# PRAKASH CORPORATES v. DEE VEE PROJECTS LIMITED

- **Citation:** [2022] 8 S.C.R. 889
- **Court:** Supreme Court of India
- **Decided:** 2022-02-14
- **Case number:** Civil Appeal No. 1318 of 2022
- **Bench:** Dinesh Maheshwari, Vikram Nath
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/prakash-corporates-v-dee-vee-projects-limited-36523
- **Pages:** 42

## Headnote

Code of Civil Procedure, 1908: O.V r.1, O.VIII r.1, O.VIII
r.10 - Extension of time period for filing written statement in view
of the orders passed and issued in the wake of COVID-19 pandemic
- On 21.12.2020 plaintiff-respondent instituted a money suit against
appellant-defendant - On 22.06.2021, trial court refused the prayer
of the appellant for extension of time for filing written statement by
virtue of O.VIII r.1 and held that appellant had forfeited its right to
file written statement - Held: By virtue of s.16 of Commercial Courts
Act, 2015, the Commercial Court is to follow the provisions of CPC
as amended by the Act in the trial of a suit in respect to a Commercial
dispute of a Specified Value - The amended provisions contained
in O.V r.1, O.VIII r.1, O.VIII r.10 state that defendant is to file written
statement within 30 days of service of summons - If he fails to do
so, he may be allowed to file on other day by the Court, however, it
cannot go beyond 120 days from the date of service of summons,
otherwise right to file the written statement would be forfeited - In
the instant case, the 120th day came to end on 06.05.2021, however,
these provisions operate in normal and non-extraordinary
circumstances with the usual functioning of courts - In view of
COVID-19 Pandemic, this Court provided in Suo Moto Writ Petition
that in computing the period of limitation in all proceedings,
prescribed in general or special laws, whether condonable or not,
the period from 15.03.2020 till 02.10.2021 shall stand excluded -
Hence, applicability of orders passed by this court cannot be denied
in relation to the period prescribed for filing of written statement -
Therefore, the time limit for filing the written statement by the
appellant in the subject suit did not come to end on 06.05.2021 -
Written statement notarized by the appellant on 07.01.2021 is
ordered to be taken on record - Commercial Courts Act, 2015.
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890
SUPREME COURT REPORTS
[2022] 8 S.C.R.
Allowing the appeal, the Court
HELD: 1. By virtue of Section 16 thereof, the Commercial
Court is to follow the provisions of CPC as amended by the Act
in the trial of a suit in respect to a Commercial dispute of a
Specified Value. Order V Rule 1, Order VIII Rule 1 and Order
VIII Rule 10 CPC not only envisage strict timelines for filing of
written statement but even provide for consequences of default,
while restricting the powers of the Court to extend the time for
filing written statement beyond the period prescribed. As per
the mandate of the said provisions: (a) the defendant is under an
obligation to file the written statement of his defence within 30
days of service of summons; (b) if he fails to file the written
statement within the said period of 30 days, he may be allowed to
file the written statement on such other day as the Court may
specify for reasons to be recorded in writing and on payment of
such costs as the Court may impose but this other day, in any
case, cannot go beyond 120 days from the date of service of
summons; (c) on expiry of 120th day from the date of service of
summons, the defendant forfeits the right to file the written
statement and no Court can make an order to extend such time
beyond 120 days from the date of service of summons. [Para 16]
[916-A-D]
2. If the aforesaid provisions and explained principles are
literally and plainly applied to the facts of the present case, the
120th day from the date of service of summons came to an end
with 06.05.2021 and the defendant, who had earlier been granted
time for filing its written statement on payment of costs, forfeited
such right with the end of 120th day, i.e., 06.05.2021. However,
the provisions aforesaid and their interpretation in SCG Contracts
operate in normal and non-extraordinary circumstances with the
usual functioning of Courts. The above referred provisions of
CPC are not the only provisions of law which lay down mandatory
timelines for particular proceedings. The relevant principles

## Text

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[2022] 8 S.C.R. 889
889
PRAKASH CORPORATES
v.
DEE VEE PROJECTS LIMITED
(Civil Appeal No(s). 1318 of 2022)
FEBRUARY 14, 2022
[DINESH MAHESHWARI AND VIKRAM NATH, JJ.]
