PRAKASH CORPORATES versus DEE VEE PROJECTS LIMITED

[2022] 8 S.C.R. 889

PRAKASH CORPORATES

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.VIIIr.10 – Extension of time period for filing written statement in viewof the orders passed and issued in the wake of COVID-19 pandemic– On 21.12.2020 plaintiff-respondent instituted money suit againstappellant-defendant – On 22.06.2021, trial court refused the prayerof the appellant for extension of time for filing written statement byvirtue of O.VIII r.1 and held that appellant had forfeited its right tofile written statement – Held: By virtue of s.16 of Commercial CourtsAct, 2015, the Commercial Court is to follow the provisions of CPCas amended by the Act in the trial of suit in respect to Commercialdispute of Specified Value – The amended provisions containedin O.V r.1, O.VIII r.1, O.VIII r.10 state that defendant is to file writtenstatement within 30 days of service of summons – If he fails to doso, he may be allowed to file on other day by the Court, however, itcannot go beyond 120 days from the date of service of summons,otherwise right to file the written statement would be forfeited – Inthe instant case, the 120[th] day came to end on 06.05.2021, however,these provisions operate in normal and non-extraordinarycircumstances with the usual functioning of courts – In view ofCOVID-19 Pandemic, this Court provided in Suo Moto Writ Petitionthat 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 deniedin relation to the period prescribed for filing of written statement –Therefore, the time limit for filing the written statement by theappellant in the subject suit did not come to end on 06.05.2021 –Written statement notarized by the appellant on 07.01.2021 isordered to be taken on record – Commercial Courts Act, 2015.

890SUPREME COURT REPORTS

AAllowing the appeal, the Court

HELD: 1. By virtue of Section 16 thereof, the CommercialCourt is to follow the provisions of CPC as amended by the Actin the trial of suit in respect to Commercial dispute of aSpecified Value. Order V Rule 1, Order VIII Rule 1 and OrderBVIII Rule 10 CPC not only envisage strict timelines for filing ofwritten statement but even provide for consequences of default,while restricting the powers of the Court to extend the time forfiling written statement beyond the period prescribed. As perthe mandate of the said provisions: (a) the defendant is under anCobligation to file the written statement of his defence within 30days of service of summons; (b) if he fails to file the writtenstatement within the said period of 30 days, he may be allowed tofile the written statement on such other day as the Court mayspecify for reasons to be recorded in writing and on payment ofsuch costs as the Court may impose but this other day, in anyDcase, cannot go beyond 120 days from the date of service ofsummons; (c) on expiry of 120th day from the date of service ofsummons, the defendant forfeits the right to file the writtenstatement and no Court can make an order to extend such timebeyond 120 days from the date of service of summons. [Para 16]E[916-A-D]2. If the aforesaid provisions and explained principles areliterally and plainly applied to the facts of the present case, the120th day from the date of service of summons came to an endwith 06.05.2021 and the defendant, who had earlier been grantedFtime for filing its written statement on payment of costs, forfeitedsuch right with the end of 120[th] day, i.e., 06.05.2021. However,the provisions aforesaid and their interpretation in SCG Contractsoperate in normal and non-extraordinary circumstances with theusual functioning of Courts. The above referred provisions ofCPC are not the only provisions of law which lay down mandatoryGtimelines for particular proceedings. The relevant principles, intheir normal and ordinary operation, are that such statutorytimelines are of mandatory character with little, or rather no,discretion with the Adjudicating Authority for enlargement. [Para17][917-D-F]H

3. Having regard to the purpose for which this Court hadexercised the plenary powers under Article 142 of the Constitutionof India and issued necessary orders from time to time in SMWPNo. 3 of 2020, the period envisaged finally in the order dated23.09.2021 is required to be excluded in computing the period oflimitation even for filing the written statement and even in caseswhere the delay is otherwise not condonable. It gets perforcereiterated that the orders in SMWP No. 3 of 2020 were ofextraordinary measures in extraordinary circumstances and theiroperation cannot be curtailed with reference to the ordinaryoperation of law. [Para 20.1][921-C-E]

4. In other words, the orders passed by this Court on23.03.2020, 06.05.2020, 10.07.2020, 27.04.2021 and 23.09.2021in SMWP No. 3 of 2020 leave nothing to doubt that special andextraordinary measures were provided by this Court foradvancing the cause of justice in the wake of challenges thrownby the pandemic; and their applicability cannot be denied inrelation to the period prescribed for filing the written statement.It would be unrealistic and illogical to assume that while this Courthas provided for exclusion of period for institution of the suit andtherefore, suit otherwise filed beyond limitation (if the limitationhad expired between 15.03.2020 to 02.10.2021) could still befiled within 90 days from 03.10.2021 but the period for filingwritten statement, if expired during that period, has to operateagainst the defendant. Therefore, in view of the orders passedby this Court in SMWP No. 3 of 2020, the time limit for filing thewritten statement by the appellant in the subject suit did not cometo an end on 06.05.2021. [Paras 20.2, 20.3][921-E-H; 922-A]

New India Assurance Co. Ltd. v. Hill Multipurpose ColdStorage (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. 2020SCC OnLine SC 1050 – referred to.

ASagufa Ahmed and Ors. v. Upper Assam PolywoodProducts Private Limited and Ors. (2021) 2 SCC 3172020 (9) JT 429; S. Kasi v. State Criminal Appeal No.452 of 2020 decided on 19.06.2020, (2020) SCCOnLine SC 529 – held inapplicable.

BCase Law Reference

[2019] 3 SCR 1050

relied on Para 6.1

CIVIL APPELLATE JURISDICTION: Civil Appeal No. 1318

of 2022.

CFrom the Judgment and Order dated 09.07.2021 of the High Courtof 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, AngajGautam, Advs. for the Appellant.

DManish Kumar Singhvi, Sr. Adv., Ravi Bharuka, Rishabh Garg,Advs. for the Respondent.

The Judgment of the Court was delivered by

DINESH MAHESHWARI, J.

EContents

Preliminary.....................................................................................2*Relevant background aspects and proceedings in the suit....................3*Order of the Commercial Court dated 22.06.2021..............................8*

Operation and effect of the orders passed in SMWP No. 3of 2020.........................................................................................33*Implication and effect of the administrative order issuedby 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 orderdated 09.07.2021, as passed by the High Court of Chhattisgarh at Bilaspurin WP No. 312 of 2021, whereby the High Court has upheld the orderdated 22.06.2021, as passed by the Commercial Court (District Level),Nava Raipur, Chhattisgarh in Civil Suit No. 01-B of 2021, in decliningthe prayer of the defendant-appellant for granting further time to file itswritten statement. The prayer of the defendant-appellant came to bedeclined on the ground that in view of the proviso to Order VIII Rule 1of the Code of Civil Procedure, 1908[1], as substituted by the CommercialCourts Act, 2015[2], such right of the defendant to file the writtenstatement stood forfeited with expiry of 120 days from the date of serviceof summons.

2.1. The defendant-appellant has questioned the orders so passedby the Trial Court and by the High Court on various grounds, includingthose with reference to the orders passed by this Court in Suo MotuWrit Petition (Civil) No. 3 of 2020[3], for extension of the period of limitationprescribed under the general law of limitation or under any special law,in view of the challenges faced by the country and difficulties of thelitigants 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’sprayer for an opportunity to file its written statement, dilation on all thefactual aspects of the subject suit is not necessary and only briefreference 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.

CDE

A3.1. It appears from the plaint averments and other submissionsthat the parties to this litigation and their associated entities were havingbusiness dealings, particularly in relation to the public contract works.The present litigation relates to two such contract works: one being thework awarded by the Chhattisgarh Road Development CorporationLimited for “Construction of Two Laning with Hard Shoulder of Tara-BPremnagar-Ramanunjnagar Road Section in the State of Chhattisgarh”;and the other being the work awarded by the Public Works Departmentof the Government of Chhattisgarh for “Rehabilitation and Upgradationof NH 111 in the State of Chhattisgarh”. It appears that certain portionsof these works were sub-contracted by the plaintiff-respondent to theCdefendant-appellant under two work orders bearing Nos. DV/HW/03dated 01.04.2017 and DV/HW/08 dated 01.07.2017 respectively. Theremight be some divergence in the stand of the parties as to the manner ofawarding these contract works and as to the reasons for which certainportions of these works came to be sub-contracted to the appellant but,all those aspects are not of relevance for the present purpose.D

3.2. The litigation pertains to the monetary liabilities arising fromand under the sub-contracts awarded to the appellant. It appears thatthe appellant had raised various running account bills and the respondenthad made various running account payments but, each of the parties hasits own version of its claim against the other. It appears that on 01.07.2020,Ethe appellant sent demand notice to the respondent in terms of theInsolvency and Bankruptcy Code, 2016[4], demanding payment of analleged unpaid operational debt of Rs. 17,94,11,835/-. The respondentsent reply to the said notice on 13.07.2020, denying the claim so madeby the appellant and conversely making claim of Rs. 3,73,24,821/-Fagainst the appellant on account of excess payment.

3.3. It appears further from the submissions sought to be made inthis appeal that on 11.09.2020, the appellant approached the NationalCompany Law Tribunal, Cuttack Bench[5] seeking initiation of corporateinsolvency resolution process against the respondent under Section 9 ofGthe Code with the allegations that the respondent (corporate debtor) hadfailed to make payment of its unpaid operational debt. On the otherhand, on 21.12.2020, the plaintiff-respondent instituted the suit aforesaidagainst 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’.

