Calcutta High Court
A.K. Ghosh & Company & Ors vs Biman Bose & Ors on 19 August, 2024
IN THE HIGH COURT AT CALCUTTA
ORIGINAL SIDE
COMMERCIAL DIVISION
Present:
The Hon'ble Justice Krishna Rao
GA (COM) No. 4 of 2024
In
CS (COM) No. 440 of 2024
(Old No. CS 274 of 2022)
A.K. Ghosh & Company & Ors.
Versus
Biman Bose & Ors.
Mr. Rupak Ghosh
Mr. Sankarsan Sarkar
Mr. Mehboob Rahman
Mr. Ayan Duta
... for the plaintiffs.
Mr. Utpal Bose, Sr. Adv.
Mr. Arup Nath Bhattacharyya
Mr. Saptarshi Banerjee
Ms. Sayani Das
Ms. Shreyasee Basu
2
Ms. Sreetama Biswas
Mr. Arya Bhattacharyya
... for the defendant nos. 1, 2, 3, 5 & 6.
Hearing Concluded On : 08.07.2024
Judgment on : 19.08.2024
Krishna Rao, J.:
1. The plaintiffs have filed the present application seeking leave to file the additional written statement to the counter-claim filed by the defendant nos. 1, 2, 3, 5 and 6. On receipt of writ of summons, the defendant nos. 1, 2, 3, 5 and 6 have entered appearance but could not file their written statement within prescribed time, therefore, have filed an application being G.A. No. 3 of 2023 praying for extension of time to file their written statement.
2. By an order dated 13th July, 2023, this Court allowed the application filed by defendants, taking into consideration that the defendants have filed application prior to the expiry of 120 days and the written statement was also verified and affirmed prior to 120 days.
3. The written statement along with counter claim filed by the defendant nos.1, 2, 3, 5 and 6 was duly served upon the plaintiff's advocate-on- record by a communication letter dated 18th July, 2023.
4. The plaintiffs upon finding out that the defendant nos.1, 2, 3, 5 and 6 had made a counter-claim, instructed their Advocate to prepare an additional written statement. As per the advice of the advocate for the 3 plaintiffs, the Counsel for the plaintiffs drafted an additional written statement on 15th and 22nd September, 2023 and it was then sent to the representatives of the plaintiffs for their comments on the same.
5. In the meantime, the puja vacation of this Court had begun from 19th October, 2023 to 16th November, 2023 and during that period, the Advocate of the plaintiffs was not available and the plaintiffs could revert only after the puja vacation. The Counsel for the plaintiffs settled the said written statement on 24th November, 2023 and again on 29th November, 2023, the same was forwarded to the representatives of the plaintiffs with some queries against the allegations made in the written statement and counter claim and sought for supporting documents to controvert the counter claim of the defendants no.1, 2, 3, 5 and 6.
6. The representatives of the plaintiffs reverted with supporting documents to the queries only on 10th January, 2024 after going through the records of the accounts for the financial years 2012-13 to 2020-2021.
7. Mr. Rupak Ghosh, Learned Advocate representing the plaintiffs submits that the previously the records of accounts of the plaintiff no.1 were maintained in registers as such the representatives of the plaintiffs had to go through such old records which were lying in the godown of the plaintiff no.1. He submits that at the time of searching of the old records, the plaintiffs discovered that many of such records were destroyed which led to the herculean task of referring to the concern 4 documents for such entries which were required to fulfil the queries of the counsel in order to finalise the additional written statement.
8. Mr. Ghosh submits that only upon finding the concerned documents lying in the godown, the additional written statement could be finalised through conferences held on 17th January 2024, 4th February 2024 and 15th February, 2024.
9. Mr. Ghosh submitted that a bare reading of the order dated 13th July, 2023, it would be apparent that neither the plaintiffs have been given any opportunity to file additional written statement nor any time was fixed for filling of the same and hence, the present application becomes necessary for the plaintiffs in order to file their additional written statement.
10. Mr. Ghosh submitted that there is no time limit specified in filing additional written statement to the counter claim as it would be evident from the provisions of Order VIII, Rule 6A(3) of the Code of Civil Procedure, 1908, which only specifies that an additional written statement can be filed after obtaining leave of the Court. He submits that such proposition of law would also be evident from the provisions of Order VIII, Rule 9 read with Order VIII Rule 10 of the Code of Civil Procedure.
11. Mr. Ghosh submitted that Order VIII, Rule 9 read with Order VIII, Rule 10 proviso, it would be evident that there is no time fixed for filing the additional written statement to the counter claim and the same can be 5 filed upon taking leave of the Court and it is the duty of the Court to fix a time for the same. He submits that from the proviso to Order VIII, Rule 10, it will be evident that it only specifies Order VIII, Rule 1 of the Civil Procedure Code and Order VIII, Rule 9, has been specifically "left out" or "omitted" from the proviso to Order VIII Rule 10 of the Code of Civil Procedure.
