[Cites 11, Cited by 0]
Punjab-Haryana High Court
Mita India Private Limited vs M/S Yaskawa India Pvt. Ltd on 18 March, 2026
Author: Vikas Bahl
Bench: Vikas Bahl
CR-6578-2023(O&M) 1
IN THE HIGH COURT OF PUNJAB & HARYANA AT
CHANDIGARH
***
1. CR-6578-2023(O&M)
Mita India Private Limited
... Petitioner
Versus
M/s Yaskawa India Pvt. Ltd.
... Respondent
2. CR-6430-2025(O&M)
M/s Yaskawa India Pvt. Ltd.
... Petitioner
Versus
Mita India Private Limited
... Respondent
Date of decision : 18.03.2026
CORAM: HON'BLE MR. JUSTICE VIKAS BAHL
Present: Mr.Amit Jain, Senior Advocate with
Mr. Aryaman Thakur, Advocate,
Mr.Kushagra Mahajan, Advocate and
Mr.Lakshay Sawhney, Advocate
for the petitioner in CR-6578-2023.
Mr.Manish Kohli, Advocate and
Mr.Tavinder Sidhu, Advocate (through V.C.), and
Mr.Birinder Pal, Advocate
for the petitioner in CR-6430-2025 and
for the respondent in CR-6578-2023.
Mr.Munish Gupta, Advocate
for the respondent in CR-6430-2025.
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CR-6578-2023(O&M) 2
VIKAS BAHL, J.(ORAL)
INDEX
Paragraphs Pages
1. Challenge in the present revision 1 2&3
petitions
2. Brief background of the case 2 to 6 3 to 7
3. Arguments on behalf of the petitioner- 7 7&8
plaintiff in CR-6578-2023
4. Arguments on behalf of the respondent- 8 8&9
defendant in CR-6578-2023
5. Analysis and Findings in CR-6578-2023 9 to 18 9 to 16
6. Challenge in CR-6430-2025 19 16 & 17
defendant in CR-6430-2025
8. Arguments on behalf of the respondent- 21 17 & 18
plaintiff in CR-6430-2025
9. Analysis and Findings in CR-6430-2025 22 to 26 18 to 22
CHALLENGE IN THE PRESENT REVISION PETITIONS
1. The present order would dispose of two civil revision petitions
arising from two separate orders passed in the same suit. In the first civil
revision, i.e., CR-6578-2023 which has been filed by the plaintiff Mita India
Private Limited, the challenge is to the order dated 24.08.2023 passed by
the Additional District Judge-cum-Presiding Judge, Exclusive Commercial
Court at Gurugram, vide which the application filed under Section 8 of the
Arbitration and Conciliation Act, 1996 read with Sections 9 and 151 CPC
by the respondent-defendant has been allowed and the parties have been
referred to Arbitration and the plaint has been rejected. The second civil
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revision i.e., CR-6430-2025 has been filed by the defendant M/s Yaskawa
Private Limited in which challenge is to the order dated 18.08.2025 vide
which the Additional District Judge-cum-Presiding Judge, Exclusive
Commercial Court at Gurugram had dismissed the application filed by the
petitioner -defendant for placing on record the written statement moved by
the defendant as the same has been filed beyond the period of 120 days from
the date of service, which is the outer period for filing written statement in a
commercial suit.
BRIEF BACKGROUND OF THE CASE
2. Mita India Private Limited had filed a suit for recovery of
Rs.1,28,11,298/- with pendente lite and future interest at 15% p.a. in the
Court of Additional District Judge-cum-Presiding Officer, Exclusive
Commercial Court, Gurugram. In the said suit, M/s Yaskawa India Private
Limited was the defendant. In the plaint, reference was made to quotation
dated 19.09.2018 which was stated to have been sent by the defendant to the
plaintiff for the purpose of purchase of YASKAWA Robot Model AR1440
with YRC 1000 Controller and latest digitally controlled Welding Power
Source Model RP500-Motoweld. It was further the case of the plaintiff that
the plaintiff had issued a purchase order no.18302 dated 15.10.2018 along
with its terms and conditions upon the defendant for supply of said robot
Model and that the defendant, after having received the payment, had
installed and commissioned the said robot on 19.03.2019, and that the
production had started at the unit of the plaintiff in August 2019. In the said
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suit, in the subsequent paragraphs, the details of the dispute as well as the
grounds for claiming the amount were mentioned which are not relevant for
the purpose of adjudication of the present two revision petitions.