Rs.3,73,24,821/- along with interest @ 12% p.a., allegedly being theexcess payment made to the appellant. The plaintiff-respondent alsofiled an application under Order XXXVIII Rule 5 read with Section 151CPC, seeking interim directions of attachment before judgment.

4. After glance at the background aspects as above, it would beworthwhile to take note of the relevant events pertaining to theproceedings in the suit so filed by the plaintiff-respondent, in their feasiblechronology.

4.1. In the said suit instituted on 21.12.2020, the plaintiff-respondent had also filed an application under Section 149 CPC, seekingtime for payment of court fees that was granted and the matter wastaken up on 01.01.2021. On that date, the Trial Court found that therequisite court fees had been paid and also referred to the submissionsmade on behalf of the respondent regarding urgency of matter in viewof the said application seeking interim directions under Order XXXVIIIRule 5 read with Section 151 CPC. Taking note of the submissions somade, the Court granted another application moved by the respondentfor dispensing with the requirements of pre-institution mediation in termsof Section 12-A of the Act; and issued summons to the defendant-appellant for appearance and filing of written statement as also reply tothe said interim application.

4.2. The defendant-appellant was served with summons in thesubject suit on 06.01.2021.

4.3. The appellant did appear before the Trial Court in responseto the said summons on the date fixed, i.e., 18.01.2021 but filed anapplication under Section 10 read with Section 151 CPC for stay of suitproceedings on the ground that the proceedings between the partieswere pending before the NCLT. The appellant also sought time to filereply to the said interim application. The Trial Court granted time to theparties to file replies to the respective applications and adjourned thematter to 02.02.2021.

4.4. On 02.02.2021, the appellant sought time for filing writtenstatement and reply to the interim application on the ground of illness ofthe partner of the firm. On the other hand, the respondent also soughttime for filing reply to the application moved on behalf of the appellantfor 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

Aapplications and also directed the appellant to file its written statementon the next date.

4.5. On 24.02.2021, while the respondent filed its reply to theapplication for stay of suit proceedings but, the appellant sought anotheropportunity to file the written statement because of non-availability ofBthe senior counsel. The respondent raised an objection but, the TrialCourt granted another opportunity on costs of Rs. 200/-; and the appellantwas directed file its written statement as also reply to the application forinterim directions positively by the next date.

4.6. On the next date, i.e., on 15.03.2021, though reply to theCapplication seeking interim directions was filed on behalf of the appellantbut, further time was sought for filing the written statement. It wassubmitted that assistance of Delhi-based Law Firm was being takenand the necessary documents had been sent to Delhi for drafting thewritten statement. In view of these submissions, the Trial Court grantedyet further time to the appellant for filing the written statement but, onDcosts of Rs. 500/-. The Trial Court adjourned the matter to 15.04.2021for arguments on both the above-noted applications, moved respectivelyby the appellant seeking stay of suit proceedings and by the respondentseeking attachment before judgment.4.7. In the ordinary and normal course, the matter would haveEproceeded for the slated purpose on 15.04.2021 but, in view of anadministrative order dated 05.04.2021 issued by the jurisdictional HighCourt for curtailed functioning of Courts as also in view of its ownadministrative order dated 07.04.2021, the Trial Court adjourned the matterto 22.06.2021, for arguments on both the applications. Indisputably, theFsaid administrative orders were issued under the force of circumstancescreated by the second wave of COVID-19 pandemic, when almost allthe institutions suffered set-backs with disruption of their normalfunctioning due to ailments, lock-downs and containment measures.

4.8. It would be apposite to notice at this juncture that in the ordinaryGoperation of the second proviso to Rule 1(1) of Order V and the provisoto Rule 1 of Order VIII CPC, as substituted by the Commercial CourtsAct, 2015, the appellant was required to file the written statement within30 days from the date of service of summons, i.e., within 30 days from06.01.2021. Further, the appellant could have been given time to file thewritten statement by 120[th] day from the date of service of summons, forH

reasons to be recorded in writing and on payment of such costs as deemedfit by the Trial Court but, upon expiry of 120 days from the date ofservice of summons, the right of the defendant-appellant to file the writtenstatement was to stand forfeited and the Court could not have allowedthe written statement to be taken on record. It is not in dispute that 120[th]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 theTrial Court took up the matter for consideration, another prayer foradjournment was made on behalf of the appellant for filing the writtenstatement with the submission that limitation had been extended by thisCourt in Suo Motu Writ Petition (Civil) No. 3 of 2020. This prayer wasopposed on behalf of the respondent with the submission that more than120 days had expired since service of summons. The Trial Court referredto the order-sheets of the case as also to the applicable proviso to OrderVIII Rule 1 CPC; and held that the appellant had forfeited its right to filethe written statement. The Trial Court, thereafter, adjourned the matterto 09.07.2021 for consideration of the aforesaid applications moved bythe parties.

5.1. This order dated 22.06.2021, being the bone of contention inthis 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 adjournmentfor submission of written statement on the ground that Hon’bleApex Court in Suo Moto case has extended the limitation. Theprayer is vehemently opposed by the counsel for the Plaintiff onthe ground that more than 120 days has expired since the serviceof summons on the defendants.

As per order-sheet of the present case, service of summonswas effected on the defendant by hand on 06.01.2021 and thedefendants firstly appeared before this Court on 18.01.2021. Thedefendants have moved an application under Section 10 of CPCon 18.01.2021 and filed reply of the application under Order 38Rule 5 on 15.03.2021.

The proviso of Order 8 Rule 1 of CPC as incorporated byCommercial Courts Act says that on expiry of 120 days fromdate of service of summons, the defendant shall forfeit the rightto file written statement and the Court shall not allow the writtenstatement to be taken on record.

Therefore, the defendant in this case has forfeited his right tosubmit written statement because more than 120 days have beenpassed after 06.01.2021 i.e. date of service of summons on thedefendants. Now the defendants are not permitted to submit writtenstatement in the case file.

CNow to come up on 09.07.2021 for consideration on applicationunder Order 38 Rule 5 CPC and on application under Section 10CPC.”

Impugned order dated 09.07.2021: the High Court declinesto interfereD6. Seeking to question the aforesaid order dated 22.06.2021, thedefendant-appellant preferred writ petition under Article 227 of theConstitution of India before the High Court.

6.1. It was essentially submitted on behalf of the appellant that on06.05.2021, the Court was closed due to imposition of lockdown inEpandemic control measures; and on 22.06.2021, the application was filedseeking time for filing written statement on medical ground as the counselfor the appellant was in quarantine. It was yet further submitted withreference to the orders passed by this Court in Suo Motu Writ Petition(Civil) No. 3 of 2020 that, while computing the period of limitationFprescribed under the general law or under special laws, the periodbetween 15.03.2020 to 14.03.2021 would stand excluded; and on27.04.2021, the suspension of limitation was further extended by thisCourt. Thus, it was contended that counting of limitation by the TrialCourt without taking into consideration the period of lockdown waserroneous. Reference was made to various decisions of this Court,Gincluding those in SCG Contracts (India) Private Limited v. K.S.Chamankar Infrastructure Private Limited and Ors.: (2019) 12SCC 210 and SS Group Pvt. Ltd. v. Aaditiya J. Garg and Anr.: 2020SCC OnLine SC 1050.

6.2. The petition so filed by the appellant was opposed on behalfHof the respondent with two-fold submissions. In the first place, it was

urged that the impugned order being an appealable one, the same couldnot have been challenged by way of petition under Article 227 of theConstitution of India. Then, with reference to the decision in SCGContracts(supra), it was submitted that the Commercial Court had nopower to extend the time beyond the period of 120 days. Further, adecision of this Court in the case of Sagufa Ahmed and Ors. v. UpperAssam Polywood Products Private Limited and Ors.: (2021) 2 SCC317 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 limitationand not for condonation of delay. It was contended that the time forfiling written statement was that of prescribed period and, being not amatter of limitation, was not covered under the order passed in SMWPNo. 3 of 2020.

6.3. After having heard learned counsel for the parties, the HighCourt held in the first place that the order passed in terms of Order VIIIRule 1 was not an appealable one under Order XLIII CPC and hence,the petition was indeed maintainable. However, as regards challenge tothe order passed by the Trial Court, the High Court referred to theaforesaid decisions in SCG Contracts and Sagufa Ahmed and heldthat the limitation provided in the enactment cannot be extended by anyCourt. The High Court also observed that the present one was not acase for condonation of delay as the written statement had not beenfiled at all. Thus, the High Court found no reason to consider interferenceand proceeded to dismiss the writ petition while observing as under: -“Taking into consideration the view settled by the Supreme Courtand the applicability of the order of Supreme Court in Suo-motoWrit (Civil) No. 03 of 2020, the glaring fact present in this case isthis, that the petitioners have till date not filed any written statement,the prescribed time for filing written statement and the time whichcan be extended by the Court both have expired. The case wasfixed for hearing on 22.06.2021 even on that date, the petitionerwas not ready and prepared to file the written statement, therefore,it appears to be case in which the petitioner is making prayerfor extension of limitation. No Court can grant any extension oflimitation against the provisions of the enactment under which thecase is being considered and heard. Further, it is not case ofcondonation of delay as the written statement is still not filed.Hence, I am of this view that the learned Commercial Court hasnot committed any error in rejecting the prayer made by the

Apetitioner for granting time to file written statement. Accordingly,no substance is found to be present in this petition, hence, thispetition 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 plaintiff-Brespondent has appeared in caveat. Having regard to the subject-matter,we have heard the learned counsel for parties finally at the admissionstage itself.