12. Mr. Ghosh in support of his argument has relied upon the judgment in the case of Nasima Naqi v. Todi Tea Company Limited and Ors. reported in (2019) 2 Cal LJ 232, and submitted that "Whatever has been not included has by implication been excluded by the legislation", which means that if the legislature in its wisdom has omitted certain provisions, the same has been done intentionally so that the embargo of the defendants forfeiting their right to file Written Statement beyond the period for 120 days cannot be applied mutatis mutandis to the plaintiffs filing an additional written statement to the alleged counter claim filed by the defendants.
13. Mr. Ghosh submitted that that while interpreting the amended provisions of the Commercial Courts Act, 2015, it can be understood that again the embargo provided under Order VIII, Rule 1, is only upon the defendants, wherein the time to file written statement should not exceed more than 120 days and not for filing additional written statement to the counter claim.
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14. The plaintiffs state that the Chapter IX Rule 12A of the Original Side Rules of this Court, also does not put any embargo on the plaintiffs to file an additional written statement to the counter-claim filed by the defendants beyond the period of 120 days.
15. The plaintiff further submits that the Commercial Courts Act, 2015, has only amended a few provisions of the Code of Civil Procedure, 1908, and the rest of the provisions of the Code of Civil Procedure continue to maintain its authenticity and the legislature never intended that the amended provisions of the Commercial Courts Act, 2015 will override the older provisions of the Code of Civil Procedure, 1908 and reliance was placed on the judgment of Prakash Corporates v. Dee Vee Projects Ltd. reported in (2022) 5 SCC 112 wherein the Hon'ble Supreme Court held that :
"39.2. We are constrained to reiterate the unquestionable principles that the rules of procedure are essentially intended to subserve the cause of justice and are not for punishment of the parties in conduct of the proceedings. Of course, in the ordinary circumstances, the mandates of Rule 1(1) of Order 5, Rule 1 of Order 8 as also Rule 10 of Order 8, as applicable to the commercial dispute of a specified value, do operate in the manner that after expiry of 120th day from the date of service of summons, the defendant forfeits the right to submit his written statement and the Court cannot allow the same to be taken on record but, these provisions are intended to provide the consequences in relation to a defendant who omits to perform his part in progress of the suit as envisaged by the rules of procedure and are not intended to override all other provisions of CPC like those of Section 10. These comments are necessitated for the reason that the trial court seems to have simply ignored the requirements of 7 dealing with the pending applications with requisite expedition. We say no more.
16. The plaintiffs say that the Written Statement was forwarded by a letter dated 18th July, 2023, to the plaintiff and from perusal of the Written Statement it is evident that there is flagrant violation of Order XI Rule 1(7) to Order XI Rule 1(11) of the Civil Procedure Code, 1908 and also from the case status report it is evident that there had been no scrutiny of the alleged counter claim by the Learned Master prior to admission of the written statement. Thus, a final authenticated copy of the alleged counter claim was never received by the plaintiffs.
17. The plaintiffs in support of their case relies on the following judgments :
(i) Nasima Naqi v. Todi Tea Company Limited and Others reported in 2018 SCC OnLine Cal 16823;
(ii) Nasima Naqui v. Todi Tea Company Limited and Others reported in 2019 SCC OnLine SC 1601;
(iii) Ambalal Sarabhai Enterprises Limited v.
K.S. Infraspace LLP and Another reported in (2020) 15 SCC 585;
(iv) Barthels & Luders Gambh v. M.V. Dominique reported in 1987 SCC OnLine Bom 333;
(v) Prakash Corporates v. Dee Vee Projects Limited reported in (2022) 5 SCC 112;
(vi) Nirottam Sharma v. Ramkishore & Anr.
reported in 2019 (1) RLW 884;
(vii) Unreported judgment of the High Court of Bombay, in the case of Mrs. Shalini Nunes 8 Mascarnehas and Ors. v. Mr. Trevor Nunes and Anr., Writ Petition No. 659 of 2008.
(viii) Unreported judgment of the High Court of Judicature at Madras, in the case of M/s.
CSCO LLC and Anr. v. M/s. Lakshmi Saraswati Spintex Limited and Ors., Application No.4791 of 2021 in C.S. No. 697 of 2017.
18. Mr. Utpal Bose, Learned Senior Advocate representing defendant Nos. 1, 2, 3, 5 and 6 submits that the plaintiffs have filed the instant application for leave to file additional written statement to the counter claim by ignoring the mandatory requirement to file written statement to the counter claim within 30 days and such period can be extended by Court up to 90 days i.e. a maximum of 120 days in a suit or counter claim under the Commercial Courts Act, 2015.