Code of Civil Procedure, 1908: O.V r.1, O.VIII r.1, O.VIII
r.10 - Extension of time period for filing written statement in view
of the orders passed and issued in the wake of COVID-19 pandemic
- On 21.12.2020 plaintiff-respondent instituted a money suit against
appellant-defendant - On 22.06.2021, trial court refused the prayer
of the appellant for extension of time for filing written statement by
virtue of O.VIII r.1 and held that appellant had forfeited its right to
file written statement - Held: By virtue of s.16 of Commercial Courts
Act, 2015, the Commercial Court is to follow the provisions of CPC
as amended by the Act in the trial of a suit in respect to a Commercial
dispute of a Specified Value - The amended provisions contained
in O.V r.1, O.VIII r.1, O.VIII r.10 state that defendant is to file written
statement within 30 days of service of summons - If he fails to do
so, he may be allowed to file on other day by the Court, however, it
cannot go beyond 120 days from the date of service of summons,
otherwise right to file the written statement would be forfeited - In
the instant case, the 120th day came to end on 06.05.2021, however,
these provisions operate in normal and non-extraordinary
circumstances with the usual functioning of courts - In view of
COVID-19 Pandemic, this Court provided in Suo Moto Writ Petition
that in computing the period of limitation in all proceedings,
prescribed in general or special laws, whether condonable or not,
the period from 15.03.2020 till 02.10.2021 shall stand excluded -
Hence, applicability of orders passed by this court cannot be denied
in relation to the period prescribed for filing of written statement -
Therefore, the time limit for filing the written statement by the
appellant in the subject suit did not come to end on 06.05.2021 -
Written statement notarized by the appellant on 07.01.2021 is
ordered to be taken on record - Commercial Courts Act, 2015.
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SUPREME COURT REPORTS
[2022] 8 S.C.R.
Allowing the appeal, the Court
HELD: 1. By virtue of Section 16 thereof, the Commercial
Court is to follow the provisions of CPC as amended by the Act
in the trial of a suit in respect to a Commercial dispute of a
Specified Value. Order V Rule 1, Order VIII Rule 1 and Order
VIII Rule 10 CPC not only envisage strict timelines for filing of
written statement but even provide for consequences of default,
while restricting the powers of the Court to extend the time for
filing written statement beyond the period prescribed. As per
the mandate of the said provisions: (a) the defendant is under an
obligation to file the written statement of his defence within 30
days of service of summons; (b) if he fails to file the written
statement within the said period of 30 days, he may be allowed to
file the written statement on such other day as the Court may
specify for reasons to be recorded in writing and on payment of
such costs as the Court may impose but this other day, in any
case, cannot go beyond 120 days from the date of service of
summons; (c) on expiry of 120th day from the date of service of
summons, the defendant forfeits the right to file the written
statement and no Court can make an order to extend such time
beyond 120 days from the date of service of summons. [Para 16]
[916-A-D]
2. If the aforesaid provisions and explained principles are
literally and plainly applied to the facts of the present case, the
120th day from the date of service of summons came to an end
with 06.05.2021 and the defendant, who had earlier been granted
time for filing its written statement on payment of costs, forfeited
such right with the end of 120th day, i.e., 06.05.2021. However,
the provisions aforesaid and their interpretation in SCG Contracts
operate in normal and non-extraordinary circumstances with the
usual functioning of Courts. The above referred provisions of
CPC are not the only provisions of law which lay down mandatory
timelines for particular proceedings. The relevant principles, in
their normal and ordinary operation, are that such statutory
timelines are of mandatory character with little, or rather no,
discretion with the Adjudicating Authority for enlargement. [Para
17][917-D-F]
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3. Having regard to the purpose for which this Court had
exercised the plenary powers under Article 142 of the Constitution
of India and issued necessary orders from time to time in SMWP
No. 3 of 2020, the period envisaged finally in the order dated
23.09.2021 is required to be excluded in computing the period of
limitation even for filing the written statement and even in cases
where the delay is otherwise not condonable. It gets perforce
reiterated that the orders in SMWP No. 3 of 2020 were of
extraordinary measures in extraordinary circumstances and their
operation cannot be curtailed with reference to the ordinary
operation of law. [Para 20.1][921-C-E]
4. In other words, the orders passed by this Court on
23.03.2020, 06.05.2020, 10.07.2020, 27.04.2021 and 23.09.2021
in SMWP No. 3 of 2020 leave nothing to doubt that special and
extraordinary measures were provided by this Court for
advancing the cause of justice in the wake of challenges thrown
by the pandemic; and their applicability cannot be denied in
relation to the period prescribed for filing the written statement.
It would be unrealistic and illogical to assume that while this Court
has provided for exclusion of period for institution of the suit and
therefore, a suit otherwise filed beyond limitation (if the limitation
had expired between 15.03.2020 to 02.10.2021) could still be
filed within 90 days from 03.10.2021 but the period for filing
written statement, if expired during that period, has to operate
against the defendant. Therefore, in view of the orders passed
by this Court in SMWP No. 3 of 2020, the time limit for filing the
written statement by the appellant in the subject suit did not come
to an end on 06.05.2021. [Paras 20.2, 20.3][921-E-H; 922-A]
New India Assurance Co. Ltd. v. Hill Multipurpose Cold
Storage (P) Ltd. (2020) 5 SCC 757 : 2020 (4) JT 186;
SCG Contracts (India) Private Limited v. K.S.