Rival Submissions

8. While assailing the order dated 09.07.2021 as passed by theCHigh Court and the order dated 22.06.2021 as passed by the Trial Court,learned senior counsel for the defendant-appellant has referred to therecord of proceedings in the subject suit as also various orders passed inSMWP No. 3 of 2020 by this Court; and has contended that in the givenset of peculiar circumstances, prayer of the appellant for granting timeDfor filing the written statement ought to have been granted.

9. The main plank of submissions of the learned senior counselfor the appellant has been that the impugned orders are flawed, beingcontrary to the mandate and directions of this Court in SMWP No. 3 of2020.E9.1. The learned counsel would submit that the subject suit itselfwas filed by the respondent at the time when the order dated 23.03.2020passed by this Court in SMWP No. 3 of 2020 was in operation; andsummons was also served on the appellant during that period. Withreference to various other orders passed in SMWP No. 3 of 2020, theFcontention has been that the entire period from 15.03.2020 until 02.10.2021stands excluded while computing the period of limitation and that,obviously, covers the prescribed period for filing written statement in thepresent case.

9.2. The learned senior counsel has contended that the intentionbehind the orders in SMWP No. 3 of 2020 had been to protect the litigantsGfrom complications stemming from the pandemic and to do away withthe need of explaining the individual circumstances in each and everycase; and no delay could be imputed in this matter on the appellantbecause, any such question of delay in filing the written statement wouldhave arisen only after expiry of the extended period of limitation, asHprovided by this Court in SMWP No. 3 of 2020.9.3. The learned senior counsel would also submit that the TrialCourt and the High Court have failed to consider the adversecircumstances faced by the appellant where, apart from the entire districtof Raipur having been declared containment zone and restriction/lockdown having been imposed in the month of April, 2021, the fact ofthe matter had been that the partners of the appellant firm as also theirfamily members suffered from COVID-19 and they were either inquarantine 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. Accordingto the learned counsel, in these trying and unfortunate times, when therigour of limitation period had been under eclipse pursuant to the ordersof this Court, the Trial Court and the High Court ought not to have closedthe right to file the written statement.

9.4. The learned counsel has also referred to the fact that as perits own administrative order dated 05.04.2021, the High Court ofChhattisgarh had provided for restricted functioning of the Courts, whereonly the matters of urgent nature were being taken up; and the suit inquestion was not falling under any of those categories. In this view ofthe matter too, it could not have been concluded that the right to file thewritten statement conclusively came to an end by the operation of statute.In other words, when such rigorous provisions in the statute were not infull operation, the right of filing the written statement could not havebeen taken as closed.

9.5. It has also been contended on behalf of the appellant that theTrial Court has erred in not taking up and deciding the application filedby the appellant under Section 10 CPC for stay of suit proceedingsbecause the proceedings as regards the subject-matter of the suit werealready pending before the NCLT. It has yet further been submitted thatthe appellant had got the written statement prepared and notarised on07.07.2021; and the same deserves to be taken on record.

10. While countering the submissions above-noted and whilesupporting the orders impugned, learned senior counsel for the plaintiff-respondent has contended, with all emphasis, that the appellant cannotclaim the extension of period of limitation by reference to the orderspassed in SMWP No. 3 of 2020, particularly when its right to file thewritten statement stands forfeited by operation of law.

A10.1. With elaborate reference to the record of proceedings ofthe subject suit, it has been submitted on behalf of the respondent thatthe appellant, despite having appeared on 18.01.2021, did not choose tofile the written statement within 30 days of service of summons, aspermissible by law; and twice over, sought further time to file the writtenstatement during the extendable period of 90 days; and the Trial CourtBindeed extended the time on 24.02.2021 and 15.03.2021. According tothe learned senior counsel for the respondent, the extendable period oflimitation for filing the written statement was available to the appellantuntil 06.05.2021 but not beyond. The learned counsel would submit thatin the given fact situation, the alleged notarised written statement datedC07.07.2021 had been well beyond the extendable period of 90 days andthus, no relaxation could be granted to the appellant when its right to filethe written statement stands forfeited.10.2. Learned senior counsel for the respondent would submitthat the orders passed in SMWP No. 3 of 2020 cannot be of any aid orDhelp to the appellant because no indefeasible right accrues to claim inthe discretionary extendable period to be determined by the Court. Thelearned counsel has emphasised on the submissions that in the orderspassed in SMWP No. 3 of 2020, the extension of period of limitationcommencing from 23.03.2020 to 02.10.2021 was for institution of suitsor applications; and even when Section 12-A of the Act was broughtEwithin the purview of the extension of limitation period, there was nodirection that the period to file the written statement before theCommercial Court would also be extended automatically, despite thedefendant appearing and participating in the proceedings. According tothe learned counsel, the defendant cannot take blanket immunity by notFfiling the written statement and then, seeking cover of the orders passedin 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 on19.06.2020 [(2020) SCC OnLine SC 529], it has been argued onbehalf of the respondent that 3-Judge Bench of this Court has specificallyGruled that the said order dated 23.03.2020 in SMWP No. 3 of 2020 is notapplicable to all the applications; and benefit of the order of extension oflimitation cannot be taken by police while filing chargesheet underSection167(2) of the Code of Criminal Procedure, 1973[6]. Further, with

H6 Hereinafter also referred to as ‘CrPC’.

reference to the decision in the case of Sagufa Ahmed (supra), it hasbeen argued that what was extended in SMWP No. 3 of 2020 was onlythe period of limitation and not the period upto which delay could becondoned in exercise of discretion conferred by the statute. The learnedcounsel would also submit with reference to the decision of this Court inSCG Contracts (supra) that where defendant fails to file the writtenstatement within permissible time, it is beyond the Court’s power tocondone the delay.

11. In his rejoinder submissions, the learned senior counsel for theappellant has contended that S. Kasi’s case (supra) related to thefundamental right of liberty, referable to Article 21 of the Constitution ofIndia read with Section 167(2) CrPC; and the observations of this Courtin the said case cannot operate in relation to the procedural law concerningcivil litigation and more particularly, in relation to the right of filing writtenstatement in civil suit. The learned counsel would further submit thatthe decision in the case of Sagufa Ahmed (supra) is of no application tothe present case because the observations therein came to be made inthe setup of the facts that time for filing the appeal had expired evenprior 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 submissionsand have examined the record with reference to the law applicable.

Relevant statutory provisions

13. The principal question calling for determination in this matteris as to whether the opportunity of filing written statement in the subjectsuit has rightly been declined or the appellant could be extended furtherrelaxation in view of the orders passed and issued in the wake of COVID-19 pandemic. However, before proceeding further, worthwhile it wouldbe to take note of the relevant provisions of law, particularly those dealingwith the right of filing written statement and default stipulations in thatregard, as applicable to the subject suit.

13.1. The suit in question answers to the description of‘Commercial dispute of Specified Value’ and in its regard, the relevantapplicable provisions of CPC are those as amended by the Schedule tothe Commercial Courts Act, 2015 read with Section 16 thereof. Section12-A of the Act has also come under reference in the orders passed inSMWP No. 3 of 2020. Thus, we may usefully reproduce Section 12-Aand Section 16 of the Act as under: -

A“12-A. Pre-Institution Mediation and Settlement. – (1) Asuit, which does not contemplate any urgent interim relief underthis Act, shall not be instituted unless the plaintiff exhausts theremedy of pre-institution mediation in accordance with suchmanner and procedure as may be prescribed by rules made bythe Central Government.B

(2) The Central Government may, by notification, authorise theAuthorities 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 inCits application to commercial disputes. – (1) The provisionsof the Code of Civil Procedure, 1908 (5 of 1908) shall, in theirapplication to any suit in respect of commercial dispute of aSpecified Value, stand amended in the manner as specified in theSchedule.

(2) The Commercial Division and Commercial Court shall followDthe provisions of the Code of Civil Procedure, 1908 (5 of 1908),as amended by this Act, in the trial of suit in respect of acommercial dispute of Specified Value.

(3) Where any provision of any Rule of the jurisdictional HighCourt or any amendment to the Code of Civil Procedure, 1908, byEthe State Government is in conflict with the provisions of the Codeof Civil Procedure, 1908 (5 of 1908), as amended by this Act, theprovisions of the Code of Civil Procedure as amended by this Actshall prevail.”

13.2. By virtue of sub-clauses A, D(i) and D(iv) of Clause 4 ofFthe Schedule to the Commercial Courts Act, 2015, respectively theprovisions of CPC in Order V Rule 1(1), Order VIII Rule 1 and OrderVIII Rule 10, concerning the time period within which written statementcould be filed as also the consequences of default, stand amended intheir application to the suit of present nature. While incorporating theseamendments, the applicable provisions of CPC would read as under[7]: -G

Order V Rule 1

“1. Summons. - (1) When suit has been duly instituted, asummons may be issued to the defendant to appear and answer

7 Note: The provisos marked with asterisk (*) are the amended provisions, as applicableHto Commercial dispute of Specified Value i.e., the suit tried by Commercial Court.

the claim and to file the written statement of his defence, if any,within thirty days from the date of service of summons on thatdefendant:

Provided that no such summons shall be issued when adefendant has appeared at the presentation of plaint and admittedthe plaintiff’s claim:

*Provided further that where the defendant fails to file thewritten statement within the said period of thirty days, he shall beallowed to file the written statement on such other day, as may bespecified by the Court, for reasons to be recorded in writing andon payment of such costs as the Court deems fit, but which shallnot be later than one hundred twenty days from the date of serviceof summons and on expiry of one hundred twenty days from thedate of service of summons, the defendant shall forfeit the rightto file the written statement and the Court shall not allow thewritten statement to be taken on record.

