and that he needs constant care and
attention. It is averred that in December 2019 when he was
at Dubai on a business trip he fell ill and was admitted in a
hospital at Dubai. It is stated that defendant Nos.3 and 4 had
rushed to Dubai and stayed there with their father in view of
his medical condition. It is stated that the defendants were
also facing serious financial hardship due to decline in
business. Lastly, it is stated that due to nationwide lockdown
imposed w.e.f. 15.03.2020 on account of Covid-19 pandemic,
the defendants were unable to file their written statement on
record.
23) As regards Covid-19 restrictions, the Hon'ble
10. WP 8606 OF 2022.odt
Supreme Court has ordered exclusion of period from
15.03.2020 to 28.02.2022 for the purpose of computation of
limitation in all judicial proceedings. The application seeking
permission to file the written statement is filed on
26.10.2021, during this period and therefore delay up to
14.03.2020 only needs to be considered.
24) Perusal of the medical papers filed on record will
indicate that father of defendant Nos.3 and 4 was admitted at
Asian Heart Institute on 13.02.2017 on account of heart
ailment and was granted discharge on 24.02.2017. He was
advised bed rest for a period of 3 months. This period is prior
to the institution of suit.
25) It appears from the contents of paragraph 5 of the
application that the father had been to Dubai on a business
trip in December 2019. Perusal of medical report dated
29.12.2019 issued by Harley International Medical Clinic
L.L.C will indicate that he complained of discomfort in chest
and had visited the hospital on his own. His ECG was found
to be satisfactory by the Doctor and the vital parameters were
also found to be stable, however the doctor advised him to
10. WP 8606 OF 2022.odt
take the rest for few weeks and to continue with medications
prescribed by his cardiologist. The petitioners have filed
medical certificate dated 05.01.2020 issued by a General
Practitioner at Saudi German Hospitals Group at Dubai, who
had conducted his neuro examination since he was
complaining of dizziness. A medical prescription dated
08.01.2020 is also filed on record. The period during which
father of defendant Nos.3 and 4 was unwell at Dubai is from
29.12.2019 to January 2020.
26) His medical condition prior to December 2019
appears to be alright. He had traveled to Dubai on a business
trip in December 2019. The outer limit of 90 days for filing
written statement, if the period is computed from 18.07.2018
i.e. date of appearance before Civil Court had expired on
16.10.2018 itself. If this period is computed from the date of
appearance before the Commercial Court, the said period had
expired on 28.05.2019 itself. It will be pertinent to mention
that the plaintiff/respondent No.1 had also filed application
dated 26.06.2019, inter alia praying for passing "no written
statement" order against defendants. Despite this, the
10. WP 8606 OF 2022.odt
application is filed on 26.10.2021.
27) Perusal of the application will demonstrate that
there is no plausible explanation for failure to file written
statement initially before the Civil Court and thereafter even
before the Commercial Court. The application for filing
written statement is after the period of 39 months from the
date of appearance before the Civil Court and 32 months
from the date of appearance before the Commercial Court.
Even if period is computed only till March 2020, before the
imposition of Covid-19 restrictions, it is clear that the delay is
of around 17 months from the date on which period of 90
days for filing written statement had expired. If the period is
computed from outer limit of 120 days from date of
appearance before learned Commercial Court and
commencement of Covid-19 restrictions the delay will be of
around 8 months.
28) The petitioners have also stated that written
statement could not be filed due to financial difficulties.
However, there is no further elaboration regarding this
ground. The petitioner Nos. 3 to 5 are persons of business
10. WP 8606 OF 2022.odt
background. The father of petitioner Nos. 3 and 4 had been
to Dubai on a business trip while the suit was pending, as is
apparent from contents of the application. This is an indicator
of financial condition of family of petitioner Nos.3 and 4. It is
difficult to digest that written statement could not be filed
due to financial constraints.
29) Except for a short period from 29.12.2019 till first
or second week of January 2020, there was no difficulty in
filing written statement, even if the contents of the
application at Exhibit No.70 are taken on its face value.
30) The conduct of petitioners demonstrates laxity on
their part in contesting the suit. The petitioners have not
taken legal proceedings initiated against them seriously. The
attitude of the petitioners is recalcitrant. The suit is filed in
the year 2018 and application for permission to file written
statement was filed on 26.10.2021 that too when the
respondent No.1/plaintiff had filed an application to proceed
against the petitioners/defendants without written statement
on 26.06.2019. Perusal of the application demonstrates that
no good reason is cited for seeking leave to file written
10. WP 8606 OF 2022.odt
statement after an inordinately long period mentioned above.
31) In the considered opinion of this Court, the
explanation offered by the petitioners (defendant Nos.1 to 4
and 6) is not sufficient to condone the delay and to accept
the written statement on record, even according to provisions
of CPC as are applicable to a civil suit filed before the Civil
Court.
32) In view of the reasons recorded above, no case for
interference is made out. The Writ Petition is, therefore, liable
to be dismissed. Rule is accordingly discharged by dismissing
the petition.
(ROHIT W. JOSHI, J.)
Tanmay...