3. It is not in dispute that the defendant was served on 26.11.2022
(the said date has been wrongly mentioned as 26.12.2022 in the impugned
order dated 18.08.2025 and it has been jointly stated before this Court that
said date is 26.11.2022 and even in the list of dates and events, at page 5, of
CR-6430-2025 filed by the defendant as well as in the written arguments
placed on record at page 133 Annexure A/10, the said date of service on the
defendant has been rightly mentioned as 26.11.2022) and had an outer
period of 120 days for filing the written statement and thus, could have filed
the written statement on or before 26.03.2023 since the case was before the
Commercial Court and admittedly, the same was not done and an
application under Section 8 of the Arbitration and Conciliation Act, 1996
read with Section 9 and 151 CPC was prepared on 22.12.2022 and was filed
on 09.01.2023. During the pendency of the said application under Section 8
of the Arbitration and Conciliation Act, 1996, the last date for filing the
written statement elapsed and the written statement was not filed even
though there was no stay of proceedings. On 24.08.2023, the application
filed by the defendant under Section 8 of the Arbitration and Conciliation
Act, 1996 was allowed and the parties were directed to arbitrate in terms of
the arbitration agreement and the plaint was rejected. The said order was
challenged by the plaintiff by filing CR-6578-2023.
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4. On 16.11.2023, the Co-ordinate Bench of this Court while
issuing notice of motion was also pleased to stay the operation of the order
dated 24.08.2023. The order dated 16.11.2023 passed by the Co-ordinate
Bench is reproduced hereinbelow:-
"Present: Mr. Amit Jain, Senior Advocate with
Mr. Anupam Mathur, Advocate and
Mr. Tejas Parashar, Advocate
for the petitioner.
****
This revision petition has been filed by the
petitioner/plaintiff impugning the legality of order dated 24.08.2023
(Annexure P/6), rendered by Exclusive Commercial Court, Gurugram,
vide which application under Section 8 of the Arbitration and Conciliation
Act, 1996, moved by respondent/ defendant has been allowed and matter
has been ordered to be referred to arbitration in terms of arbitration
agreement between the parties and resultantly, the plaint filed by the
plaintiff has been rejected.
Learned counsel for the petitioner/plaintiff inter alia
contends that Proposal dated 19.09.2018 (Annexure P/2) for purchase of
Yaskawa ARC Welding Robot was given by respondent/defendant
(Supplier) to petitioner/plaintiff (Buyer) and there was a condition therein
that in case any dispute or difference arises under or in connection with
the agreement, matter was to be referred to the arbitration in accordance
with the provisions of the Arbitration and Conciliation Act, 1996. Validity
of said offer was for seven days. However, vide Purchase Order dated
15.10.2018 (Annexure P/3), petitioner/plaintiff had asked for purchase
of above said article and specifically enshrined therein the terms and
conditions as under:
"1. Unless the purchase order expressly provides otherwise, it is
limited to these terms and conditions. Buyer hereby objects to any
additional or different terms proposed by supplier in any
quotation, acknowledge or other document. Any such proposed
term shall be void and the terms herein shall constitute the
complete and exclusive statement of the terms and conditions of
the Purchase Order/contract between the parties.
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2. This Purchase order/Contract, whether or not issued with
reference to a quotation or proposal of supplier, shall constitute
an offer. Acceptance by supplier is expressly limited to the terms
and conditions hereof and may be evidenced by returning the
acknowledgment form hereof or by commencement of
performance. No change or modification in this Purchase
order/Contract shall be valid unless confirmed in writing by the
Buyer."