(2) defendant to whom summons has been issued undersub-rule (1) may appear:-

(a) in person, or

(b) by pleader duly instructed and able to answer all materialquestions relating to the suit, or

(c) by pleader accompanied by some person able to answerall such questions.

(3) Every such summons shall be signed by the Judge or suchofficer as he appoints, and shall be sealed with the seal of theCourt.”

Order VIII Rule 1

“1. Written statement.-The defendant shall, within thirty daysfrom the date of service of summons on him, present writtenstatement of his defence:

*Provided that where the defendant fails to file the writtenstatement within the said period of thirty days, he shall be allowedto file the written statement on such other day, as may be specifiedby the Court, for reasons to be recorded in writing and on paymentof such costs as the Court deems fit, but which shall not be later

Athan one hundred twenty days from the date of service of summonsand on expiry of one hundred twenty days from the date of serviceof summons, the defendant shall forfeit the right to file the writtenstatement and the Court shall not allow the written statement tobe taken on record.”

BOrder VIII Rule 10

“10. Procedure when party fails to present written statementcalled for by Court.- Where any party from whom writtenstatement is required under rule 1 or rule 9 fails to present thesame within the time permitted or fixed by the Court, as the caseCmay be, the Court shall pronounce judgment against him, or makesuch order in relation to the suit as it thinks fit and on thepronouncement of such judgment decree shall be drawn up.

*Provided that no Court shall make an order to extend thetime provided under rule 1 of this Order for filing of the writtenstatement.”

Impact of COVID-19:

Orders passed in SMWP No.3 of 2020

14. The major deal of arguments in the present case has revolvedaround the orders passed by this Court in Suo Motu Writ Petition (Civil)ENo. 3 of 2020 and the effect thereof on the prayer of the appellant foranother opportunity to file its written statement. Having regard to thequestions involved, it shall be apposite to take note of all the relevantorders passed by this Court.

14.1 The said suo motu petition was taken up by this Court inFrather peculiar and extraordinary circumstances in the wake of theoutbreak of COVID-19 pandemic, where the normal functioning of almostall the institutions got disrupted due to serious illness of large populaceand due to various containment measures taken by the administrativeauthorities, including lockdowns. The functioning of Courts and otherjuridical institutions also suffered set-backs and, in fact, with regularGspike in COVID-19 cases, when the Governments announced lockdownsin the interest of public safety and health, it was obvious to this Courtthat the litigants and their authorised agents would be facing serioushardships and difficulties in relation to their litigations and more particularly,in relation to the period of limitation when it would be well-nigh impossibleHfor them to file the proceedings within the prescribed period of limitation,

if the same was expiring during the period of such health emergenciesand enforcement of the measures of containment. Having regard to thecircumstances, this Court exercised its plenary powers under Article142 of the Constitution of India and passed an order on 23.03.2020 in thesaid SMWP No. 3 of 2020 that reads as under:-

“This Court has taken Suo Motu cognizance of the situationarising out of the challenge faced by the country on account ofCovid-19 Virus and resultant difficulties that may be faced bylitigants across the country in filing their petitions/applications/suits/appeals/all other proceedings within the period of limitationprescribed under the general law of limitation or under SpecialLaws (both Central and/or State).

To obviate such difficulties and to ensure that lawyers/litigantsdo not have to come physically to file such proceedings in respectiveCourts/Tribunals across the country including this Court, it is herebyordered that period of limitation in all such proceedings,irrespective of the limitation prescribed under the general law orSpecial Laws whether condonable or not shall stand extendedw.e.f. 15[th] March 2020 till further order/s to be passed by thisCourt in present proceedings.

We are exercising this power under Article 142 read withArticle 141 of the Constitution of India and declare that this orderis binding order within the meaning of Article 141 on all Courts/Tribunals and authorities.

This order may be brought to the notice of all High Courts forbeing communicated to all subordinate Courts/Tribunals within theirrespective jurisdiction.

Issue notice to all the Registrars General of the High Courts,returnable in four weeks.”

14.2. Apart from the aforementioned order passed in general terms,this Court also passed various orders from time to time in SMWP No. 3of 2020 in relation to the specific classes and categories of cases. On06.05.2020, this Court dealt with an interlocutory application and directedthat the limitation prescribed under the Arbitration and Conciliation Act,1996[8] and under Section 138 of the Negotiable Instruments Act, 1881

8 Hereinafter also referred to as ‘the Act of 1996’

Ashall stand extended with effect from 15.03.2020 until further orders. Itwas also provided that in case limitation had expired after 15.03.2020,the period between 15.03.2020 and lifting of lockdown in the jurisdictionalarea would be extended for period of 15 days after the lifting oflockdown. Then, on 10.07.2020, this Court took note of the submissionsmade by the learned Attorney General as regards the proceedings inBterms of Section 29-A of the Act of 1996, which does not prescribe aperiod of limitation but fixes the time for making an arbitral award. ThisCourt directed that the aforementioned orders dated 23.03.2020 and06.05.2020 shall also apply for extension of time limit for passing ofarbitral award. This Court further dealt with the requirements of SectionC23(4) of the Act of 1996, which provides for time period of six monthsfor completion of the statement of claim and defence; and it was directedthat the aforesaid orders shall apply for extension of the time limitprescribed under the said Section 23(4) too. Yet further, this Court alsoexamined the requirements of Section 12-A of the Commercial CourtsAct, 2015, which prescribes the time limit for completing the process ofDcompulsory pre-litigation mediation and directed that the said time limitwould also stand extended from time to time and for 45 days after liftingof lockdown. The relevant parts of the order dated 10.07.2020 couldalso be usefully extracted as under:-

“I.A. No. 49221/2020 -Section 29A of the Arbitration andEConciliation Act, 1996

Taken on Board.

In Suo Moto Writ Petition (C) No. 3/2020, by our order dated23.03.2020 and 06.05.2020, we ordered that all periods of limitationFprescribed under the Arbiration and Conciliation Act, 1996 shallbe extended w.e.f. 15.03.2020 till further orders.

Learned Attorney General has sought minor modification inthe aforesaid orders.

Section 29A of the Arbitration and Conciliation Act, 1996 doesGnot prescribe period of limitation but fixes time to do certainacts, i.e. making an arbitral award within prescribed time. We,accordingly, direct that the aforesaid orders shall also apply forextension of time limit for passing arbitral award under Section29A of the said Act. Similarly, Section 23(4) of the Arbitration andConciliation Act, 1996 provides for time period of 6 months forH

the completion of the statement of claim and defence. We,accordingly, direct that the aforesaid orders shall also apply forextension of the time limit prescribed under Section 23(4) of thesaid Act.

The application is disposed of accordingly.

Pre-Institution Mediation and Settlement under Section 12Aof the Commercial Courts Act, 2015.

Under Section 12A of the Commercial Courts Act, 2015, timeis prescribed for completing the process of compulsory pre-litigation, mediation and settlement. The said time is also liable tobe extended. We, accordingly, direct that the said time shall standextended from the time when the lockdown is lifted plus 45 daysthereafter. That is to say that if the above period, i.e. the period oflockdown plus 45 days has expired, no further period shall beliable to be excluded.”

14.3. The above-referred orders remained in operation for almosta year but, when there had been some reduction in the severity ofpandemic and when normalcy was being gradually restored, this Courtconsidered it appropriate to dispose of the said suo motu petition by itsorder dated 08.03.2021, while making specific provisions concerning thefuture course of action in relation to different eventualities, particularlythose pertaining to the period between 15.03.2020 to 14.03.2021. Thisorder dated 08.03.2021 reads as under: -

“1.Due to the onset of COVID-19 pandemic, this Court tooksuo motu cognizance of the situation arising from difficulties thatmight be faced by the litigants across the country in filing petitions/applications/suits/appeals/all other proceedings within the periodof limitation prescribed under the general law of limitation or underany special laws (both Central or State). By an order dated23.03.2020 this Court extended the period of limitation prescribedunder the general law or special laws whether compoundable ornot with effect from 15.03.2020 till further orders. The order dated23.03.2020 was extended from time to time. Though, we havenot seen the end of the pandemic, there is considerableimprovement. The lockdown has been lifted and the country isreturning to normalcy. Almost all the Courts and Tribunals arefunctioning either physically or by virtual mode. We are of theopinion that the order dated 23.03.2020 has served its purpose

and in view of the changing scenario relating to the pandemic, theextension of limitation should come to an end.

2. We have considered the suggestions of the learned AttorneyGeneral for India regarding the future course of action. We deemit appropriate to issue the following directions: -

1. In computing the period of limitation for any suit,appeal, application or proceeding, the period from15.03.2020 till 14.03.2021 shall stand excluded.Consequently, the balance period of limitationremaining as on 15.03.2020, if any, shall becomeavailable with effect from 15.03.2021.

2. In cases where the limitation would have expired duringthe period between 15.03.2020 till 14.03.2021,notwithstanding the actual balance period of limitationremaining, all persons shall have limitation period of 90days from 15.03.2021. In the event the actual balance periodof limitation remaining, with effect from 15.03.2021, isgreater than 90 days, that longer period shall apply.