19. Mr. Bose submits that the defendants filed their written statement along with counter claim and it was duly served upon the plaintiffs in pursuant to the order dated 13th July, 2023, by a covering letter dated 18th July, 2023.
20. The defendants says that upon a conjoint and harmonious reading of Chapter IX, Rule 12 and Rule 12A of the Original Side Rules of this Court, it would be evident that there is no necessity for any summons to be sent for the purpose of a counter claim. He submits Rule 12 of Chapter IX of the Original Side Rules of this Court states that once the defendant has entered appearance, a counter claim will be regarded as 9 sufficiently served by way of a notice and there is no additional requirement thereafter.
21. The defendants submits that the case status as available on the official website of this Court shows that procedures have been duly complied with and the Learned Master after scrutiny, the Counter Claim was admitted by an order dated 13th July, 2023. After admission of counter claim by the Learned Master, the defendants forwarded written statement along with counter claim to the plaintiffs on18th July, 2023.
22. The defendants state that it can be inferred from the submissions made by the plaintiffs that they have received the counter claim and had also started acting upon by taking necessary steps which also includes giving instructions for filing of an additional written statement. However, upon failing to comply with the mandatory time line to file such additional written statement and upon realising that an approximate delay of 210 days had already occurred, the plaintiffs then filed the instant application seeking leave to file their additional written statement.
23. Mr. Bose submitted that the judgment relied by the plaintiffs in the case of M/s. CSCO LLC (supra) has been over ruled by the Hon'ble Division Bench of Madras High Court in the batch of cases by an order dated 22nd December, 2023. He submits that Hon'ble Division Bench of Madras High Court held that after time limit for filing written statement to counter claim is 120 days.
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24. The question in the present application whether time to file written statement by the plaintiffs to the counter claim filed by the defendants in the commercial suit can be accepted after the period of 120 days from the date of receipt of counter claim?
25. On receipt of writ of summons, the defendants could not file written statement within 30 days and accordingly, the defendants had filed an application being G.A. No. 3 of 2023 for extension of time to file written statement. By an order dated 13th July, 2023, this Court directed the department to accept written statement if the defendants approached on the same day, provided the same is in form and in order. This Court also directed the defendants to serve the copy of written statement to the plaintiff within 18th July, 2023.
26. It is admitted by the plaintiff that as per the order passed by this Court, the defendants have served the copy of written statement along with counter claim by a letter dated 18th July, 2023 which was duly received by the plaintiffs on the same day.
27. Now the plaintiffs have filed this application for grant of leave to file additional written statement to the counter claim of the defendant nos. 1, 2, 3, 5 and 6 within two weeks from the date of passing of order.
28. Order VIII, Rule 1 to 10 of the Code of Civil Procedure, 1908, reads as follows:
"WRITTEN STATEMENT, SET-OFF AND COUNTER-CLAIM, 11
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 same on such other day, as may be specified by the Court, for reasons to be recorded in writing, but which shall not be later than ninety days from the date of service of summons.
*SPECIAL AMENDMENT Commercial dispute of a Specified Value.- In its application to any suit in respect of a commercial dispute of a Specified Value, in Order VIII, in rule 1, substitute the following proviso, namely, : -
"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 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."
1A. Duty of defendant to produce documents upon which relief is claimed or relied upon by him.--(1) Where the defendant bases his defence upon a document or relies upon any document in his possession or power, in support of his defence or claim for set-off or counter-claim, he shall enter such document in a list, and shall produce it in Court when the written statement is presented by him and shall, at the 12 same time, deliver the document and a copy thereof, to be filed with the written statement. (2) Where any such document is not in the possession or power of the defendant, he shall, wherever possible, state in whose possession or power it is.
(3) A document which ought to be produced in Court by the defendant under this rule, but, is not so produced shall not, without the leave of the Court, be received in evidence on his behalf at the hearing of the suit.
(4) Nothing in this rule shall apply to documents--
(a) produced for the cross-examination of the plaintiff's witnesses, or
(b) handed over to a witness merely to refresh his memory.
2. New facts must be specially pleaded.--
The defendant must raise by his pleading all matters which show the suit not be maintainable, or that the transaction is either void or voidable in point of law, and all such grounds of defence as, if not raised, would be likely to take the opposite party by surprise, or would raise issues of fact not arising out of the plaint, as, for instance, fraud, limitation, release, payment, performance, or facts showing illegality.
3. Denial to be specific.-- It shall not be sufficient for a defendant in his written statement to deny generally the grounds alleged by the plaintiff, but the defendant must deal specifically with each allegation of fact of which he does not admit the truth, except damages.