Chamankar Infrastructure Private Limited and Ors.
(2019) 12 SCC 210 : [2019] 3 SCR 1050 - relied on.
SS Group Pvt. Ltd. v. Aaditiya J. Garg and Anr. 2020
SCC OnLine SC 1050 - referred to.
PRAKASH CORPORATES v. DEE VEE PROJECTS LIMITED
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SUPREME COURT REPORTS
[2022] 8 S.C.R.
Sagufa Ahmed and Ors. v. Upper Assam Polywood
Products Private Limited and Ors. (2021) 2 SCC 317
2020 (9) JT 429; S. Kasi v. State Criminal Appeal No.
452 of 2020 decided on 19.06.2020, (2020) SCC
OnLine SC 529 - held inapplicable.
Case Law Reference
[2019] 3 SCR 1050
relied on Para 6.1
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 1318
of 2022.
From the Judgment and Order dated 09.07.2021 of the High Court
of Chhattisgarh at Bilaspur in W.P. (227) No.312 of 2021.
Sidharth Luthra, Sr. Adv., Joel, Rajesh Rajpal, Ms. Neha Rajpal,
Archit Chauhan, Thakur Anand Mohan Singh, Ayush Kaushik, Angaj
Gautam, Advs. for the Appellant.
Manish Kumar Singhvi, Sr. Adv., Ravi Bharuka, Rishabh Garg,
Advs. for the Respondent.
The Judgment of the Court was delivered by
DINESH MAHESHWARI, J.
Contents
Preliminary.....................................................................................2*
Relevant background aspects and proceedings in the suit....................3*
Order of the Commercial Court dated 22.06.2021..............................8*
Impugned order dated 09.07.2021: the High Court declines
to interfere.....................................................................................9*
Rival Submissions.........................................................................12*
Relevant statutory provisions.........................................................17*
Impact of COVID-19:...................................................................20*
Orders passed in SMWP No.3 of 2020....................................20*
Administrative order issued by the High Court........................28*
Time limit for filing written statement and consequences
of default.....................................................................................30*
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Operation and effect of the orders passed in SMWP No. 3
of 2020.........................................................................................33*
Implication and effect of the administrative order issued
by the High Court.........................................................................46*
Another error of procedure by the Trial Court..................................49*
Conclusion......................................................................................51*
Preliminary
 Leave granted.
2. By way of this appeal, the appellant has challenged the order
dated 09.07.2021, as passed by the High Court of Chhattisgarh at Bilaspur
in WP No. 312 of 2021, whereby the High Court has upheld the order
dated 22.06.2021, as passed by the Commercial Court (District Level),
Nava Raipur, Chhattisgarh in Civil Suit No. 01-B of 2021, in declining
the prayer of the defendant-appellant for granting further time to file its
written statement. The prayer of the defendant-appellant came to be
declined on the ground that in view of the proviso to Order VIII Rule 1
of the Code of Civil Procedure, 19081, as substituted by the Commercial
Courts Act, 20152, such a right of the defendant to file the written
statement stood forfeited with expiry of 120 days from the date of service
of summons.
2.1. The defendant-appellant has questioned the orders so passed
by the Trial Court and by the High Court on various grounds, including
those with reference to the orders passed by this Court in Suo Motu
Writ Petition (Civil) No. 3 of 20203, for extension of the period of limitation
prescribed under the general law of limitation or under any special law,
in view of the challenges faced by the country and difficulties of the
litigants due to COVID-19 pandemic.
Relevant background aspects and proceedings in the suit
3. Looking to the questions arising in this appeal on the appellant's
prayer for an opportunity to file its written statement, dilation on all the
factual aspects of the subject suit is not necessary and only a brief
reference to the background would suffice.
1 Hereinafter also referred to as 'CPC'.
2 Hereinafter also referred to as 'the Act'.
3 Hereinafter also referred to as 'SMWP No. 3 of 2020'.
* Ed. Note: Pagination is as per the original judgment.
PRAKASH CORPORATES v. DEE VEE PROJECTS LIMITED
[DINESH MAHESHWARI, J.]
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SUPREME COURT REPORTS
[2022] 8 S.C.R.
3.1. It appears from the plaint averments and other submissions
that the parties to this litigation and their associated entities were having
business dealings, particularly in relation to the public contract works.