3. The period from 15.03.2020 till 14.03.2021 shallalso stand excluded in computing the periodsprescribed under Sections 23 (4) and 29A of theArbitration and Conciliation Act, 1996, Section 12Aof the Commercial Courts Act, 2015 and provisos (b)and (c) of Section 138 of the Negotiable InstrumentsAct, 1881 and any other laws, which prescribeperiod(s) of limitation for instituting proceedings,outer limits (within which the court or tribunal cancondone delay) and termination of proceedings.

4. The Government of India shall amend the guidelines forcontainment zones, to state.

“Regulated movement will be allowed for medical`emergencies, provision of essential goods and services, andother necessary functions, such as, time bound applications,including for legal purposes, and educational and job-relatedrequirements.”

3. The Suo Motu Writ Petition is disposed of accordingly.”

(emphasis supplied)

14.4. Even when it appeared to almost all the concerned thatnormalcy was around the corner, the sneaky spread of virus continuedfor one reason or the other or in one way or the other; and this led to ahuge surge in COVID-19 cases across the country. This phenomenoncame to be generally known as the second wave of pandemic. In thegiven scenario, the Supreme Court Advocates-on-Record Associationmoved an application in SMWP No. 3 of 2020, seeking restoration of theorder dated 23.03.2020 while highlighting the surge of COVID-19 casesin Delhi and the difficulties being faced by the lawyers and litigants toinstitute their cases. This application was registered as MiscellaneousApplication No. 665 of 2021 in SMWP No. 3 of 2020 and was consideredby this Court on 27.04.2021. This Court took judicial notice of steep risein COVID-19 cases that had engulfed the entire country and found thatthe situation required extraordinary measures to minimise the hardshipof litigant-public. Therefore, the order dated 23.03.2020 was restoredand in continuation of the order dated 08.03.2021, it was directed thatthe period(s) of limitation, as prescribed under any general or speciallaws in respect of all judicial or quasi-judicial proceedings, whethercondonable or not, shall stand extended until further orders. Furtherclarification was also made for exclusion of the period from 14.03.2021in regard to the other period(s) prescribed under different laws. In thisorder dated 27.04.2021, this Court took note of the orders earlier passedin the matter and thereafter, observed and directed as under: -

“Supreme Court Advocate on Record Association (SCAORA)has now through this Interlocutory Application highlighted the dailysurge in COVID cases in Delhi and how difficult it has becomefor the Advocates-on-Record and the litigants to institute cases inSupreme Court and other courts in Delhi. Consequently, restorationof the order dated 23[rd] March, 2020 has been prayed for.

We have heard Mr. Shivaji M. Jadhav, President SCAORA insupport of the prayer made in this application. Learned AttorneyGeneral and Learned Solicitor General have also given theirvaluable suggestions.

We also take judicial notice of the fact that the steep rise inCOVID-19 Virus cases is not limited to Delhi alone but it hasengulfed the entire nation. The extraordinary situation caused bythe sudden and second outburst of COVID-19 Virus, thus, requiresextraordinary measures to minimize the hardship of litigant–public

912SUPREME COURT REPORTS

Ain all the states. We, therefore, restore the order dated 23[rd] March,2020 and in continuation of the order dated 8[th] March, 2021 directthat the period(s) of limitation, as prescribed under any general orspecial laws in respect of all judicial or quasi-judicial proceedings,whether condonable or not, shall stand extended till further orders.

BIt is further clarified that the period from 14[th] March, 2021 tillfurther orders shall also stand excluded in computing the periodsprescribed under Sections 23 (4) and 29A of the Arbitration andConciliation Act, 1996, Section 12A of the Commercial CourtsAct, 2015 and provisos (b) and (c) of Section 138 of the NegotiableInstruments Act, 1881 and any other laws, which prescribeCperiod(s) of limitation for instituting proceedings, outer limits (withinwhich the court or tribunal can condone delay) and termination ofproceedings. We have passed this order in exercise of our powersunder Article 142 read with Article 141 of the Constitution ofIndia. Hence it shall be binding order within the meaning ofDArticle 141 on all Courts/Tribunals and Authorities.

This order may be brought to the notice of all High Courts forbeing communicated to all subordinate courts/Tribunals within theirrespective jurisdiction.

Issue notice to all the Registrars General of the High Courts,Ereturnable in 6 weeks.

List the Miscellaneous Application on 19[th] July, 2021.”

14.5. The aforesaid order dated 27.04.2021 remained in operationfor few months in view of the prevalence of COVID-19 virus but,when the situation again started returning to near normal, this CourtFfound it expedient to restore the aforesaid order dated 08.03.2021.Accordingly, this Court passed the order dated 23.09.2021 in disposal ofMA No.665 of 2021, while taking into account the previous orders passedin the matter and while also taking into account the submissions made bythe learned Attorney General for India and the other learned counselappearing in the matter. The relevant part of this order dated 23.09.2021Gcould also be profitably reproduced as under: -

“8. Therefore, we dispose of the M.A. No.665 of 2021 with thefollowing directions: -

I. In computing the period of limitation for any suit, appeal,Happlication or proceeding, the period from 15.03.2020 till

02.10.2021 shall stand excluded. Consequently, the balanceperiod of limitation remaining as on 15.03.2020, if any, shallbecome available with effect from 03.10.2021.

II. In cases where the limitation would have expired during theperiod between 15.03.2020 till 02.10.2021, notwithstanding theactual balance period of limitation remaining, all persons shall havea limitation period of 90 days from 03.10.2021. In the event theactual balance period of limitation remaining, with effect from03.10.2021, is greater than 90 days, that longer period shall apply.

III. The period from 15.03.2020 till 02.10.2021 shall alsostand excluded in computing the periods prescribed underSections 23 (4) and 29A of the Arbitration and ConciliationAct, 1996, Section 12A of the Commercial Courts Act, 2015and provisos (b) and (c) of Section 138 of the NegotiableInstruments Act, 1881 and any other laws, which prescribeperiod(s) of limitation for instituting proceedings, outerlimits (within which the court or tribunal can condone delay)and termination of proceedings.

IV. The Government of India shall amend the guidelines forcontainment zones, to state.

“Regulated movement will be allowed for medical emergencies,provision of essential goods and services, and other necessaryfunctions, such as, time bound applications, including for legalpurposes, and educational and job-related requirements.”

(emphasis supplied)

Administrative order issued by the High Court

15. In another part of the arguments in the present case, anadministrative order dated 05.04.2021 issued by the High Court ofChhattisgarh has also come under reference. That order was issued bythe High Court in the wake of alarming number of COVID-19 cases inthe State of Chhattisgarh; and, in the given circumstances, the HighCourt was rather forced to provide for limited and curtailed functioningof the Courts in its jurisdiction. The relevant parts of the said order dated05.04.2021 could also be extracted as under: -

A“HIGH COURT OF CHHATTISGARH, BILASPUR

ORDER

No. 66 (Mis.) / 11-14-1/2021Bilaspur,dated 05th April, 2021BHon’ble High Court of Chhattisgarh has been pleased to makethe following arrangements in respect of functioning of the HighCourt and Subordinate Courts of the State of Chhattisgarh in viewof the alarming and mounting number of COVID-19 cases in theState of Chhattisgarh until further orders as under: -C************B-SUBORDINATE COURTS[District and Sessions Judge /Principal Judge / Judge of the Family Court / Judge CommercialCourt / Special Judge (SC/ ST), Member Judge (Industrial Court),Judge (Labour Court) etc.] - w.e.f. 06.04.2021:-

dated 05th April, 2021

All the above arrangements shall be subject to further modification,if any issued from time to time.

By order of Hon’ble the High Court

Sd/-05.04.21

(Sanjay Kumar Jaiswal)I/c. Registrar General

Bilaspur.”G(emphasis supplied)

Time limit for filing written statement and consequencesof default

16. For dealing with the rival submissions, in the first place, weneed to take into account the time limits for filing written statement in

Asuit governed by the provisions of the Commercial Courts Act, 2015. Asnoticed, by virtue of Section 16 thereof, the Commercial Court is tofollow the provisions of CPC as amended by the Act in the trial of suitin respect to Commercial dispute of Specified Value. The relevantprovisions contained in Order V Rule 1, Order VIII Rule 1 and OrderVIII Rule 10 CPC, have been reproduced hereinabove; and it is manifestBthat the said provisions not only envisage strict timelines for filing ofwritten statement but even provide for consequences of default, whilerestricting the powers of the Court to extend the time for filing writtenstatement beyond the period prescribed. Tersely put, as per the mandateof the said provisions: (a) the defendant is under an obligation to file theCwritten 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 30days, he may be allowed to file the written statement on such other dayas the Court may specify for reasons to be recorded in writing and onpayment of such costs as the Court may impose but this other day, inany case, cannot go beyond 120 days from the date of service ofDsummons; (c) on expiry of 120[th] day from the date of service of summons,the defendant forfeits the right to file the written statement and no Courtcan make an order to extend such time beyond 120 days from the dateof service of summons. These aspects were underscored by this Courtin the case of SCG Contracts (supra) in no uncertain terms. In thatEcase, the Single Judge of the High Court, after rejecting an applicationmade by the defendant under Order VII Rule 11 CPC, proceeded togrant some time to the defendant for filing his written statement beyondthe aforesaid mandatory period of 120 days. Later on, the plaintiff’sprayer for not taking the written statement on record was rejected bythe High Court on the ground that the earlier order permitting such filingFof written statement had attained finality. This Court disapproved theorders so passed by the High Court with reference to the aforesaidamended provisions of Order V Rule 1(1), Order VIII Rule 1 and OrderVIII Rule 10 CPC. While explaining the sweep and mandate of theseprovisions, this Court said, -G“8……...A perusal of these provisions would show that ordinarilya written statement is to be filed within period of 30 days.However, grace period of further 90 days is granted which theCourt may employ for reasons to be recorded in writing andpayment of such costs as it deems fit to allow such writtenHstatement to come on record. What is of great importance is the

fact that beyond 120 days from the date of service of summons,the Defendant shall forfeit the right to file the written statementand the Court shall not allow the written statement to be taken onrecord. This is further buttressed by the proviso in Order VIIIRule 10 also adding that the Court has no further power to extendthe time beyond this period of 120 days.”