By virtue of condition No.1 of Purchase Order dated
15.10.2018 any such proposed term shall be void and the terms herein
shall constitute the complete and exclusive statement of the terms and
conditions of the Purchase Order/contract between the parties and, thus,
vide clause 18 of the Purchase Order (Annexure P/3) in case of
disagreement or dispute of any kind, either on the order or more generally
on the business relationship between the Buyer and the Supplier the Trade
Court at Ghaziabad only will be the competent Court to settle such
dispute. He further submits that in this scenario, though in the Purchase
Order dated 15.10.2018 in the column meant for 'GST', a specific note was
appended that the quotation No.AT/R/AW/18-19/037/REV.1.1 dated
19.09.2018 (Annexure P/2) and Annexure - A are integral part of this
Purchase Order but by virtue of clause 18 of Purchase Order, Forum to
settle the dispute between Buyer and the Supplier was restricted to Trade
Court, Ghaziabad and there was no stipulation to refer the matter to
arbitration. He further submits that since head office of
respondent/defendant falls within territorial jurisdiction of Courts at
Gurugram, and the instant matter being 'commercial dispute', thus, suit
for recovery was rightly instituted at Exclusive Commercial Court at
Gurugram. He further submits that learned Trial Court has wrongly
allowed the above said application moved at the instance of
respondent/defendant.
Notice of motion for 12.01.2024.
Meanwhile, operation of impugned order dated 24.08.2023
(Annexure P/6) is stayed.
16.11.2023"
5. The said interim stay has been continuing and it has been
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jointly submitted before this Court that the plaintiff witnesses have been
examined and cross-examined by the defendant and the case is now fixed
for arguments on 30.03.2026.
6. In the meantime, an application for placing on record the
written statement was filed by the defendant. The Commercial Court vide
order dated 18.08.2025 had dismissed the said application on the ground
that the written statement is to be filed in a commercial dispute within a
period of 30 days of service and thereafter the Court has the power to allow
the defendant to file written statement on subsequent date for the reasons to
be recorded in writing and on payment of costs which the Court deems fit
but the said period cannot be later than 120 days from the date of service of
summons. The said order is the subject matter of challenge by the defendant
in CR-6430-2025.
ARGUMENTS ON BEHALF OF THE PETITIONER-PLAINTIFF IN
CR-6578-2023
7. Learned senior counsel for the petitioner-plaintiff has
submitted that the Commercial Court has not taken into consideration the
terms of the subsequent purchase order dated 15.10.2018 while allowing the
application under Section 8 of the Arbitration and Conciliation Act, 1996. It
is submitted that a perusal of the said purchase order would clearly show
that the terms, which have been expressly stated in the said purchase order,
would prevail over any term in the quotation. It is submitted that as per
clause 18 of the purchase order, it is specifically stated that in case of
disagreement or dispute of any kind, either on the order or even generally
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on the business relationship between the buyer and the supplier i.e., the
plaintiff and the defendant, the trade Court in Ghaziabad only will be the
competent Court to settle such a dispute. It is submitted that in view of
clause 18 of the purchase order, the arbitration clause in the earlier proposal
was superseded / replaced by the said clause 18 and it is the said clause 18
which would govern the rights of the parties. It is submitted that reading of
the two admitted documents i.e., the proposal given by the defendant and
the purchase order made by the plaintiff would clearly show that the
arbitration clause was not reiterated rather the same was superseded by
clause 18 of the purchase order. It is submitted that even on the aspect of
warranty, the clause, as mentioned in the proposal, was superseded by the
subsequent clause in the purchase order. It is thus argued that even in case
the proposal is to be taken into consideration, then, also the clauses which
have been specifically superseded or are contrary to the clauses mentioned
in the purchase order would not govern the rights of the parties and it is the
said clauses in the purchase order which would govern the relationship
between the parties. It is further argued that a perusal of the proposal would
show that the offer made by the defendant was valid only for 7 days and the
plaintiff had put forth the purchase order on 15.10.2018 i.e., beyond the
period of 7 days, and thus, it is the purchase order which in true terms was
the offer and the fact that the said offer was accepted by the defendant is not
in dispute.