*SPECIAL AMENDMENT 13 Commercial dispute of a Specified Value.-
In its application to any suit in respect of a commercial dispute of a Specified Value, in Order VIII, after rule 3, insert the following rule, namely,: -
3A. Denial by the defendant in suits before the Commercial Division of the High Court or the Commercial Court.-- (1) Denial shall be in the manner provided in sub-rules (2), (3), (4) and (5) of this Rule.
(2) The defendant in his written statement shall state which of the allegations in the particulars of plaint he denies, which allegations he is unable to admit or deny, but which he requires the plaintiff to prove, and which allegations he admits.
(3) Where the defendant denies an allegation of fact in a plaint, he must state his reasons for doing so and if he intends to put forward a different version of events from that given by the plaintiff, he must state his own version.
(4) If the defendant disputes the jurisdiction of the Court he must state the reasons for doing so, and if he is able, give his own statement as to which Court ought to have jurisdiction.
(5) If the defendant disputes the plaintiff's valuation of the suit, he must state his reasons for doing so, and if he is able, give his own statement of the value of the suit.
4. Evasive-denial.-- Where a defendant denies an allegation of fact in the plaint, he must not do so evasively, but answer the point of substance. Thus, if it is alleged that he received a certain sum of money, it shall not be sufficient to deny that he received that particular amount, but he must deny that he received that sum or any part thereof, or else set out how much he received. And if an allegation is made with diverse 14 circumstances, it shall not be sufficient to deny it along with those circumstances.
5. Specific denial.-- (1) Every allegation of fact in the plaint, if not denied specifically or by necessary implication, or stated to be not admitted in the pleading of the defendant, shall be taken to be admitted except as against a person under disability:
Provided that the Court may in its discretion require any fact so admitted to be proved otherwise than by such admission:
*SPECIAL AMENDMENT Commercial dispute of a Specified Value.- In its application to any suit in respect of a commercial dispute of a Specified Value, in Order VIII, in sub-rule (1), after the first proviso, insert the following proviso, namely, : -
"Provided further that every allegation of fact in the plaint, if not denied in the manner provided under Rule 3A of this Order, shall be taken to be admitted except as against a person under disability".
(2) Where the defendant has not filed a pleading, it shall be lawful for the court to pronounce judgment on the basis of the facts contained in the plaint, except as against a person under a disability, but the Court may, in its discretion, require any such fact to be proved.
(3) In exercising its discretion under the proviso to sub-rule (1) or under sub-rule (2), the Court shall have due regard to the fact whether the defendant could have, or has, engaged a pleader.
(4) Whenever a judgment is pronounced under this rule, a decree shall be drawn up in accordance with such judgment and such decree shall bear the date on which the judgment was pronounced.15
6. Particulars of set-off to be given in written statement.-- (1) Where in a suit for the recovery of money the defendant claims to set-off against the plaintiff's demand any ascertained sum of money legally recoverable by him from the plaintiff, not exceeding the pecuniary limits of the jurisdiction of the Court, and both parties fill the same character as they fill in the plaintiff's suit, the defendant may, at the first hearing of the suit, but not afterwards unless permitted by the Court, presents a written statement containing the particulars of the debt sought to be set-off.
(2) Effect of set-off.--The written statement shall have the same effect as a plaint in a cross- suit so as to enable the court to pronounce a final judgment in respect both of the original claim and of the set-off: but this shall not affect the lien, upon the amount decreed, of any pleader in respect of the costs payable to him under the decree.
(3) The rules relating to a written statement by a defendant apply to a written statement in answer to a claim of set-off.
6A. Counter-claim by defendant.--(1) A defendant in a suit may, in addition to his right of pleading a set-off under rule 6, set up, by way of counter-claim against the claim of the plaintiff, any right or claim in respect of a cause of action accruing to the defendant against the plaintiff either before or after the filing of the suit but before the defendant has delivered his defence or before the time limited for delivering his defence has expired, whether such counter-claim is in the nature of a claim for damages or not: Provided that such counter-claim shall not exceed the pecuniary limits of the jurisdiction of the court.
(2) Such counter-claim shall have the same effect as a cross-suit so as to enable the Court to pronounce a final judgment in the same suit, both on the original claim and on the counter-claim. 16
(3) The plaintiff shall be at liberty to file a written statement in answer to the counter-claim of the defendant within such period as may be fixed by the court.
(4) The counter-claim shall be treated as a plaint and governed by the rules applicable to plaints.
6B. Counter-claim to be stated.-- Where any defendant seeks to rely upon any ground as supporting a right of counter-claim, he shall, in his written statement, state specifically that he does so by way of counter-claim.