This Court also made it clear that these mandatory provisionscannot be circumvented even by recourse to inherent powers underSection 151 CPC while observing as under: -

“16……Clearly, the clear, definite and mandatory provisions ofOrder V read with Order VIII Rule 1 and Rule 10 cannot becircumvented by recourse to the inherent power under section151 to do the opposite of what is stated therein.”

17. If the aforesaid provisions and explained principles are literallyand plainly applied to the facts of the present case, the 120[th] day fromthe date of service of summons came to an end with 06.05.2021 and thedefendant, who had earlier been granted time for filing its writtenstatement on payment of costs, forfeited such right with the end of 120[th]day, i.e., 06.05.2021. However, it is required to be kept in view that theprovisions aforesaid and their interpretation in SCG Contracts (supra)operate in normal and non-extraordinary circumstances with the usualfunctioning of Courts. It is also noteworthy that the above referredprovisions of CPC are not the only provisions of law which lay downmandatory timelines for particular proceedings. The relevant principles,in their normal and ordinary operation, are that such statutory timelinesare of mandatory character with little, or rather no, discretion with theAdjudicating Authority for enlargement. The question in the present caseis, as to whether the said provisions and principles are required to beapplied irrespective of the operation and effect of other orders passed/issued by the Courts under the force of aberrant, abnormal andextraordinary circumstances? In our view, the answer to this questioncannot be in the affirmative for variety of reasons, as indicated infra.

Operation and effect of the orders passed in SMWP No. 3of 2020

18. It is not matter of much debate that, starting from or aroundthe month of December, 2019, the entire humanity faced situationwhich was unprecedentedly unfavourable and unpleasant to almost all

Athe persons and the institutions. It was the outbreak of COVID-19pandemic that engulfed practically the entire globe; and the highlycontagious virus called SARS-CoV-2 started playing havoc with its rapidtransmission from one person to another. COVID-19 carried with it thescary possibilities of irretrievable damage to the respiratory systems,even leading to deaths. In fact, the number of fatalities due to this infectionBhad been beyond imagination with survivors also living under constantthreat. The unprecedented health emergencies due to highly transmissibleCOVID-19 virus led the administrations to take various containmentmeasures, including those of travel restrictions and lockdowns as also ofisolating the infected persons while putting their close contacts inCquarantine.

18.1. We need not elaborate on the havoc created by COVID-19but the relevant aspect for the present purpose is that with COVID-19,the movement of persons and working of almost all the institutions landedin such difficulties which were neither foreseen nor guarded against.D19. When the movements and gatherings of persons were fraughtwith dangers and when lockdowns became inevitable, the institutionsrelated with the task of administration of justice were also required torespond to the challenges thrown by this pandemic. In this regard, thisCourt, apart from taking various measures of containment, also tookEnote of the practical difficulties of the litigants and their lawyers; andthis led to the suo motu order dated 23.03.2020 in SMWP No. 3 of2020.19.1. In the consciously worded order dated 23.03.2020, this Court,while taking note of the difficulties likely to be faced by the litigants inFfiling their petitions/applications/suits/appeals/proceedings within theperiod of limitation, ordered that the period of limitation in all suchproceedings, irrespective of the limitation prescribed under general orspecial laws, whether condonable or not, shall stand extended w.e.f.15.03.2020 until further orders. This order was passed in exercise ofplenary powers of this Court under Article 142 of the Constitution ofGIndia, which are complementary to other powers specifically conferredby various statutes. Even if the above referred provisions of CPC hadnot been stated in specific terms, the general mandate of the order dated23.03.2020 was to extend the period of limitation provided in any law forthe time being in force, irrespective whether the same was condonableHor not, w.e.f. 15.03.2020 and until further orders. Noticeably, on

06.05.2020, when special periods of limitation under different enactmentslike the Act of 1996 were referred to, this Court further ordered that thelimitation prescribed thereunder shall stand extended w.e.f. 15.03.2020until further orders. It was time when the country was under the gripof lockdown, and the Court provided that in case limitation had expiredafter 15.03.2020, the period between 15.03.2020 and lifting of lockdownin the jurisdictional area would be extended for period of 15 days afterlifting of lockdown.

19.2. Further, on 10.07.2020, this Court enlarged the scope ofinitial order in relation to the timelines fixed in Section 29-A and Section23(4) of the Act of 1996. Significantly, Section 23(4) of the Act of 1996mandates that the statement of claim and defence shall be completedwithin time period of six months. Yet further, it was also provided thatthe time for completing the process of compulsory pre-litigation mediationunder Section 12-A of the Commercial Courts Act, 2015 shall standextended for 45 days after lifting of lockdown.

19.3. On 08.03.2021, suggestions were made before this Courtabout lifting of lockdowns and likely return of normalcy and, therefore,this Court considered it proper to dispose of the said suo motu petitionwith specific directions that while computing the period of limitation forany suit, appeal, application or proceeding, the period from 15.03.2020to 14.03.2021 would stand excluded. Though the said order dated08.03.2021 was passed with belief that the adverse effects of thepandemic were receding and normalcy was returning but, the spread ofvirus continued and this led to an exponential surge in COVID-19 cases;and to the second wave of pandemic in the country around the monthsof March-April, 2021. In this turn of events, this Court again took up thematter in SMWP No. 3 of 2020 on MA No. 665 of 2021, as moved bythe Supreme Court Advocate-on-Record Association and passed thenecessary order on 27.04.2021 in revival of the previous orders.

19.4. At this juncture, we are impelled to refer to the fact thatmuch before passing of the order dated 27.04.2021 by this Court, thealarming scenario due to the second wave of pandemic was indeed takennote of by the High Court of Chhattisgarh; and that High Court issuedthe above-referred administrative order dated 05.04.2021 for curtailed/truncated functioning of the High Court as also the subordinate Courts.We shall elaborate on this aspect in the next segment of discussion but,have indicated the same at this juncture to highlight the fact that even

Abefore passing of the order dated 27.04.2021 by this Court in SMWPNo. 3 of 2020, the Trial Court dealing with the subject suit was alreadyunder containment measures; and could not have functioned normally.

19.5. Reverting to the orders passed by this Court, noticeable it isthat on 27.04.2021, this Court restored the order dated 23.03.2020 and itBwas directed, in continuation of the order dated 08.03.2021, that theperiods of limitation as prescribed under any general or special laws inrespect of all judicial or quasi-judicial proceedings, whether condonableor not, shall stand extended. Ultimately, the said MA No. 665 of 2021was disposed of on 23.09.2021 with this Court issuing directions similarto those contained in the order dated 08.03.2021 but while providing thatCin computing the period of limitation for any suit, appeal, application orproceeding, the period from 15.03.2020 till 02.10.2021 shall standexcluded.

19.6. We are not elaborating on other directions issued by thisCourt but, when read as whole, it is but clear that the anxiety of thisDCourt had been to obviate the hardships likely to be suffered by thelitigants during the onslaughts of this pandemic. Hence, the legal effectand coverage of the orders passed by this Court in SMWP No. 3 of2020 cannot be unnecessarily narrowed and rather, having regard totheir purpose and object, full effect is required to be given to such ordersEand directions.[9]

20. As regards the operation and effect of the orders passed bythis Court in SMWP No. 3 of 2020, noticeable it is that even though inthe initial order dated 23.03.2020, this Court provided that the period oflimitation in all the proceedings, irrespective of that prescribed underFgeneral or special laws, whether condonable or not, shall stand extendedw.e.f. 15.03.2020 but, while concluding the matter on 23.09.2021, thisCourt specifically provided for exclusion of the period from 15.03.2020

9 To complete the scenario, we may indicate in the passing that even after we had heardthis matter, there had been re-surge of COVID-19 cases with spread of new variant ofGthe virus. The drastic re-surge in the number of COVID cases has led this Court to againdeal with the matter in SMWP No. 3 of 2020 on an application bearing No. 21 of 2022;and by the order dated 10.01.2022, this Court again restored the principal order dated23.03.2020 and in continuation of the previous orders, has further directed that theperiod from 15.03.2020 till 28.02.2022 shall stand excluded for the purposes of limitationas may be prescribed under any general or special laws in respect of all judicial or quasi-judicial proceedings. Be that as it may, the fresh order in SMWP No.3 of 2020 need notHbe elaborated for the present purpose.

till 02.10.2021. look at the scheme of the Limitation Act, 1963 makesit clear that while extension of prescribed period in relation to an appealor certain applications has been envisaged under Section 5, the exclusionof time has been provided in the provisions like Sections 12 to 15 thereof.When particular period is to be excluded in relation to any suit orproceeding, essentially the reason is that such period is accepted bylaw to be the one not referable to any indolence on the part of the litigant,but being relatable to either the force of circumstances or otherrequirements of law (like that of mandatory two months’ notice for asuit against the Government[10]). The excluded period, as necessaryconsequence, results in enlargement of time, over and above the periodprescribed.20.1. Having regard to the purpose for which this Court hadexercised the plenary powers under Article 142 of the Constitution ofIndia and issued necessary orders from time to time in SMWP No. 3 of2020, we are clearly of the view that the period envisaged finally in theorder dated 23.09.2021 is required to be excluded in computing the periodof limitation even for filing the written statement and even in cases wherethe delay is otherwise not condonable. It gets perforce reiterated thatthe orders in SMWP No. 3 of 2020 were of extraordinary measures inextraordinary circumstances and their operation cannot be curtailed withreference to the ordinary operation of law.