ARGUMENTS ON BEHALF OF THE RESPONDENT-DEFENDANT
IN CR-6578-2023
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8. Learned counsel for the respondent, on the other hand, has
opposed the present revision petition and has submitted that in the purchase
order, it has specifically been mentioned that the quotation dated
19.09.2018 is to be read as an integral part of the purchase order dated
15.10.2018 and thus, the terms of the quotation are to be read into the
purchase order. It is submitted that clause 1, 2 and 18 of the purchase order
are routine clauses and they would not have the effect of superseding or
replacing the clause with respect to the arbitration which has been
specifically provided in the proposal. It is further submitted that under
Clause 9 of the proposal, there is clause for jurisdiction in which it has been
stated that disputes would be subject to Gurgaon, Haryana jurisdiction and
since the present suit had been filed in Gurugram, the same clearly shows
that, even as per the understanding of the plaintiff, it is the said terms of the
proposal which would govern the rights of the parties. It is submitted that in
the said circumstances, the impugned order dated 24.08.2023 is in
accordance with law and deserves to be upheld and the plaint filed by the
plaintiff deserves to be rejected.
ANALYSIS AND FINDINGS IN CR-6578-2023
9. This Court has heard learned counsel for the parties and has
perused the paper book and is of the opinion that the impugned order dated
24.08.2023 is against law and deserves to be set aside and the present
revision petition deserves to be allowed for the reasons stated hereinafter.
10. Both the petitioner-plaintiff and the respondent-defendant have
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relied upon the proposal dated 19.09.2018 as well as the purchase order
dated 15.10.2018 which have been placed on record as Annexure P-2 and P-
3 along with CR-6578-2023. The relevant portions of the proposal which
have been highlighted are reproduced hereinbelow:-
"4) VALIDITY OF OFFER: 07 day
xxx xxx xxx
6) WARRANTY: YIND will provide warranty for the system/items
supplied will be free from manufacturing defects for a period of 12
months from the date of invoice. The warranty does not cover improper
operation and maintenance or accidents cause due to negligence on the
part of operator.
xxx xxx xxx
9) JURISDICTION: Subject to Gurgaon, Haryana jurisdiction.
xxx xxx xxx
11) ARBITRATION: Any dispute or difference arising under or in
connection with this agreement or any breach thereof, which cannot be
settled by friendly negotiation and agreement among the parties, shall be
finally settled by arbitration, with three arbitrators to be appointed, one
arbitrator to be appointed by YIND, one arbitrator to be appointed by the
other party and the umpire to be appointed by the two arbitrators, the
arbitration being conducted in accordance with the provisions of the
Arbitration and Conciliation Act, 1996. The venue of the arbitration
proceedings shall be in India. The costs of arbitration will be equally
shared by the parties.
Assuring you of your best attention!"
Clause 4 and clause 6 have been relied upon on behalf of the
plaintiff and clause 9 and clause 11 have been relied upon on behalf of the
defendant.
11. The purchase order dated 15.10.2018, which has also been
relied upon by both the parties to make out their case, has been annexed as
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Annexure P-3. The relevant clauses of the said purchase order are
reproduced hereinbelow:-
"NOTE: YOUR QUOTATION NO AT/R/AW/18-19/037/REV.1.1 DATED
19/09/2018 & OUR ANNEXURE 'A' ARE INTEGRAL PART OF THIS
PURCHASE ORDER NO 18302 DATED 15.10.2018
xxx xxx xxx
TERMS & CONDITIONS OF OUR PURCHASE ORDER
1. Unless the purchase order expressly provides otherwise, it is limited to
these terms and conditions. Byer hereby objects to any additional or
different terms proposed by supplier in any quotation acknowledge or
other document. Any such proposed term shall be void and the terms
herein shall constitute the complete and exclusive statement of the terms
and conditions of the Purchase Order/contract between the parties.