The present litigation relates to two such contract works: one being the
work awarded by the Chhattisgarh Road Development Corporation
Limited for "Construction of Two Laning with Hard Shoulder of TaraPremnagar-Ramanunjnagar Road Section in the State of Chhattisgarh";
and the other being the work awarded by the Public Works Department
of the Government of Chhattisgarh for "Rehabilitation and Upgradation
of NH 111 in the State of Chhattisgarh". It appears that certain portions
of these works were sub-contracted by the plaintiff-respondent to the
defendant-appellant under two work orders bearing Nos. DV/HW/03
dated 01.04.2017 and DV/HW/08 dated 01.07.2017 respectively. There
might be some divergence in the stand of the parties as to the manner of
awarding these contract works and as to the reasons for which certain
portions of these works came to be sub-contracted to the appellant but,
all those aspects are not of relevance for the present purpose.
3.2. The litigation pertains to the monetary liabilities arising from
and under the sub-contracts awarded to the appellant. It appears that
the appellant had raised various running account bills and the respondent
had made various running account payments but, each of the parties has
its own version of its claim against the other. It appears that on 01.07.2020,
the appellant sent a demand notice to the respondent in terms of the
Insolvency and Bankruptcy Code, 20164, demanding payment of an
alleged unpaid operational debt of Rs. 17,94,11,835/-. The respondent
sent a reply to the said notice on 13.07.2020, denying the claim so made
by the appellant and conversely making a claim of Rs. 3,73,24,821/-
against the appellant on account of excess payment.
3.3. It appears further from the submissions sought to be made in
this appeal that on 11.09.2020, the appellant approached the National
Company Law Tribunal, Cuttack Bench5 seeking initiation of corporate
insolvency resolution process against the respondent under Section 9 of
the Code with the allegations that the respondent (corporate debtor) had
failed to make payment of its unpaid operational debt. On the other
hand, on 21.12.2020, the plaintiff-respondent instituted the suit aforesaid
against the defendant-appellant for recovery of the said sum of
4 Hereinafter also referred to as 'the Code'.
5 Hereinafter also referred to as 'the NCLT'.
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Rs.3,73,24,821/- along with interest @ 12% p.a., allegedly being the
excess payment made to the appellant. The plaintiff-respondent also
filed an application under Order XXXVIII Rule 5 read with Section 151
CPC, seeking interim directions of attachment before judgment.
4. After a glance at the background aspects as above, it would be
worthwhile to take note of the relevant events pertaining to the
proceedings in the suit so filed by the plaintiff-respondent, in their feasible
chronology.
4.1. In the said suit instituted on 21.12.2020, the plaintiffrespondent had also filed an application under Section 149 CPC, seeking
time for payment of court fees that was granted and the matter was
taken up on 01.01.2021. On that date, the Trial Court found that the
requisite court fees had been paid and also referred to the submissions
made on behalf of the respondent regarding urgency of matter in view
of the said application seeking interim directions under Order XXXVIII
Rule 5 read with Section 151 CPC. Taking note of the submissions so
made, the Court granted another application moved by the respondent
for dispensing with the requirements of pre-institution mediation in terms
of Section 12-A of the Act; and issued summons to the defendantappellant for appearance and filing of written statement as also reply to
the said interim application.
4.2. The defendant-appellant was served with summons in the
subject suit on 06.01.2021.
4.3. The appellant did appear before the Trial Court in response
to the said summons on the date fixed, i.e., 18.01.2021 but filed an
application under Section 10 read with Section 151 CPC for stay of suit
proceedings on the ground that the proceedings between the parties
were pending before the NCLT. The appellant also sought time to file
reply to the said interim application. The Trial Court granted time to the
parties to file replies to the respective applications and adjourned the
matter to 02.02.2021.
4.4. On 02.02.2021, the appellant sought time for filing written
statement and reply to the interim application on the ground of illness of
the partner of the firm. On the other hand, the respondent also sought
time for filing reply to the application moved on behalf of the appellant
for stay of suit proceedings. While adjourning the matter to 24.02.2021,
the Court directed the parties to file their respective replies to the pending
PRAKASH CORPORATES v. DEE VEE PROJECTS LIMITED
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SUPREME COURT REPORTS
[2022] 8 S.C.R.
applications and also directed the appellant to file its written statement
on the next date.
4.5. On 24.02.2021, while the respondent filed its reply to the
application for stay of suit proceedings but, the appellant sought another
opportunity to file the written statement because of non-availability of
the senior counsel. The respondent raised an objection but, the Trial
Court granted another opportunity on costs of Rs. 200/-; and the appellant
was directed file its written statement as also reply to the application for
interim directions positively by the next date.
