A suit was filed on 10.03.2017. The defendant was served with summons on 14.07.2017. 120 days from this date takes us to 11.11.2017. No written statement had been filed. However, an Order 7, Rule 11 application was filed.
The Commercial Courts, Commercial Division and Commercial Appellate Division of High Courts Act, 2015 came into force on 23.10.2015 bringing certain amendments to The Code of Civil Procedure, 1908. A perusal of 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 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.
Earlier law on Order 8, Rule 1 has now been set at naught. R.K. Roja, (2016) 14 SCC 275 was relied upon for the proposition that the defendant is entitled to file an application for rejection of plaint under Order 7, Rule 11 before filing his written statement. Order 7, Rule 11 proceedings are independent of the filing of a written statement once a suit has been filed. In fact, R.K. Roja, Paragraph 6 records: “we may hasten to add that the liberty to file an application for rejection under Order 7, Rule 11 cannot be made as a ruse for retrieving the lost opportunity to file the written statement“.
The inherent powers of Court were also relied upon to state that, in any case, a procedural provision such as contained in the amendment, which may lead to unjust consequences can always, in the facts of a given case, be ignored where such unjust consequences follow. This argument has no legs to stand on [Manohar Lal, 1962 Suppl 1 SCR 450]. Clearly, the clear, definite and mandatory provisions of Order 5 read with Order 8, Rule 1 and 10 cannot be circumvented by recourse to inherent power under Section 151 to do the opposite of what is stated therein. The written statement must be taken off the record.
– Hon’ble Justice R.F. Nariman, M/s. SCG Contracts India Pvt. Ltd. v. K.S. Chamankar Infrastructure Pvt. Ltd., [Civil Appeal No. 1638 of 2019].