2. This Purchase order/Contract, whether or not issued with reference to
a quotation or proposal of supplier, shall constitute on offer. Acceptance
by supplier is expressly limited to the terms and conditions hereof and
maybe evidenced by returning the acknowledgment form hereof or by
commencement of performance. No charge or modification in this
Purchase order/Contract shall be valid unless confirmed in writing by
the Buyer.
xxx xxx xxx
18) In case of disagreement or dispute of any kind, either on the order or
more generally on the business relationship between the Buyer and the
Supplier the trade court in Ghaziabad only will be competent court to
settle such dispute.
19. Supply expressly warrants that all materials covered by this order will
conform to the standards, specifications, drawings, samples, models, 3-D
geometry or other description furnished or expressly adopted by Buyer,
and will be of good material and workmanship, and free from defects,
including defect in design (if Supplier Design) and, if custom designed by
supplier for the application Buyer specified be comparable in quality to
similar customs good sold for similar application. Any defect, attributed
too defects in material, Manufacturing and Workmanship appearing
within 24 months from the date of receipt. Supplier shall reimburse or
replace the parts free of cost or reimburse the cost of repairs at actual.
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xxx xxx xxx
ANNEXURE "A" TO
PURCHASE ORDER NO.18302 DATED 15/10/2018.
xxx xxx xxx
12. WARRANTY:- 12 months from the date of commissioning."
12. The note with respect to quotation, which is stated to be an
integral part of the purchase order, has been relied upon by the defendant,
whereas clauses 1, 2, 18 and 19 have been relied upon by the plaintiff.
13. The moot question which arises for consideration in the present
case is as to whether the arbitration clause in the proposal is superseded /
replaced by clause 18 of the purchase order. Clause 1 and 2 of the purchase
order specifically provides that the buyer (plaintiff) specifically objects to
any additional or different terms proposed by supplier in any quotation or
other document and that any such proposed term shall be void and the terms
contained in the purchase order shall constitute the complete and exclusive
statement of the terms and conditions of the purchase order / contract
between the parties. It was further stated in clause 2 that the purchase
order/ contract whether or not issued with reference to a quotation or
proposal of supplier, shall constitute an offer and that acceptance by
supplier i.e., defendant is limited to the terms and conditions thereof and
could be evidenced by returning the acknowledgement form. It was again
reiterated that no change or modification in this purchase order / contract
shall be valid unless confirmed in writing by the buyer/plaintiff.
14. It would be relevant to mention that the validity of the offer
made as per the proposal dated 19.09.2018 was 7 days and the present
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purchase order was made by the plaintiff after the period of 7 days has
lapsed i.e., on 15.10.2018. It is not disputed before this Court that
subsequent to the said purchase order dated 15.10.2018, the defendant had
acted upon the same and had supplied the robot and thus, the purchase order
was duly accepted. Although by virtue of the note, the terms of the
quotation/ proposal became the part of the purchase order but reading of the
two documents together would clearly show that in case any term in the
subsequent purchase order is expressly provided for and the same is in
contradiction or is different from the term provided in the proposal /
quotation, then, it is the term in the purchase order which should govern the
rights of the parties and not the term mentioned in the proposal. Under
clause 18, it is specifically provided that in case of disagreement or dispute
of any kind, either on the order placed or even generally on the business
relationship between the buyer and the supplier, it would be the trade Court
only which would have the jurisdiction. The said clause cannot coexist with
the arbitration clause, as the arbitration clause also provides that any dispute
or difference arising under or in connection with the agreement or any
breach thereof is to be settled by arbitration. Thus, it is the clause 18 of the
purchase order which would prevail and not clause 11 of the proposal.