6C. Exclusion of counter-claim.--Where a defendant sets up a counter-claim and the plaintiff contends that the claim thereby raised ought not to be disposed of by way of counter-claim but in an independent suit, the plaintiff may, at any time before issues are settled in relation to the counter- claim, apply to the Court for an order that such counter-claim may be excluded, and the Court may, on the hearing of such application make such order as it thinks fit.
6D. Effect of discontinuance of suit.-- If in any case in which the defendant sets up a counterclaim, the suit of the plaintiff is stayed, discontinued or dismissed, the counter-claim may nevertheless be proceeded with.
6E. Default of plaintiff to reply to counter-claim.-- If the plaintiff makes default in putting in a reply to the counter-claim made by the defendant, the Court may pronounce judgment against the plaintiff in relation to the counter-claim made against him, or make such order in relation to the counter-claim as it thinks fit.
6F. Relief to defendant where counter-
claim succeeds.--Where in any suit a set-off or counterclaim is established as a defence against 17 the plaintiff's claim and any balance is found due to the plaintiff or the defendant, as the case may be the Court may give judgment to the party entitled to such balance.
6G. Rules relating to written statement to apply.--The rules relating to a written statement by a defendant shall apply to a written statement filed in answer to a counter-claim.
7. Defence or set-off founded upon separate grounds.--Where the defendant relies upon several distinct grounds of defence or set-off (or counter-claim) founded upon separate and distinct facts, they shall be stated, as far as may be, separately and distinctly.
8. New ground of defence.-- Any ground of defence which has arisen after the institution of the suit or the presentation of a written statement claiming a set-off [or counter-claim] may be raised by the defendant or plaintiff, as the case may be, in his written statement.
8A. Duty of defendant to produce documents upon which relief is claimed by him - Rep. by the Code of Civil Procedure (Amendment) Act, 1999 (46 of 1999), sec. 18 (w.e.f. 1-7-2002).]
9. Subsequent pleadings.-- No pleading subsequent to the written statement of a defendant other than by way of defence to set-off or counter- claim shall be presented except by the leave of the Court and upon such terms as the Court thinks fit; but the Court may at any time require a written statement or additional written statement from any of the parties and fix a time of not more than thirty days for presenting the same.
10. Procedure when party fails to present written statement called for by Court.--Where any party from whom a written statement is 18 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 the pronouncement of such judgment a decree shall be drawn up.
*SPECIAL AMENDMENT Commercial dispute of a Specified Value.-
In its application to any suit in respect of a commercial dispute of a Specified Value, in Order VIII, in rule 10 [***] insert the following proviso, namely, : -
[Provided that] no Court shall make an order to extend the time provided under Rule 1 of this Order for filing of the written statement.]"
29. The plaintiffs have received the written statement along with its counter claim on 18th July, 2023 and this application for leave to file additional written statement to the counter claim has been filed on 15th March, 2024.
30. The plaintiffs raised the point that as per Order VIII, Rule 9 reads with Order VIII, Rule 10, proviso of the Code of Civil Procedure, 1908, there is no time fixed for filing of additional written statement to the counter claim and the same can be filed upon taking leave from the Court and it is the duty of the Court to fix a time for filing additional written statement. It is the case of the plaintiffs that the Special Amendment in the proviso of Order VIII, Rule 10 of the Code specifies only Order VIII, Rule 1 of the CPC and Order VIII, Rule 9 has been specifically "left out"
from the proviso of Order VIII, Rule 10, thus the outer time of 120 days 19 for filing additional written statement to the counter claim is not applicable. To buttress their submissions, the plaintiffs relied upon the judgment in the case of Nasima Naqi (Supra) wherein the Hon'ble Division Bench of this Court held that "Whatever has been not included has by implication been excluded by the legislation". The said order carried in SLP and the Hon'ble Supreme Court upheld the order passed by the Hon'ble Division Bench in the case of Nasima Naqi (Supra) reported in 2019 SCC OnLine SC 1601.
