Summons Must Specify Defendant Is Required To File Written Statement In Commercial Suit Within 30 Days: Delhi High Court To Civil Courts

“The Registrar of this Court is directed to transmit copies of this order to the learned District & Sessions Judge (HQ) as well as District & Sessions Judge of all other districts in order to pass necessary orders to make the endorsement as stipulated in Para 35 of this judgment a mandatory part of the summons to be issued under Order V Rule 5 CPC, 1908 in cases pertaining to Commercial Suits as a necessary requirement," Justice Tushar Rao Gedela said.

The court said the service of summons is a very important procedural and there cannot be any laxity insofar as commercial suits are concerned.

Observing that the 30-days period for filing a written statement would commence on and from the date of service of summons, the bench, however, said that failure of the trial court to issue summons to defendant under Rule 5 of Order V of the Code of Civil Procedure, 1908 (CPC), cannot be detrimental to the rights provided to the defendant.

The high court passed these directions while dealing with a petition filed by Machine Tools Aids India, which was a defendant in the recovery suit instituted before the trial court. It challenged the trial court’s order where its application under Order VIII Rule 1 had been dismissed, foreclosing its right to file the written statement; while allowing the application under Order VIII Rule 10 filed by the M/s GNC Infra LLP.

Justice Gedela observed that the trial court had never passed orders issuing summons to Machine Tools Aids. In the absence of issuance of valid summons, it cannot be assumed that Machine Tools Aids India had the knowledge of the obligation to file the written statement within a period of 30 days from the date of the service of summons, the bench said.

Machine Tools Aids argued before the high court that the trial court had neither issued any notice to it nor ordered filing of any process. It added that service of summons is a sacrosanct procedure and that the failure of such service cannot be detrimental to the defendant.

The petitioner submitted that despite repeated requests, the complete copy of the plaint along with the annexures were never furnished to it or its counsel. Thus, the petitioner was constrained to inspect the judicial file, where it was revealed that order of issuance of process had not been issued by the trial court.

Machine Tools Aids also argued that after the trial court in its Order dated 20.09.2022, had given it 5 days’ time to file the written statement and a reply to the application under Order VIII Rule 10 CPC filed by M/s GNC Infra LLP, the same were filed by it on 24.09.2022. Thus, the written statement was filed within the limitation period, it contended.

GNC Infra argued that on many dates the counsel for Machine Tools Aids appeared but he still did not choose to file any written statement. Thus, it contended that it moved an application under Order VIII Rule 10 r/w with Section 151 CPC seeking foreclosure of Machine Tools Aids’ right to file the written statement and for pronouncement of judgment.

The Court noted that under the proviso to Rule 1 Order V, CPC, which is applicable to ordinary suits, the defendant is permitted to file a written statement beyond the 30 days period but within 90 days from the date of service of summons. However, the Court added that, “It is trite that this proviso has been held to be construed liberally and written statement even beyond 90 days period has been directed to be taken on record, for justifiable reasons”.

The bench, however, added that the second proviso to Rule 1 Order V, as amended by the Commercial Courts Act and made applicable to the commercial suits, is restrictive in nature as compared to the first proviso which is applicable to the ordinary suits.

The Court reckoned that as per Order VIII Rule 1 of the CPC, as amended by the Commercial Courts Act, the defendant is required to file his written statement within a period of 30 days. However, the court may allow the defendant to file his written statement beyond the 30 days period but within 120 days “from the date of service of summons”.

Referring to the Proviso to Order VIII Rule 1 CPC, as amended by the Commercial Courts Act, the Court said, “the proviso is couched in a negative language and stipulates that the right to file written statement beyond 120 days by the defendant is automatically extinguished by operation of law”.

“There is no manner of doubt, as stipulated in proviso to Rule 1 of Order V and Rule 1 of Order VIII CPC, that the 30 days period would commence on and from the date of service of summons containing a stipulation that it is obligatory on the part of the defendant to file his written statement, which would be a necessary concomitant to construe if any default in filing the written statement has occasioned," said the court.

Thus, the bench concluded that it is imperative to direct the Civil Courts adjudicating commercial suits, to stipulate in its summons that it is obligatory on the part of the defendant to file his written statement within 30 days from the date of service/receipt of summons.

While taking note of the fact that the trial court upon perusal of its own record in the case filed by GNC Infra LLP had concluded that summons under Rule 5 Order V CPC were never issued in accordance with the prescribed procedure, the bench held that failure to issue summons cannot be detrimental to the rights provided to Machine Tools Aids.

“Logically, since no such summons were ever issued, the question of not having filed the Written Statement within 30 days period or the extended period of 120 days does not arise and the liability cannot be fastened upon the petitioner," the court said.

In view of the maxim “Actus Curaie Neminem Gravabit” too, the impugned order is unsustainable in law, said the court.

“In the facts of the present case and keeping in view the aforesaid legal position, it is obvious that the failure to file written statement within the stipulated period or even the extended period cannot to be detrimental to the interest of the petitioner/defendant. It is trite that procedures are handmaid of justice and the provisions are to be construed accordingly," the court ruled.

Observing that the written statement was indeed filed by the Machine Tools aids within five days from the order passed by the trial court directing it to file the same, the high court set aside the trial court’s order where it had allowed the application under Order VIII Rule 10 and foreclosed the Machine Tools Aids’ right to file the written statement.

"As a sequiter, the written statement filed by the petitioner is directed to be taken on record with the further directions to the Trial Court to proceed in accordance with law and as per the provisions of Code of Civil Procedure, 1908 as amended by the Commercial Courts Act 2015," the court said.

Case Title: Machine Tools Aids India versus M/s. GNC Infra LLP & Anr.

Citation: 2023 LiveLaw (Del) 30

Counsel for the Petitioner: Mr. Jay Savla, Senior Advocate with Ms. Shilpi Chowdhary, Mr. R.C. Tiwari, Mr. Yogesh Sharma and Mr. Vikrant Choudhary, Advocates

Counsel for the Respondent: Mr. Alok Bhachawat, Advocate with Ms. Saloni Jagga, Advocate for R-1. Mr. Mohit Arora, Advocate for R-2.

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