15. Learned counsel for the defendant has highlighted clause 9 of
the proposal which is reproduced hereinabove to show that earlier the case
was subject to Gurgaon, Haryana jurisdiction and has argued that it is the
said clause which has been superseded by clause 18 of the purchase order.
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This Court is not impressed with the said argument. Rather a joint reading
of clause 9 of the proposal and clause 18 of the purchase order would show
that clause 18 of the purchase order has been purposely drafted in a manner
to encompass all disputes and thus, once clause 18 applies, the clause
regarding arbitration would not govern the rights of the parties. It cannot be
said that clause 1, 2 and 18 of the purchase order are only general clauses,
rather these are specific clauses specifically governing the rights of the
parties.
16. Additionally, a comparison between the warranty clause in the
proposal and in the purchase order would show that the warranty period was
12 months from the date of invoice in the proposal, whereas under clause 19
in the purchase order, in case of any defect attributal to the defects in
material, manufacturing and workmanship appearing within 24 months from
the date of receipt, the defendant was required to replace or reimburse the
parts free of cost. Thus, there was difference in the said clauses. Learned
counsel for the defendant has highlighted clause 12 of Annexure "A" of the
purchase order to show that the warranty is for 12 months only but even in
the said clause, it would be apparent that the said period of 12 months is
from the date of commissioning and not from the date of invoice as
mentioned in clause 6 of the proposal. Thus, it is apparent that in certain
clauses there was modification /change in the purchase order and it is the
said modification / change which should govern the rights of the parties.
The Commercial Court fell in grave error by not properly construing the
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abovesaid clauses and thus, caused grave injustice to the petitioner by
rejecting the plaint filed by him. The Co-ordinate Bench of this Court while
staying the operation of the impugned order in effect permitted the
proceedings in the suit to continue and the proceedings in the suit have
continued and the case is now fixed for arguments.
17. Before parting with the present order with respect to CR-6578-
2023, it would be relevant to note that although under Section 8 of the
Commercial Courts Act, 2015, there is a bar from filing revision petition to
challenge an interlocutory order but the Co-ordinate Bench of this Court in
the case of Ostuka Chemicals (India) Private Limited vs. Trans Engineers
India Pvt. Ltd. reported as 2026 NCPHHC 5791 while dealing with the
aspect of maintainability had observed that the bar under Section 8 of the
Commercial Courts Act on entertainment of civil revision application or
petition would not be applicable in case the civil revision is filed under
Article 227 of the Constitution of India against any interlocutory order of a
Commercial Court and that under Article 227 of the Constitution of India,
the High Court has the power to entertain civil revision petition against any
interlocutory order passed by the Commercial Court and thus, such a
revision petition was maintainable and also entertainable. It was further held
that the power under Article 227 of the Constitution of India is a very wide
and discretionary power, although it is to be exercised sparingly and only in
appropriate cases. The said judgment of the Co-ordinate Bench of this Court
has been upheld by the Hon'ble Supreme Court vide order dated 17.03.2026
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passed in Special Leave to Appeal (Civil) No.9022-9023/2026. In the
present case, this Court has exercised powers under Article 227 of the
Constitution of India in view of the fact that the impugned order is
absolutely illegal and against law and in case the same is not set aside, then,
the same would cause irreparable loss to the petitioner. As per section 8 of
the Commercial Courts Act 2015, the interlocutory order, against which
revision is not maintainable, can be challenged in appeal in case the decree
of the Commercial Court is against the person, who is aggrieved by the said
order. In the present case, even that remedy is not available to the petitioner
as in case the impugned order is allowed to stand the matter would be
referred to the Arbitration and there would be no occasion for a final decree
to be passed by the Commercial Court so as to keep the remedy of the
petitioner to challenge the impugned order along with the proposed appeal
alive. Thus, in the peculiar and exceptional facts and circumstances of the
present case, this Court finds that the present revision petition under Article
227 of the Constitution of India deserves to be entertained and impugned
order deserves to be set aside.