31. The plaintiffs also relied upon Order VIII, Rule 6A (3) of the Code of Civil Procedure, 1908, wherein it is provided that the plaintiff shall be at liberty to file written statement in answer to the counter claim of the defendant within such period as may be fixed by the Court. The contention of the plaintiffs that in the present case though is that this Court allowed the defendants to file written statement in the department and to serve copy of written statement to the plaintiffs and on 18th July, 2023, the defendants served copy of written statement along with counter claim but no time fixed by this Court to file additional written statement to the counter claim and thus the plaintiffs has filed the present application seeking leave to file additional written statement. Plaintiffs have relied upon the judgment in the case of Barthels & Luders Gambh Vs. M.V. Dominique reported in 1987 SCC OnLine Bom 333 wherein the Bombay High Court held that:
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"6. Under Order 8, Rule 6A of the Code of Civil Procedure a defendant in a suit may set up by way of counter-claim against the claim of the plaintiff, any right or claim in respect of a cause of action accruing to the defendant against the plaintiff either before or after the filing of the suit but before the defendant has delivered his defence or before the time limited for delivering his defence has expired, whether such counter-claim is in the nature of a claim for damages or not. The proviso sets out that such counter-claim shall not exceed the pecuniary limits of the jurisdiction of the Court. Under Order 8, Rule 6A, therefore, once a suit has been filed the defendant can set up by way of counter-claim any right or claim against the plaintiff which arises before the defendant has delivered his defence or before the time limited for delivering his defence has expired. This counter-claim may be a claim in the nature of damages also. The only restriction as set out in the proviso is that the counter-claim shall not exceed the pecuniary limits of the jurisdiction of the Court. There is no restriction regarding territorial jurisdiction of the Court. This is because the suit and the counter- claim are in many ways not two independent proceedings but a united proceeding. Although Order 8, Rule 6A provides that the counter-claim is to be treated as a plaint and is to be governed by the rules applicable to plaints, it is not to be treated as a completely separate suit. In fact under Order 8, Rule 6A, sub-rule (2) the counter-claim is to be treated as a cross-suit so as to enable the Court to pronounce a final judgment in the same suit, both on the original claim and on the counter-claim, so that both the proceedings can be disposed of by a common judgment."
32. The Rajasthan High Court in the case of Nirottam Sharma Vs. Ramkishore & Anr. reported in 2019 (1) RLW 844 (Raj) dealt with the similar question and held that:
"7. In the light of the provisions if we look to the facts of the case then the default as mentioned in Rule 6E above would apply only when time has been laid down by the Court to file reply. The default would not be with regard to seeking time to 21 file reply, but would occur where time has been granted by the Court and the plaintiff does not file his reply within that time. Thus, the action of granting time by the Court precedes the role of the plaintiff to file reply.
8. As in the present case, Court has not given time to plaintiff file reply to the counter claim and therefore, it cannot be said that the default would lie on the part of the plaintiff, when the plaintiff moved an application praying for allowing him to file reply to the counter-claim. The Court was duly bound to give time to the plaintiff in terms of Order 6A (3) and if within that time the plaintiff would not have filed his reply, Order 8 Rule 6(E), would have come into operation. The view is supported by the judgment of Bisarti Bal v. Ratnawali of MP High Court as cited by learned counsel for the petitioner. The Court has observed as under:--
"(5) To consider the rival condition of the parties in this case, factual position is not disputed. The appellants filed a counter claim/cross suit under Order 8 Rule 6-A CPC.
This counter claim requires Court fee and until and unless Court fee is paid, counter claim itself was defective. The trial Court after filing of the written statement has not extended any opportunity to file written statement to counter claim as required under Rule 6-G of Order 8 CPC which was mandatory requirement under the law after entertaining the counter claim in the matter. As soon as counter claim was entertained after payment of the court fee, the trial Court ought to have extended such opportunity to the plaintiff/respondent to file written statement. But such opportunity was not allowed to the plaintiff/respondent. In these circumstances, trial Court committed gross error in not extending such opportunity to the plaintiff/respondent which has been rectified by the appellate Court. Now plaintiff/respondent shall get an opportunity to file reply to the counter claim. On the basis of pleadings, trial Court has to frame issues, if necessary, and thereafter extending opportunity to the parties to lead evidence, has to decide the case afresh."
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33. Bombay High Court in the case of Mrs. Shalini Nunes Mascarnehas and Ors. Vs. Mr. Trevor Nunes and Another in Writ Petition No. 659 of 2008 unreported judgement dated 17th December, 2008, held that:
"7. Having considered the submissions made by the learned Counsel for the respondent and having perused the record, I find that the impugned order is liable to be set aside, Ms. Kantak is justified in placing reliance on Order VIII, Rule 6A (3), in support of her submission that the written statement to the counter- claim, is not governed by Order VIII Rule 1 of C.P.C., but it is governed by Order VIII Rule 6A (3) of C.P.C. In terms of the said sub rule, the trial Court is expected to fix time for filing the written statement to the counter-claim. The necessary conclusion therefore, is that Order VIII, Rule 1 of C.P.C., is not applicable to the written statement filed by the plaintiffs to the counter-claim filed by the detendants. In the present case, the learned Judge directed filing of the written statement within period of limitation without specifying the time. In this factual background, I am of the considered opinion that it would be in the interest of justice to take written statement filed by the petitioners on record. Accordingly, the impugned Order refusing to take written statement on record, is quashed and set aside, subject to the petitioners paying costs of Rs.1,000/- to the respondents. The Costs shall be deposited in the trial Court within a period of three weeks. The trial Court shall take on record the written statement filed by the petitioners and proceed to dispose of the suit in accordance with law."
