[Order 8 Rule 1 CPC ] Time Limit To File Written Statement : Mandatory Or Directory

A. The Ninety Day Limit is Directory: A catena of judgements by the Hon'ble Supreme Court of India, interpreting Order 8 Rule 1 of the Code of Civil Procedure, 1908 ("CPC"), had settled the position that the requirement to file a Written Statement within 30 days (extendable to 90 days) of receipt of summons is directory and not a mandatory requirement. As a result, litigators have long used the language used of the twin decisions of the Supreme Court of India (Kailash v. Nankhu (2005) 4 SCC 480 ("Kailash") and Salem Advocates Bar Association, T.N. v. Union of India (2005) 6 SCC 344 ("Salem Advocates")), i.e. that procedural law is the handmaid of justice and not its mistress. These decisions were particularly useful when filing applications to condone a delay in filing Written Statements beyond the outer limit of 90 days set out in the CPC. In those two decisions, the Supreme Court has held that the extendable period of 90 days within which to file a Written Statement does not carry any penal consequences. Further, it held that Order 8 Rule 1, CPC should not be interpreted to mean that in no event whatsoever can a Written Statement not be taken on record beyond the extendable time period of 90 days from receipt of summons. Accordingly, in both Kailash and Salem Advocates, it has been held that Order 8 Rule 1, CPC, being in the domain of procedural law, is directory and not mandatory. Of course, in both Kailash and Salem Advocates, the Supreme Court was careful to add that a decision to condone delay beyond the 90 day period is not to be passed in a routine manner and that such discretion is to be exercised by the Court only in exceptionally hard cases. Subsequently in Atcom Technologies Pvt. Ltd. v. Y.A. Chunawala (2018) 6 SCC 639 ("Atcom") the Supreme Court again reiterated its findings in Kailash and Salem Advocates. Further, in Atcom, the Supreme Court reiterated its prior holding that when seeking condonation of delay beyond the 90 day period set out in Order 8 Rule 1, CPC the Defendant is required to furnish a proper and satisfactory explanation. It was further held in Atcom that merely because Order 8 Rule 1, CPC is directory does not mean that a Defendant can take as much time as desired or is absolved from giving convincing and cogent reasons for the delay beyond 90 days. A decision to condone delay beyond the 90 day extendable period is not to be granted in a mechanical fashion merely because of the earlier decisions that Order 8 Rule 1, CPC is directory and not mandatory. A contradiction can be drawn here, between the decisions of the Supreme Court in Kailash, Salem Advocates and Atcom, and the decision in Union of India v. Popular Construction Co. (2001) 8 SCC 470 ("Popular Constructions"). In Popular Constructions, the effect of the use of the words "but not thereafter" in relation to the time limit for filing an appeal against an Arbitral Award was in question. The Supreme Court came to hold that use of the words "but not thereafter" in the proviso to Section 34(3) of the Arbitration and Conciliation Act, 1996 ("Arbitration Act") amounted to an express exclusion within the meaning of Section 29(2) of the Limitation Act, 1963 ("Limitation Act") and would bar the application of Section 4 of the Limitation Act. As such, it was held that a Court could not entertain an application to set aside an award beyond the extendable period provided in the proviso to Section 34(3) of the Arbitration Act. It was held that any other interpretation would render the words "but not thereafter" in the said provision otiose. B. Effect of the Commercial Courts Act: In 2015, the Commercial Courts, Commercial Division and Commercial Appellate Division of High Courts Act, 2015 ("Commercial Courts Act") was brought in to force. By way of Section 16, the Commercial Courts Act amended various portions of the CPC in a legislative attempt to bring about a more efficacious and speedy resolution to matters which fall in to the category of "Commercial Disputes" - as defined in Section 2(c) of the Commercial Courts Act. Pertinently, in terms of Section 21 of the Commercial Courts Act its provisions shall have effect notwithstanding anything inconsistent therewith contained in any other law for the time being in force. This non-obstante clause is of particular importance when considering the amendments made to Order 8 Rules 1 & 10, CPC. By way of the Commercial Courts Act, certain amendments were made and provisos were inserted as a result of which the period for filing of a Written Statement in Commercial Disputes, in terms of Order 8 Rule 1, CPC, was extended from 90 days to a maximum of 120 days from receipt of summons. However, in case a Written Statement is not filed within 120 days of receipt of summons, the Defendant shall forfeit the right to file its Written Statement and the Court is ...

[Order 8 Rule 1 CPC ] Time Limit To File Written Statement : Mandatory Or Directory

Gurpreet Singh Kahlon

Does Desh Raj v. Balkishan clarify whether the time limit to file Written Statement is Mandatory or Directory?

Tags