18. Accordingly, the present revision petition is allowed and
impugned order dated 24.08.2023 is set aside and the application filed under
Section 8 of the Arbitration and Conciliation Act, 1996 is dismissed.
CHALLENGE IN CR-6430-2025
19. Challenge in the present revision petition is to the order dated
18.08.2025 vide which the application filed by the defendant, for placing on
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record the written statement, has been dismissed.
ARGUMENTS ON BEHALF OF THE PETITIONER-DEFENDANT
IN CR-6430-2025
20. Learned counsel for the defendant in the present case has
submitted that there were exceptional facts and circumstances in the present
case on account of which the written statement should be permitted to be
filed even after the period of 120 days. It is submitted that although the
defendant was served on 26.11.2022 but the defendant prepared an
application under Section 8 of the Arbitration and Conciliation Act on
22.12.2022 and immediately on the first date of appearance i.e., 09.01.2023
had filed the same. It is submitted that since the said application was
pending, the defendant did not file the written statement within a period of
120 days as the defendant was very sanguine that the said application would
be allowed and in fact the said application was allowed on 24.08.2023. It is
submitted that thereafter, since the order dated 24.08.2023 was stayed by
the Co-ordinate Bench of this Court, thus, without wasting further time, the
defendant had moved an application for taking on record the written
statement which has been illegally disallowed by virtue of the impugned
order dated 18.08.2025. It is submitted that the facts and circumstances of
the present case are exceptional and in the said circumstances, the defendant
should be permitted to place on record the written statement.
ARGUMENTS ON BEHALF OF THE RESPONDENT-PLAINTIFF IN
CR-6430-2025
21. Learned counsel for the plaintiff has submitted that it is not in
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dispute that the written statement had not been filed within a period of 120
days from the date of service i.e., 26.11.2022 in spite of the fact that there
was no stay of proceedings and in view of the law laid down by the Hon'ble
Supreme Court of India in the case of M/s SCG Contracts India Pvt. Ltd.
vs. K.S. Chamankar Infrastructure Pvt. Ltd. and others reported as
2019(12) SCC 2010, the defendant cannot be given the right to file written
statement and thus, the impugned order has been rightly passed and calls for
no interference.
ANALSYIS AND FINDINGS IN CR-6430-2025
22. The Hon'ble Supreme Court in the case of M/s SCG Contracts
India Pvt. Ltd. (supra), had observed that a perusal of the provisions of
Commercial Courts Act, 2015 would show that beyond 120 days from the
date of service of summons, the defendant shall forfeit the right to file the
written statement and that there is a mandate for the Court to not allow the
written statement to be taken on record beyond the said period. It was
further observed that merely because an application for rejection of the
plaint under Order 7 Rule 11 CPC has been filed, the same cannot be made
as a "ruse for retrieving the lost opportunity to file the written statement". In
view of the said proposition of law, the Hon'ble Supreme Court had set
aside the impugned order therein, which had permitted the defendant therein
to file the written statement beyond the stipulated period of 120 days. The
relevant portion of the said judgment is reproduced as under: -
"8) The Commercials Courts, Commercial Division and Commercial
Appellate Division of High Courts Act, 2015 came into force on
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23.10.2015 bringing in their wake certain amendments to the Code of
Civil Procedure. In Order V, Rule 1, sub-rule (1), for the second proviso,
the following proviso was substituted:
"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 days, 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
and 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."
Equally, in Order 8 Rule 1, a new proviso was substituted as follows:
"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 and twenty days from
the date of service of summons and on expiry of one hundred and 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."
This was re-emphasized by re-inserting yet another proviso in Order 8,
Rule 10 CPC, which reads as under:-
"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 pronouncement of such judgment a decree shall be drawn
up.
Provided further that no Court shall make an order to extend the time
provided under Rule 1 of this Order for filing of the written statement."
