9911796707
TMI Blog2021 (2) TMI 1363X X X X Extracts X X X X X X X X Extracts X X X X ..... dant No. 9 is aware that, the writ of summons had been issued on February 6, 2020. The defendant No. 9 had received the writ of summons on February 7, 2020. In terms of the provisions of Order V Rule 1 and Order VIII Rule 1 of the Code of Civil Procedure 1908 as applicable to a suit in the Commercial Division governed by the provisions of the Commercial Courts Act, 2015, 30 days to file written statement in the suit had expired on March 8, 2020 and 120 days had expired on June 6, 2020. 3. Learned senior advocate appearing for the defendant No. 9 has referred to the order dated March 23, 2020 passed by the Hon'ble Supreme Court in the Suo Motu Writ Petition (C) No. 3 of 2020 and contended that, the period of limitation, stands suspended with effect from March 15, 2020. He has referred to further orders of the Hon'ble Supreme Court including the order dated December 17, 2020 passed in such writ petition. He has submitted that, the order of suspension of the period of limitation, remains effective till date. 4. Learned senior advocate appearing for the defendant No. 9 has referred to Section 16 of the Act of 2015 and Section 21 thereof. He has submitted that, the provisions of the A ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lying upon 2020 Volume 5 Supreme Court Cases 757 (New India Assurance Company Limited. V. Hilli Multipurpose Cold Storage Private Limited) learned senior advocated appearing for the defendant No. 9 has submitted that SCG Contract (India) Private Limited (supra) has been noticed therein. He has drawn the attention of the Court to the provisions of the Consumer Protection Act, 1986 particularly Section 38 thereof. 7. Referring to the order dated December 17, 2020 passed by the Hon'ble Supreme Court in Civil Appeal No. 4085 of 2020 (M/s. SS Group Private Ltd. V. Aditya J. Garg and another) learned senior advocated appearing for the defendant No. 9 has submitted that, the Supreme Court had allowed the written statement to be filed therein. On the strength of the same analogy, the applying defendants herein be allowed to file written statement. 8. Learned senior advocate appearing for the defendant No. 9 has referred to Section 421(3) of the Companies Act, 2013. He has submitted that, the proviso to Section 421(3) uses the word "may". He has submitted that, the provisions of Section 421(3) of the Companies Act, 2013 are not pari materia with that of the provisions of the Act of 2015 s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d Order VIII Rule 1 of the Code of Civil Procedure, 1908 so far as they are applicable to a commercial suit pending in the Commercial Division of a High Court. He has submitted that, the initial period of 30 days is the period of limitation prescribed by statute. The next 90 days after the expiry of the period of 30 days is the period during which, the Court can exercise discretion of extension of time to file the written statement. In the facts of the present case, none of the applying defendants have been vigilant or prompt in applying extension of time to file written statement. He has submitted that, the 120 days to file written statement from the date of service of the writ of summons expired on June 6, 2020. It is after more than eight months that the applying defendants have applied for extension of time to file written statement. He has submitted that the application for extension of time to file written statement does not contain any ground for extension. He has referred to the conduct of the applying defendants. He has submitted that, the applying defendants have contested other proceedings in diverse forai Therefore, the plea of the applying defendants for extension of t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... has been noted above, the other applying defendants are more or less similarly situated so far as the service of writ of summons, and the expiry of 120 days from the date of service of the summons on them as also the date on which they have applied for extension of time to file written statements. 18. The decision of the co-ordinate bench rendered in Siddha Real Estate Development Private Limitted(supra) has been in respect of an application for extension of time to file written statement by a defendant in a commercial suit pending before the Commercial Division of the High Court. It has considered the issue whether the initial period of 30 days is the prescribed period for the purpose of limitation and whether the defendant can take refuge under the order dated March 3, 2020 passed by the Supreme Court in Suo Motu Writ Petition (C) No. 3 of 2020. It has held that, the 90 days period beyond the prescribed period of limitation of 30 days, in Order VIII Rule 1, is the additional period and not the prescribed period of limitation. With regard to the second issue, it has held that, the order dated March 23, 2020 has to be read with the order of September 18, 2020. It has held that, th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (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 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 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 h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... andatory and not directory. 23. In SS Group Private Limited (supra), the Supreme Court has considered the order dated March 23, 2020 passed in Suo Motu Writ Petition No. 3 of 2020 in the context of Section 38(2)(a), of the Consumer Protection Act , 2019. In the facts of that case, the period of limitation of 30 days to file written statement had expired on August 12, 2020 during which, the order dated March 23, 2020 was operating. Since, the original period of limitation expired during period of time when, the order dated March 20, 2020 was in operation, the Supreme Court had allowed filing of the written statement therein. The facts scenario in the present case are different from that as has been obtaining in SS Group Private Limited (supra). The period of 30 days to file written statement in the present suit, had expired on March 8, 2020 way prior to the order dated March 23, 2020 coming into effect from March 15, 2020. 24. In the facts of the present case, the prescribed time to file written statement by the applying defendants had expired on March 8, 2020 or thereabouts, at least way before the order dated March 23, 2020 passed by the Hon'ble Supreme Court in Suo Motu Writ Pe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... te of service of the writ of summons, the Court shall allow the defendant to file written statement on the Court recording the reasons in writing for the same and on payment of such costs by the defendant as the Court may deem fit. The original period of limitation for filing written statement has been prescribed to be 30 days with a condonable period of 90 days thereafter being available to the Court to condone the delay in filing the written statement within 30 days, provided the Court records the reasons for doing so and the defendant pays such costs at the Court may deem fit. The object of the Act of 2015 has been stated to provide for speedy disposal of high value commercial disputes. In such context, where speedy disposal is one of the objects of the Act of 2015, then, the period of limitation as has been prescribed in the Act of 2015 has to be understood to be mandatory rather than directory. The provisions of the Act of 2015 are required to be strictly construed. 27. In the application for extension of time to file written statement, the applying defendant have taken shelter under the ongoing pandemic, the declaration of lockdown, the shutdown of the offices of the applyin ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