20.2. 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 of2020 leave nothing to doubt that special and extraordinary measureswere provided by this Court for advancing the cause of justice in thewake of challenges thrown by the pandemic; and their applicability cannotbe denied in relation to the period prescribed for filing the writtenstatement. It would be unrealistic and illogical to assume that while thisCourt has provided for exclusion of period for institution of the suit andtherefore, suit otherwise filed beyond limitation (if the limitation hadexpired between 15.03.2020 to 02.10.2021) could still be filed within 90days from 03.10.2021 but the period for filing written statement, if expiredduring that period, has to operate against the defendant.

20.3. Therefore, in view of the orders passed by this Court inSMWP No. 3 of 2020, we have no hesitation in holding that the time limit

Afor filing the written statement by the appellant in the subject suit did notcome to an end on 06.05.2021.

21. It is also noteworthy that even before the scope of the orderspassed in SMWP No. 3 of 2020 came to be further elaborated andspecified in the orders dated 08.03.2021 and 23.09.2021, this Court dealtBwith an akin scenario in the case of SS Group Pvt. Ltd. (supra), decidedon 17.12.2020. In that case, in terms of Section 38(2)(a) of the ConsumerProtection Act, 2019, 30 days’ time provided for filing the writtenstatement expired on 12.08.2020 and the extendable period of 15 daysalso expired on 27.08.2020. Admittedly, the written statement was filedon 31.08.2020, which was beyond the permissible period of 45 days.CThe Constitution Bench of this Court has held in the case of New IndiaAssurance Co. Ltd. v. Hill Multipurpose Cold Storage (P) Ltd.: (2020)5 SCC 757 that the Consumer Court has no power to extend the timefor filing response to the complaint beyond 45 days. After taking note ofthe applicable provisions of law as also the mandate of Constitution Bench,Dthis Court referred to the orders until then passed in SMWP No. 3 of2020 and held that the limitation for filing written statement would bedeemed to have been extended. This Court, inter alia, observed andheld as follows: -

“12: In the present matter, it is an admitted fact that the period ofElimitation of 30 days to file the written statement had expired on12.08.2020 and the extended period of 15 days expired on27.08.2020. This period expired when the order dated 23.03.2020passed by this Court in SMW(C) No. 3 of 2020 was continuing.

13: In view of the aforesaid, in our opinion, the limitation for filingFthe written statement in the present proceedings before the NationalCommission would be deemed to have been extended as it isclear from the order dated 23.03.2020 that the extended period oflimitation was applicable to all petitions/applications/suits/appealsand all other proceedings. As such, the delay of four days in filingthe written statements in the pending proceedings before theGNational Commission deserves to be allowed, and is accordinglyallowed.”

22. The enunciations aforesaid do not support the case of therespondent but, the learned senior counsel appearing for the respondenthas relied upon two other decisions in support of his contentions. WeH

may refer to the same to find out if they would apply and make out anycase in favour of the respondent.

22.1. The case of S. Kasi (supra) related to default bail plea ofthe accused-appellant for the reason that the charge-sheet had not beenfiled within the time permitted by Section 167(2) CrPC. The High Courttook the view that the said order dated 23.03.2020 in SMWP No. 3 of2020 would eclipse all the provisions prescribing the period of limitation,including that prescribed under Section 167(2) CrPC. This Court referredto the reasons for passing the orders in the said suo motu petition andthe difficulties sought to be taken care of; and found that an investigatingofficer was not prevented from such difficulties as were faced by thelawyers and litigants; and the investigating officer could have submittedthe charge-sheet before the Magistrate (Incharge). This Court observedand held as under: -

“17: The limitation for filing petitions/applications/suits/appeals/all other proceedings was extended to obviate lawyers/litigants tocome physically to file such proceedings in respective Courts/Tribunals. The order was passed to protect the litigants/lawyerswhose petitions/applications/suits/appeals/all other proceedingswould become time barred they being not able to physically cometo file such proceedings. The order was for the benefit of thelitigants who have to take remedy in law as per the applicablestatute for right. The law of limitation bars the remedy but notthe right. When this Court passed the above order for extendingthe limitation for filing petitions/applications/suits/appeals/all otherproceedings, the order was for the benefit of those who have totake remedy, whose remedy may be barred by time because theywere unable to come physically to file such proceedings. Theorder dated 23.03.2020 cannot be read to mean that it ever intendedto extend the period of filing charge sheet by police as contemplatedunder Section 167(2) of the Code of Criminal Procedure. TheInvestigating Officer could have submitted/filed the charge sheetbefore the (Incharge) Magistrate. Therefore, even during thelockdown and as has been done in so many cases the charge-sheet could have been filed/submitted before the Magistrate(Incharge) and the Investigating Officer was not precluded fromfiling/submitting the charge-sheet even within the stipulated periodbefore the Magistrate (Incharge).”

A22.1.1. In fact, in the said case, this Court also noticed that co-ordinate Bench of the same High Court had already held that the saidorder dated 23.03.2020 did not cover the offences for which Section167 CrPC was applicable but, in the order impugned, the other learnedSingle Judge of the same High Court took view contrary to the earlierdecision of the co-ordinate Bench; and that was found to be entirelyBimpermissible. In any case, the said decision, concerning the matter ofpersonal liberty referable to Article 21 of the Constitution of India andthen, relating to the proceedings to be undertaken by an investigatingofficer, cannot be applied to the present case relating to the matter offiling written statement by the defendant in civil suit.C22.2. So far as the decision of this Court in Sagufa Ahmed (supra)is concerned, few relevant factors related with the said case need tobe noticed. In that case, the appellants had moved an application beforeGuwahati Bench of the National Company Law Tribunal for winding upof the respondent company. The petition was dismissed on 25.10.2019.DThe appellants applied for certified copy of the order dated 25.10.2019only on 21 or 22.11.2019 and received the certified copy of the orderthrough their counsel on 19.12.2019. However, the appellants filed thestatutory appeal before the National Company Law Appellate Tribunalonly on 20.07.2020 with an application for condonation of delay. TheAppellate Tribunal dismissed the application for condonation of delay onEthe ground that it had no power to condone the delay beyond period of45 days. Consequently, the appeal was also dismissed. In that case, itwas indisputable that even while counting from 19.12.2019, the periodof 45 days expired on 02.02.2020 and another period of 45 days, forwhich the Appellate Tribunal could have condoned the delay, also expiredFon 18.03.2020. To overcome this difficulty, the appellants relied upon theaforesaid order dated 23.03.2020. This Court observed that the appellantswere not entitled to take refuge under the above order in SMWP No. 3of 2020 because what was extended was only the period of limitationand not the period up to which delay could be condoned in exercise ofGdiscretion conferred by the statute. This Court said thus: -

“17. …… What was extended by the above order of this Courtwas only “the period of limitation” and not the period up towhich delay can be condoned in exercise of discretionconferred by the statute. The above order passed by this Courtwas intended to benefit vigilant litigants who were prevented dueH

to the pandemic and the lockdown, from initiating proceedingswithin the period of limitation prescribed by general or speciallaw. It is needless to point out that the law of limitation finds itsroot in two Latin maxims, one of which is vigilantibus et nondormientibus jura subveniunt which means that the law willassist only those who are vigilant about their rights and not thosewho sleep over them.”

22.2.1. One of the significant facts to be noticed is that the saiddecision in Sagufa Ahmed case was rendered by 3-Judge Bench ofthis Court much before the aforesaid final orders dated 08.03.2021 and27.09.2021 in SMWP No. 3 of 2020 by another 3-Judge Bench of thisCourt. In those final orders, this Court not only provided for the extensionof period of limitation but also made it clear that in computing the periodof limitation for any suit, appeal, application or proceeding, the periodfrom 15.03.2020 to 02.10.2021 shall stand excluded. Such proposition ofexclusion, which occurred in the later orders, was not before this Courtin the case of Sagufa Ahmed (supra), which was decided much earlieri.e., on 18.09.2020.

22.2.2. Moreover, the extendable period in the case of SagufaAhmed (supra) was up to 18.03.2020; and this Court found that lockdownwas imposed only on 24.03.2020 and there was no impediment in filingthe appeal on or before 18.03.2020. The present one is case where theprescribed extendable time for filing of the written statement expired on06.05.2021. It is not the case of the respondent nor there is anyobservation in the orders impugned that at the relevant point of time, thearea in question was not containment zone or that such normalcywas available where the appellant could have filed its written statement.

22.2.3. Having regard to the orders subsequently passed by the3-Judge Bench of this Court in SMWP No. 3 of 2020 (and MA No. 665of 2021 therein), as also having regard to the fundamental difference offacts and the surrounding factors, the said decision in Sagufa Ahmed,in our view, is also of no application to the present case.