34. Similar question arose before the Madras High Court in the case of M/s. CSCO LLC & Ors. Vs. M/s. Lakshmi Saraswathi Spintex Limited & Others, wherein the Madras High Court held that: 23
"25. In view of the above discussion, this Court holds that the Proviso to Order VIII Rule 1 of Code of Civil Procedure, which fixes the maximum period for filling the written statement as 120 days and which was held to be mandatory by the Hon'ble Supreme Court in SCG Contracts India Pvt. Ltd. Vs. K.S. Chamankar Infrastructure Pvt. Ltd. and Ors., reported in 2019 (2) CTC 294, beyond which the right to file the written statement will stand forfeited, will not apply to a written statement filed by the plaintiffs for the counter claim made by the defendants and such cases will be governed only by the time period fixed by the Court under Order VIII Rule 6A (3) of CPC. This Court hastens to add that while fixing the time limits, appropriate Orders must be passed as indicated supra and the outer limit of 120 days fixed for the defendants, must be kept in mind."
35. Learned Judge of the Madras High Court while dealing with the similar issue in the case of Maria Albert Stanly vs. Diamond Hospital Equipments, noticed that a contrary view is taken by another Learned Judge in the case of M/s. CSCO LLC and Anr. vs. M/s. Lakshmi Saraswathi Spintex Limited and Ors., had referred the issues to the larger Bench. The Larger Bench (Division Bench) of the Madras High Court has answered the following question:
"Whether the outer time limit of 120 days for filing of Written Statement by a Defendant in a suit arising out of Commercial dispute would also apply to filing of Written Statement by a plaintiff in response to a Counter-Claim made by a Defendant in such Suit?
10. Now coming back to the reference made, it must be pointed out here that a Defendant may raise a Counter-Claim either in the Written Statement itself or may file a separate pleading for it. However, in both situations, a Plaintiff is 24 entitled, as of right, to answer the Counter-Claim by filing his Written Statement for it. As a corollary in compliance of the principles of natural justice, it would follow that when a Defendant makes a Counter-Claim and the Commercial Court takes it on file after scrutiny, a Plaintiff has to be put on notice so as to file his Written Statement for it.
11. Having due regard to the aforesaid germane aspects of the matter, it must be held that by operation of Rule 6-G of Order VIII of CPC read with Sections 15(3) and (4) and 16(3) of the CC Act and the other provisions of CPC as amended by the CC Act as noticed in the decision of the Hon'ble Supreme Court of India in SCG Contracts (India) Private Limited -vs- K.S. Chamankar Infrastructure Private Limited [(2019) 12 SCC 210], a Plaintiff ]on receipt of copy of the Counter- Claim made by a Defendant is entitled to file his Written Statement in response within 30 days, Mason and if it is filed after the said period, but before the expiry of 90 days thereafter (aggregating to 120 days on the whole), the Commercial Court on satisfactory explanation from the Plaintiff in an application is empowered to condone such delay, but such right to file Written Statement shall axiomatically stand forfeited thereafter
14. In view of the aforesaid conclusions arrived, it is not possible to concur with the ruling of the Learned Judge of this Court in M/s. CSCO LLC -vs- M/s. Lakshmi Saraswathi Spintex Limited (Order dated 28.01.2022 in A. No. 4791 of 2021 in C.S. No. 697 of 2017), insofar as it holds that the dictum laid down by the Hon'ble Supreme Court of India in SCG Contracts (India) Private Limited -vs- K.S. Chamankar Infrastructure Private Limited [(2019) 12 SCC 210] will not apply to a Written Statement filed by a Plaintiff in response to a Counter-Claim made by a Defendant, as it does not reflect the correct position of law, particularly when Rule 6-G of Order VIII of CPC has not been taken into account."25
36. The plaintiffs also relied upon Chapter IX, Rule 12A of the Original Side Rules of this Court and raised contention that there is no embargo on the plaintiff to file additional written statement to the counter claim beyond the period of 120 days. Chapter IX, Rule 12A reads as follows:
"12A. The plaintiff shall be entitled to file a Written Statement in answer to the counter claim within 10 days from the date of receipt of the notice of the filing of the counter claim or within such further time as may be allowed. Rules relating to written statement filed by the defendant shall apply to the written statement to be filed by the plaintiff in answer to the counter claim."
37. Chapter IX, Rule 12 of the Original Side Rules reads as follows:
"12. A defendant making a counter claim under order 8 of the Civil Procedure Code shall give notice of the filing of his Written Statement making a counter claim to the plaintiff and to any other defendant who has entered appearance within a week from the date of entering such appearance. Such counter claim shall be treated as a plaint and be governed by the rules applicable to plaints."