4.6. On the next date, i.e., on 15.03.2021, though a reply to the
application seeking interim directions was filed on behalf of the appellant
but, further time was sought for filing the written statement. It was
submitted that assistance of a Delhi-based Law Firm was being taken
and the necessary documents had been sent to Delhi for drafting the
written statement. In view of these submissions, the Trial Court granted
yet further time to the appellant for filing the written statement but, on
costs of Rs. 500/-. The Trial Court adjourned the matter to 15.04.2021
for arguments on both the above-noted applications, moved respectively
by the appellant seeking stay of suit proceedings and by the respondent
seeking attachment before judgment.
4.7. In the ordinary and normal course, the matter would have
proceeded for the slated purpose on 15.04.2021 but, in view of an
administrative order dated 05.04.2021 issued by the jurisdictional High
Court for curtailed functioning of Courts as also in view of its own
administrative order dated 07.04.2021, the Trial Court adjourned the matter
to 22.06.2021, for arguments on both the applications. Indisputably, the
said administrative orders were issued under the force of circumstances
created by the second wave of COVID-19 pandemic, when almost all
the institutions suffered set-backs with disruption of their normal
functioning due to ailments, lock-downs and containment measures.
4.8. It would be apposite to notice at this juncture that in the ordinary
operation of the second proviso to Rule 1(1) of Order V and the proviso
to Rule 1 of Order VIII CPC, as substituted by the Commercial Courts
Act, 2015, the appellant was required to file the written statement within
30 days from the date of service of summons, i.e., within 30 days from
06.01.2021. Further, the appellant could have been given time to file the
written statement by 120th day from the date of service of summons, for
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reasons to be recorded in writing and on payment of such costs as deemed
fit by the Trial Court but, upon expiry of 120 days from the date of
service of summons, the right of the defendant-appellant to file the written
statement was to stand forfeited and the Court could not have allowed
the written statement to be taken on record. It is not in dispute that 120th
day from the date of service of summons expired on 06.05.2021.
Order of the Commercial Court dated 22.06.2021
5. Reverting to the suit proceedings, on 22.06.2021, when the
Trial Court took up the matter for consideration, another prayer for
adjournment was made on behalf of the appellant for filing the written
statement with the submission that limitation had been extended by this
Court in Suo Motu Writ Petition (Civil) No. 3 of 2020. This prayer was
opposed on behalf of the respondent with the submission that more than
120 days had expired since service of summons. The Trial Court referred
to the order-sheets of the case as also to the applicable proviso to Order
VIII Rule 1 CPC; and held that the appellant had forfeited its right to file
the written statement. The Trial Court, thereafter, adjourned the matter
to 09.07.2021 for consideration of the aforesaid applications moved by
the parties.
5.1. This order dated 22.06.2021, being the bone of contention in
this appeal, could be usefully reproduced in extenso as under: -
" 22.06.2021
Present:Shri Rishabh Garg Advocate for the Plaintiff.
Shri Neeraj Zaveri Advocate for the Defendant.
The counsel for the defendant prayed to grant an adjournment
for submission of written statement on the ground that Hon'ble
Apex Court in Suo Moto case has extended the limitation. The
prayer is vehemently opposed by the counsel for the Plaintiff on
the ground that more than 120 days has expired since the service
of summons on the defendants.
As per order-sheet of the present case, service of summons
was effected on the defendant by hand on 06.01.2021 and the
defendants firstly appeared before this Court on 18.01.2021. The
defendants have moved an application under Section 10 of CPC
on 18.01.2021 and filed reply of the application under Order 38
Rule 5 on 15.03.2021.
PRAKASH CORPORATES v. DEE VEE PROJECTS LIMITED
[DINESH MAHESHWARI, J.]
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SUPREME COURT REPORTS
[2022] 8 S.C.R.
The proviso of Order 8 Rule 1 of CPC as incorporated by
Commercial Courts Act says that on expiry of 120 days from
date of service of summons, the defendant shall forfeit the right
to file written statement and the Court shall not allow the written
statement to be taken on record.
Therefore, the defendant in this case has forfeited his right to
submit written statement because more than 120 days have been
passed after 06.01.2021 i.e. date of service of summons on the
defendants. Now the defendants are not permitted to submit written
statement in the case file.
Now to come up on 09.07.2021 for consideration on application
under Order 38 Rule 5 CPC and on application under Section 10
CPC."
Impugned order dated 09.07.2021: the High Court declines
to interfere
6. Seeking to question the aforesaid order dated 22.06.2021, the
defendant-appellant preferred a writ petition under Article 227 of the
Constitution of India before the High Court.