A perusal of these provisions would show that ordinarily a written
statement is to be filed within a period of 30 days. However, grace period
of a further 90 days is granted which the Court may employ for reasons to
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be recorded in writing and payment of such costs as it deems fit to allow
such written statement to come on record. What is of great importance is
the fact that beyond 120 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. This is
further buttressed by the proviso in Order VIII Rule 10 also adding that
the Court has no further power to extend the time beyond this period of
120 days.
xxx xxx xxx
11. We are of the view that the view taken by the Delhi High Court in
these judgments is correct 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.
12) However, learned counsel appearing for the respondents relied
strongly upon the judgment in Bhanu Kumar Jain (supra) and Shaikh
Salim Haji Abdul Khayumsab (supra) and, in particular, paras 22 and 27
of the first judgment and paras 4 & 19 of the second judgment.
13) We are of the view that since both these judgments dealt with the
pre-amendment position, they would not be of any direct reliance insofar
as the facts of the present case is concerned.
14) Learned counsel appearing for the respondents also relied upon
R.K. Roja Vs. U.S. Rayudu and another (supra) for the proposition that
the defendant is entitled to file an application for rejection of plaint under
Order VII Rule 11 before filing his written statement. We are of the view
that this judgment cannot be read in the manner sought for by the
learned counsel appearing on behalf of the respondents. Order VII Rule
11 proceedings are independent of the filing of a written statement once
a suit has been filed. In fact, para 6 of that judgment records "However,
we may hasten to add that the liberty to file an application for rejection
under Order 7 Rule 11 CPC cannot be made as a ruse for retrieving the
lost opportunity to file the written statement".
xxx xxx xxx
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17) Clearly, therefore, the 05.12.2017 order which applies in the face
of the amendments made to the Civil Procedure Code cannot be
sustained............"
In the said case, it was observed that liberty to file an
application for rejection of plaint under Order 7 Rule 11 CPC cannot be
made as a reason for granting more time to file written statement.
23. In the present case, it is not in dispute that on 26.11.2022 the
defendant was served and was required to file written statement within 30
days and the Court had the power to extend that period for another 90 days
and thus, the total period for filing the written statement was 120 days i.e.,
upto 26.03.2023. Admittedly, the written statement was not filed within the
said period and as per settled law there is no discretion with the trial Court
to extend the said period further and thus, the trial Court had rightly passed
the impugned order. The mere fact that the defendant had filed an
application under Section 8 of the Arbitration and Conciliation Act which
was decided on 24.08.2023 would not come to the rescue of the defendant
as neither there was any stay of proceeding till 26.03.2023, the last date till
which the written statement was to be filed nor any provision of law has
been highlighted before this Court to show that there was any bar against
filing written statement by the defendant during the pendency of application
under Section 8 of the Arbitration and Conciliation Act. In fact the time
period given for filing of the written statement with respect to commercial
disputes instituted in Commercial Courts, does not provide for any
exception. The proposition of law as propounded by the Hon'ble Supreme
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Court in the case of M/s SCG Contracts India Pvt. Ltd. (supra) would
apply on all fours to the present case also.
24. Additionally it would be relevant to mention that the entire
evidence has been led by the plaintiff by virtue of the fact that the earlier
order allowing the application under Section 8 of the Arbitration and
Conciliation Act was stayed by the Co-ordinate Bench of this Court and the
case is now fixed before the trial Court for final arguments on 30.03.2026
and thus, allowing the present revision petition would cause grave prejudice
to the plaintiff and the entire matter would have to be tried de novo.
25. Keeping in view the abovesaid facts and circumstances, the
impugned order dated 18.08.2025 is upheld and the present revision petition
being meritless deserves to be dismissed and is accordingly dismissed.
26. Pending application, if any, stands disposed of in view of the
abovesaid order.
(VIKAS BAHL)
JUDGE
March 18, 2026.
Davinder Kumar
Whether speaking / reasoned Yes/No
Whether reportable Yes/No
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