38. Order VIII, Rule 9, applies only on pleadings subsequent to filing of written statement, Order VIII, Rule 9 of the Code of Civil Procedure, 1908, does not apply to reply statement. As per Order VIII, Rule 9, of the Code of Civil Procedure, 1908, both plaintiff and defendant cannot file any pleading after written statement has been filed except with the leave of the Court and upon such terms as the Court thinks fit. The Court may any time require a written statement or additional written statement from any of the parties and fix a time not more than thirty days for presenting the same.
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39. Under the Code of Civil Procedure, 1908, reply statement to a counter claim or set off in the written statement of the defendant, there is a special provision. Filing of reply statement governed by Order VIII, Rule 6A to 6G of the Code of Civil Procedure, 1908. Rule 6A to 6G of Order VIII of the Code of Civil Procedure, 1908, has not been amended for the purpose of Commercial Disputes.
40. Under Rule 6A(3) of Order VIII of the Code of Civil Procedure, 1908, the plaintiff is at liberty to file written statement in answer to the counter claim of the defendant within such period as may be fixed.
41. If, Order VIII, Rule 6A (3) of the Code of Civil Procedure, 1908, is applied, there is no time limit for filing reply statement. The Court can fix the period. As per Rule 6G of Order VIII of the Code of Civil Procedure, 1908, the Rules relating to a written statement to be filed in answer to a counter claim.
42. As per Rule 12A of the Original Side Rules of this Court, plaintiffs shall be entitled to file written statement in answer to the counter claim within 10 days from the date of receipt of the notice of filing counter claim or such further time as may be allowed. Written Statement along with counter claim filed by the defendants is admitted by the learned Master of this Court 13th July, 2023 and the plaintiffs have received written statement along with counter claim on 18th July, 2023. In any of the provisions of Order VIII of the Code of Civil Procedure, 1908, no specific time period is fixed for filing written statement to the counter 27 claim. Under Rule 6A(3) of Order VIII, given liberty to the plaintiff to file written statement to the counter claim within such time as may be fixed by this Court. Rule 6G provides that the Rules relating to a written statement by a defendant shall apply to a written statement filed in answer to a counter claim.
43. Section 15(3), 15(4) and Section 16(3) of the Commercial Courts Act, 2015, reads as follows:
"15. Transfer of pending cases.-- (3) Where any suit or application, including an application under the Arbitration and Conciliation Act, 1996 (26 of 1996), relating to a commercial dispute of Specified Value shall stand transferred to the Commercial Division or Commercial Court under sub-section (1) or sub- section (2), the provisions of this Act shall apply to those procedures that were not complete at the time of transfer.
(4) The Commercial Division or Commercial Court, as the case may be, may hold case management hearings in respect of such transferred suit or application in order to prescribe new timelines or issue such further directions as may be necessary for a speedy and efficacious disposal of such suit or application in accordance [with Order XV-A] of the Code of Civil Procedure, 1908 (5 of 1908):
Provided that the proviso to sub-rule (1) of Rule 1 of Order V of the Code of Civil Procedure, 1908 (5 of 1908) shall not apply to such transferred suit or application and the court may, in its discretion, prescribe a new time period within which the written statement shall be filed
16. Amendments to the Code of Civil Procedure, 1908 in its application to commercial disputes.-- (3) Where any provision of any Rule of the jurisdictional High Court or any amendment to the Code of Civil Procedure, 1908 (5 of 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 28 the Code of Civil Procedure as amended by this Act shall prevail."
44. Under the Commercial Courts Act, 2015 read with the provisions of the Code of Civil Procedure, 1908, it is clear that a counter claim is governed by the same Rule as applicable to plaint. In commercial suit, in view of the provisions of Order VIII, Rule 1 of the Code of Civil Procedure, 1908 and Order VIII, Rule 10 of the Code of Civil Procedure, 1908, the Court cannot make an order extending time for filing of the written statement. This is also clearly settled by the judgement of the Hon'ble Supreme Court in SCG Contracts India Pvt. Ltd. (Supra).
45. The Hon'ble Division Bench of Madras High Court has also held that the Judgment in the case of SCG Contracts (India) Private Limited vs. K.S. Chamankar Infrastructure Private Limited reported in (2019) 12 SCC 210 will also apply to a written statement filed by a plaintiff to the counter claim by taking into consideration of Rule 6G of Order VIII of the Civil Procedure Code, 1908.
46. Considering the above, this Court finds that the written statement along with counter claim filed by the defendants was admitted on 13th July, 2023 and on 18th July, 2023, the advocate-on-record of the plaintiffs has received the copy of written statement with counter claim but failed to file written statement to the counter claim and after the period of 238 days i.e on 15th March, 2024 filed the present application. 29
47. In view of the above, G.A (COM) No. 4 of 2024 is dismissed.
(Krishna Rao, J.)