6.1. It was essentially submitted on behalf of the appellant that on
06.05.2021, the Court was closed due to imposition of lockdown in
pandemic control measures; and on 22.06.2021, the application was filed
seeking time for filing written statement on medical ground as the counsel
for the appellant was in quarantine. It was yet further submitted with
reference to the orders passed by this Court in Suo Motu Writ Petition
(Civil) No. 3 of 2020 that, while computing the period of limitation
prescribed under the general law or under special laws, the period
between 15.03.2020 to 14.03.2021 would stand excluded; and on
27.04.2021, the suspension of limitation was further extended by this
Court. Thus, it was contended that counting of limitation by the Trial
Court without taking into consideration the period of lockdown was
erroneous. Reference was made to various decisions of this Court,
including those in SCG Contracts (India) Private Limited v. K.S.
Chamankar Infrastructure Private Limited and Ors.: (2019) 12
SCC 210 and SS Group Pvt. Ltd. v. Aaditiya J. Garg and Anr.: 2020
SCC OnLine SC 1050.
6.2. The petition so filed by the appellant was opposed on behalf
of the respondent with two-fold submissions. In the first place, it was
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urged that the impugned order being an appealable one, the same could
not have been challenged by way of a petition under Article 227 of the
Constitution of India. Then, with reference to the decision in SCG
Contracts(supra), it was submitted that the Commercial Court had no
power to extend the time beyond the period of 120 days. Further, a
decision of this Court in the case of Sagufa Ahmed and Ors. v. Upper
Assam Polywood Products Private Limited and Ors.: (2021) 2 SCC
317 was cited in support of the submission that the order in SMWP No.
3 of 2020 was only for the purpose of extension of period of limitation
and not for condonation of delay. It was contended that the time for
filing written statement was that of prescribed period and, being not a
matter of limitation, was not covered under the order passed in SMWP
No. 3 of 2020.
6.3. After having heard learned counsel for the parties, the High
Court held in the first place that the order passed in terms of Order VIII
Rule 1 was not an appealable one under Order XLIII CPC and hence,
the petition was indeed maintainable. However, as regards challenge to
the order passed by the Trial Court, the High Court referred to the
aforesaid decisions in SCG Contracts and Sagufa Ahmed and held
that the limitation provided in the enactment cannot be extended by any
Court. The High Court also observed that the present one was not a
case for condonation of delay as the written statement had not been
filed at all. Thus, the High Court found no reason to consider interference
and proceeded to dismiss the writ petition while observing as under: -
 "Taking into consideration the view settled by the Supreme Court
and the applicability of the order of Supreme Court in Suo-moto
Writ (Civil) No. 03 of 2020, the glaring fact present in this case is
this, that the petitioners have till date not filed any written statement,
the prescribed time for filing written statement and the time which
can be extended by the Court both have expired. The case was
fixed for hearing on 22.06.2021 even on that date, the petitioner
was not ready and prepared to file the written statement, therefore,
it appears to be a case in which the petitioner is making a prayer
for extension of limitation. No Court can grant any extension of
limitation against the provisions of the enactment under which the
case is being considered and heard. Further, it is not a case of
condonation of delay as the written statement is still not filed.
Hence, I am of this view that the learned Commercial Court has
not committed any error in rejecting the prayer made by the
PRAKASH CORPORATES v. DEE VEE PROJECTS LIMITED
[DINESH MAHESHWARI, J.]
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petitioner for granting time to file written statement. Accordingly,
no substance is found to be present in this petition, hence, this
petition is dismissed at motion stage."
7. Seeking to challenge the order so passed by the High Court,
the defendant-appellant has approached this Court. The plaintiffrespondent has appeared in caveat. Having regard to the subject-matter,
we have heard the learned counsel for parties finally at the admission
stage itself.
Rival Submissions
8. While assailing the order dated 09.07.2021 as passed by the
High Court and the order dated 22.06.2021 as passed by the Trial Court,
learned senior counsel for the defendant-appellant has referred to the
record of proceedings in the subject suit as also various orders passed in
SMWP No. 3 of 2020 by this Court; and has contended that in the given
set of peculiar circumstances, prayer of the appellant for granting time
for filing the written statement ought to have been granted.
9. The main plank of submissions of the learned senior counsel
for the appellant has been that the impugned orders are flawed, being
contrary to the mandate and directions of this Court in SMWP No. 3 of
2020.
9.1. The learned counsel would submit that the subject suit itself
was filed by the respondent at the time when the order dated 23.03.2020
passed by this Court in SMWP No. 3 of 2020 was in operation; and
summons was also served on the appellant during that period. With
reference to various other orders passed in SMWP No. 3 of 2020, the
contention has been that the entire period from 15.03.2020 until 02.10.2021
stands excluded while computing the period of limitation and that,
obviously, covers the prescribed period for filing written statement in the
present case.
