A suit was filed on 10.03.2017. 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, 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 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, beyond 120 days from date of service of summons, Defendant shall forfeit right to file the written statement and 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 proposing, 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 filing of a written statement once a suit has been filed. In fact, R.K. Roja, Paragraph 6 records: “we may hasten to add, 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. This argument has no legs to stand on [Manohar Lal, 1962 Suppl 1 SCR 450]. Clearly, 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, CPC to do opposite of what is stated therein. The written statement must be taken off 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].
These aspects were underscored by this Court in SCG Contracts (India) Pvt. Ltd. v. K.S. Chamankar Infrastructure Pvt. Ltd., (2019) 12 SCC 210 in no uncertain terms. Court also made it clear, these mandatory provisions cannot be circumvented even by recourse to inherent powers under Section 151, CPC.
However, it is required to be kept in view, provisions aforesaid and their interpretation in SCG Contracts operate in normal and non-extraordinary circumstances with usual functioning of Courts.
Any proposition which suggests, during non-regular-business days of Trial Court and rather bleak days for humanity – written statement ought to have been filed, could only be disapproved as being impractical and rather preposterous.
– Hon’ble Justice Dinesh Maheshwari, Prakash Corporates v. Dee Vee Projects Limited, [Civil Appeal No. 1318 of 2022] decided on 14.02.2022.