23. On behalf of the respondent, much emphasis has been laid onthe submission that the appellant was regularly appearing in the Courtand, therefore, cannot take advantage of the orders passed in SMWPNo. 3 of 2020. It is true that the appellant had indeed caused appearancein the Court in response to the summons and sought time for filing its

Awritten statement but at the same time, it is also undeniable that at therelevant point of time, the second wave of pandemic was simmering andthen, it engulfed the country with rather unexpected intensity and ferocity.Then, on 27.04.2021, this Court restored the operation of the order dated23.03.2020 in SMWP No. 3 of 2020. Putting all these factors together,we are unable to accept the submissions made on behalf of the respondentBthat because of earlier appearance or prayer for adjournment, thedefendant-appellant would not be entitled to the relaxation available underthe extraordinary orders passed by this Court.

Implication and effect of the administrative order issuedby the High CourtC

24. Apart from the above, in our view, the impugned orders cannotbe approved for yet another major factor, being that of the implicationand effect of the administrative order issued by the jurisdictional HighCourt.D25. As noticed, on 15.04.2021, the Trial Court had specifically

D25. As noticed, on 15.04.2021, the Trial Court had specificallyfixed the matter for arguments on two applications: one being theapplication of the appellant seeking stay of suit proceedings in terms ofSection 10 CPC and another being the application moved by therespondent seeking interim directions of attachment before judgment interms of Order XXXVIII Rule 5 CPC. However, on 15.04.2021, theETrial Court could not hear the parties on the said two applications andadjourned the matter to 22.06.2021 with reference to its ownadministrative order dated 07.04.2021 as also the High Court’sadministrative order dated 05.04.2021. We have reproduced the relevantpart of the said administrative order of the High Court hereinbefore andFit is but clear that its effect was of providing truncated/curtailed functioningof subordinate Courts in view of the pandemic; and the directions hadbeen of limited court functioning, even in terms of hours of working,essentially for the purpose of the cases of urgent nature. The proceedingsin the subject suit were neither of urgent nature nor were considered soby the Trial Court. It was for this reason that on 15.04.2021, the TrialGCourt simply adjourned the matter beyond two months.

25.1. It is absolutely clear that during the operation of the saidorder dated 05.04.2021, the subordinate Courts under the superintendenceof the High Court of Chhattisgarh (which include the Trial Court relatedwith the subject suit) could not have been considered functioning in aH

normal manner and for the whole of normal working days and hours.The period during which the said order dated 05.04.2021 was operative,could have only been considered dies non juridicus, i.e., the daysonwhich the Courts do not ordinarily sit or carry-on business, particularlyin regard to any period of limitation. In P. Ramanatha Aiyar’s LawLexicon[11] the concept of dies non juridicus is explained, inter alia, inthe following terms: -

“Dies non. (Lat.) day which is regarded by the law as one onwhich no judicial act can be performed, or legal diligence used.(Trayner)

(Shortened form of Dies non juridicius). day not juridical, aday exempt from Court proceedings, such as holiday or Sunday.

day on which the Courts do not ordinarily sit or carry on business;a day on which general business may not lawfully be transacted.

day on which Law-Court is not held.

day that is not counted for some purpose. For example, Saturdayand Sunday are not counted as days of the working week.

xxxxxxxxx

An abbreviation of the phrase “dies non juridicus”, non-judicialdays-days during which the Courts do not transact any business-as Sunday or the legal holidays. (Havens v. Stiles, 56 LRA 736).It is frequently said that Sunday is “die non juridicus”, but thismeans only that process cannot ordinarily issue or be executed orreturned, and Courts do not usually sit, on that day. It does notmean that no judicial action be had on that day. On the contrary, itis laid down in books of authority that warrants for treason, felonyand breach of the peace may be issued and executed on that day,(State v. Ricketts, 74 N.C. 187, 193)”

25.2. The concept of limitation not coming to an end on daywhen the Court is closed, or is deemed to be closed, is precisely containedin Section 4 of the Limitation Act, 1963 that reads as under: -

“4. Expiry of prescribed period when court is closed. - Wherethe prescribed period for any suit, appeal or application expires on

Aa day when the court is closed, the suit, appeal or application maybe instituted, preferred or made on the day when the court reopens.

Explanation.- court shall be deemed to be closed on anyday within the meaning of this section if during any part ofits normal working hours it remains closed on that day.”

(emphasis supplied)

25.2.1. It is thus beyond cavil that if the prescribed period for anysuit/appeal/application expires on day when the Court is considered‘closed’, such proceedings may be instituted on the re-opening day.Significantly, the Explanation to Section 4 of the Limitation Act, 1963Cmakes it clear that day when the Court may not as such be closed inphysical sense, it would be ‘deemed’ to be closed, if during any part ofits normal working hours, it remains closed on that day for any particularproceedings or work.

25.3. As noticed from the relevant parts of the order datedD05.04.2021 (vide paragraph 15 hereinabove) that at the relevant time,limited number of Courts were to function on rotational basis in Raipurand that too, with curtailed working hours from 11:00 a.m. to 2:00 p.m.;and they were to function during full working hours only for bail andremand matters. Having regard to the situation prevalent at the relevantEtime and the contents as also spirit of the administrative order issued bythe jurisdictional High Court, there is nothing to doubt that w.e.f.06.04.2021, the Court in question could not have been consideredfunctioning normally; and that period of operation of the saidadministrative order dated 05.04.2021 could have only been considereddies non juridicus for the purpose of the prescribed period for doingFanything in the proceedings in that Court. It has not been pointed out if,as on 06.05.2021, the said order dated 05.04.2021 had been withdrawnand the situation had returned to such normalcy that the appellant shouldhave attended the Trial Court and should have filed the written statement.Quite contrary to any such proposition, the submission on behalf of theGappellant, even on 22.06.2021, had been about the ailments of the partnersof the appellant firm as also their lawyer and their families, where thelawyer lost his mother due to health complications. Any proposition, whichsuggests that during such non-regular-business days of the Trial Court,and rather bleak days for the humanity, the written statement ought tohave been filed, could only be disapproved as being impractical and ratherHpreposterous.Another error of procedure by the Trial Court

26. Apart from the above, yet another significant feature is thaton the very first day of appearance, i.e., on 18.01.2021, the appellantmoved an application under Section 10 read with Section 151 CPC forstay of the suit proceedings on the ground that proceedings between theparties relating to the subject matter of the suit were pending before theNCLT. The respondent had earlier moved an application seekingdirections of attachment before judgment in terms of Order XXXVIIICPC. Both the applications as moved by the appellant as also by therespondent remained pending and, on 15.03.2021, the Trial Courtadjourned the matter to 15.04.2021 for arguments on both theseapplications. On 15.04.2021, no business could be transacted and thematter was adjourned to 22.06.2021, again for arguments on theseapplications. Even when the matter was taken up on 22.06.2021 and theTrial Court declined the prayer of the appellant for another opportunityfor filing the written statement, it did not take up the said applications forconsideration and adjourned the matter to 09.07.2021. We are notcommenting on merits of the application moved by the appellant underSection 10 CPC but, it cannot be gainsaid that such an application, by itsvery nature, required immediate consideration and before any other stepsin the suit. It needs hardly any emphasis that if the prayer made in theapplication moved under Section 10 were to be granted, the trial of thesubject suit was not to be proceeded with at all. We find it rather intriguingthat on one hand, the Trial Court itself posted the matter for considerationof that application along with the other application moved by therespondent but did not take them up on 22.06.2021 and adjourned thematter after declining the prayer for filing written statement. Even whenthe Trial Court considered the step of filing the written statement to beof importance in view of the time limit and consequences stated in thestatute, there was no justification that the Trial Court did not simultaneouslytake up the application under Section 10 CPC for consideration.

26.1. We are constrained to reiterate the unquestionable principlesthat the rules of procedure are essentially intended to subserve the causeof justice and are not for punishment of the parties in conduct of theproceedings. Of course, in the ordinary circumstances, the mandates ofRule 1(1) of Order V, Rule 1 of Order VIII as also Rule 10 of OrderVIII, as applicable to the Commercial dispute of Specified Value, dooperate in the manner that after expiry of 120[th] day from the date of

DEF

Aservice of summons, the defendant forfeits the right to submit his writtenstatement and the Court cannot allow the same to be taken on recordbut, these provisions are intended to provide the consequences in relationto defendant who omits to perform his part in progress of the suit asenvisaged by the rules of procedure and are not intended to override allother provisions of CPC like those of Section 10. These comments areBnecessitated for the reason that the Trial Court seems to have simplyignored the requirements of dealing with the pending applications withrequisite expedition. We say no more.

Conclusion

C27. For what has been discussed hereinabove, we are unable toapprove the order dated 22.06.2021 as passed by the Trial Court and theorder dated 09.07.2021 as passed by the High Court. In our view, thewritten statement already prepared and notarised by the defendant-appellant deserves to be taken on record and the Trial Court deserves tobe directed to proceed with the matter in accordance with law thereafter;Dand for that matter, to deal with the pending applications without furtherdelay.

28. Accordingly, this appeal is allowed; the impugned orders dated22.06.2021 as passed by the Commercial Court (District Level), NavaRaipur, Chhattisgarh in Civil Suit No. 01-B of 2021 as also the orderEdated 09.07.2021 as passed by the High Court of Chhattisgarh in WPNo. 312 of 2021 are set aside; the written statement notarised by thedefendant-appellant on 07.07.2021 is ordered to be taken on record.After taking the written statement on record, the Trial Court shall proceedwith the suit in accordance with law; and for that matter, shall deal withFthe pending applications before taking any other steps in the suit.

Devika Gujral(Assisted by : Shevali Monga, LCRA)