9.2. The learned senior counsel has contended that the intention
behind the orders in SMWP No. 3 of 2020 had been to protect the litigants
from complications stemming from the pandemic and to do away with
the need of explaining the individual circumstances in each and every
case; and no delay could be imputed in this matter on the appellant
because, any such question of delay in filing the written statement would
have arisen only after expiry of the extended period of limitation, as
provided by this Court in SMWP No. 3 of 2020.
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9.3. The learned senior counsel would also submit that the Trial
Court and the High Court have failed to consider the adverse
circumstances faced by the appellant where, apart from the entire district
of Raipur having been declared a containment zone and restriction/
lockdown having been imposed in the month of April, 2021, the fact of
the matter had been that the partners of the appellant firm as also their
family members suffered from COVID-19 and they were either in
quarantine or were attending on other family emergencies. Moreover,
the appellant's counsel and his mother were in quarantine and, in fact,
the counsel's mother passed away due to health complications. According
to the learned counsel, in these trying and unfortunate times, when the
rigour of limitation period had been under eclipse pursuant to the orders
of this Court, the Trial Court and the High Court ought not to have closed
the right to file the written statement.
9.4. The learned counsel has also referred to the fact that as per
its own administrative order dated 05.04.2021, the High Court of
Chhattisgarh had provided for restricted functioning of the Courts, where
only the matters of urgent nature were being taken up; and the suit in
question was not falling under any of those categories. In this view of
the matter too, it could not have been concluded that the right to file the
written statement conclusively came to an end by the operation of statute.
In other words, when such rigorous provisions in the statute were not in
full operation, the right of filing the written statement could not have
been taken as closed.
9.5. It has also been contended on behalf of the appellant that the
Trial Court has erred in not taking up and deciding the application filed
by the appellant under Section 10 CPC for stay of suit proceedings
because the proceedings as regards the subject-matter of the suit were
already pending before the NCLT. It has yet further been submitted that
the appellant had got the written statement prepared and notarised on
07.07.2021; and the same deserves to be taken on record.
10. While countering the submissions above-noted and while
supporting the orders impugned, learned senior counsel for the plaintiffrespondent has contended, with all emphasis, that the appellant cannot
claim the extension of period of limitation by reference to the orders
passed in SMWP No. 3 of 2020, particularly when its right to file the
written statement stands forfeited by operation of law.
PRAKASH CORPORATES v. DEE VEE PROJECTS LIMITED
[DINESH MAHESHWARI, J.]
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10.1. With elaborate reference to the record of proceedings of
the subject suit, it has been submitted on behalf of the respondent that
the appellant, despite having appeared on 18.01.2021, did not choose to
file the written statement within 30 days of service of summons, as
permissible by law; and twice over, sought further time to file the written
statement during the extendable period of 90 days; and the Trial Court
indeed extended the time on 24.02.2021 and 15.03.2021. According to
the learned senior counsel for the respondent, the extendable period of
limitation for filing the written statement was available to the appellant
until 06.05.2021 but not beyond. The learned counsel would submit that
in the given fact situation, the alleged notarised written statement dated
07.07.2021 had been well beyond the extendable period of 90 days and
thus, no relaxation could be granted to the appellant when its right to file
the written statement stands forfeited.
10.2. Learned senior counsel for the respondent would submit
that the orders passed in SMWP No. 3 of 2020 cannot be of any aid or
help to the appellant because no indefeasible right accrues to claim in
the discretionary extendable period to be determined by the Court. The
learned counsel has emphasised on the submissions that in the orders
passed in SMWP No. 3 of 2020, the extension of period of limitation
commencing from 23.03.2020 to 02.10.2021 was for institution of suits
or applications; and even when Section 12-A of the Act was brought
within the purview of the extension of limitation period, there was no
direction that the period to file the written statement before the
Commercial Court would also be extended automatically, despite the
defendant appearing and participating in the proceedings. According to
the learned counsel, the defendant cannot take blanket immunity by not
filing the written statement and then, seeking cover of the orders passed
in SMWP No. 3 of 2020.
10.3. With reference to the decision of this Court in the case of S.
Kasi v. State: Criminal Appeal No. 452 of 2020 decided on
19.06.2020 [(2020) SCC OnLine SC 529], it has been argued on
behalf of the respondent that a 3-Judge Bench of this Court has specifically
ruled that the said order dated 23.03.2020 in SMWP No. 3 of 2020 is not
applicable to all the applications; and benefit of the order of extension of
limitation cannot be taken by police while filing chargesheet under
Section167(2) of the Code of Criminal Procedure, 19736. Further, with
6 Hereinafter also referred to as 'CrPC'.
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reference to the decision in the case of Sagufa Ahmed (supra), it has
been argued that what was extended in SMWP No. 3 of 2020 was only
the period of limitation and not the period upto which delay could be
condoned in exercise of discretion conferred by the statute. The learned
counsel would also submit with reference to the decision of this Court in
SCG Contracts (supra) that where a defendant fails to file the written
statement within permissible time, it is beyond the Court's power to
condone the delay.
11. In his rejoinder submissions, the learned senior counsel for the
appellant has contended that S. Kasi's case (supra) related to the
fundamental right of liberty, referable to Article 21 of the Constitution of
India read with Section 167(2) CrPC; and the observations of this Court
in the said case cannot operate in relation to the procedural law concerning
civil litigation and more particularly, in relation to the right of filing written
statement in a civil suit. The learned counsel would further submit that
the decision in the case of Sagufa Ahmed (supra) is of no application to
the present case because the observations therein came to be made in
the setup of the facts that time for filing the appeal had expired even
prior to the order dated 23.03.2020 passed by this Court in SMWP No.
3 of 2020.
12. We have given anxious consideration to the rival submissions
and have examined the record with reference to the law applicable.
Relevant statutory provisions
13. The principal question calling for determination in this matter
is as to whether the opportunity of filing written statement in the subject
suit has rightly been declined or the appellant could be extended further
relaxation in view of the orders passed and issued in the wake of COVID19 pandemic. However, before proceeding further, worthwhile it would
be to take note of the relevant provisions of law, particularly those dealing
with the right of filing written statement and default stipulations in that
regard, as applicable to the subject suit.
13.1. The suit in question answers to the description of
'Commercial dispute of a Specified Value' and in its regard, the relevant
applicable provisions of CPC are those as amended by the Schedule to
the Commercial Courts Act, 2015 read with Section 16 thereof. Section
12-A of the Act has also come under reference in the orders passed in
SMWP No. 3 of 2020. Thus, we may usefully reproduce Section 12-A
and Section 16 of the Act as under: -
PRAKASH CORPORATES v. DEE VEE PROJECTS LIMITED
[DINESH MAHESHWARI, J.]
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"12-A. Pre-Institution Mediation and Settlement. - (1) A
suit, which does not contemplate any urgent interim relief under
this Act, shall not be instituted unless the plaintiff exhausts the
remedy of pre-institution mediation in accordance with such
manner and procedure as may be prescribed by rules made by
the Central Government.
(2) The Central Government may, by notification, authorise the
Authorities constituted under the Legal Services Authorities Act,
1987 (39 of 1987), for the purposes of pre-institution mediation."
"16. Amendments to the Code of Civil Procedure, 1908 in
its application to commercial disputes. - (1) The provisions
of the Code of Civil Procedure, 1908 (5 of 1908) shall, in their
application to any suit in respect of a commercial dispute of a
Specified Value, stand amended in the manner as specified in the
Schedule.
(2) The Commercial Division and Commercial Court shall follow
the provisions of the Code of Civil Procedure, 1908 (5 of 1908),
as amended by this Act, in the trial of a suit in respect of a
commercial dispute of a Specified Value.
(3) Where any provision of any Rule of the jurisdictional High
Court or any amendment to the Code of Civil Procedure, 1908, by
the State Government is in conflict with the provisions of the Code
of Civil Procedure, 1908 (5 of 1908), as amended by this Act, the
provisions of the Code of Civil Procedure as amended by this Act
shall prevail."
13.2. By virtue of sub-clauses A, D(i) and D(iv) of Clause 4 of
the Schedule to the Commercial Courts Act, 2015, respectively the
provisions of CPC in Order V Rule 1(1), Order VIII Rule 1 and Order
VIII Rule 10, concerning the time period within which written statement
could be filed as also the consequences of default, stand amended in
their application to the suit of present nature. While incorporating these
amendments, the applicable provisions of CPC would read as under7: -
 Order V Rule 1
"1. Summons. - (1) When a suit has been duly instituted, a
summons may be issued to the defendant to appear and answer
7 Note: The provisos marked with asterisk (*) are the amended provisions, as applicable
to Commercial dispute of Specified Value i.e., the suit tried by a Commercial Court.
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the claim and to file the written statement of his defence, if any,
within thirty days from the date of service of summons on that
defendant:
Provided that no such summons shall be issued when a
defendant has appeared at the presentation of plaint and admitted
the plaintiff's claim:
*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 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.
(2) A defendant to whom a summons has been issued under
sub-rule (1) may appear:-
(a) in person, or
(b) by a pleader duly instructed and able to answer all material
questions relating to the suit, or
(c) by a pleader accompanied by some person able to answer
all such questions.
(3) Every such summons shall be signed by the Judge or such
officer as he appoints, and shall be sealed with the seal of the
Court."
Order VIII Rule 1
"1. Written statement.-The defendant shall, within thirty days
from the date of service of summons on him, present a written
statement of his defence:
*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
PRAKASH CORPORATES v.