OP(C) No.591 of 2023 (Anil.M.P & Mini.K.S v Capital Finserv Ltd)

Case Details & Bench

Court: High Court of Kerala
Hon'ble Judges: C. S. Dias
Judgment Date: 2023-03-08
Court Decision / Holding: Original petition fails and is dismissed; the impugned order rejecting IA 6/2023 is upheld; no interference under Article 227 of the Constitution of India.
Final Disposition: Original petition dismissed; impugned order upheld; no interference under Article 227.

Parties to the Case

Appellants / Petitioners

Anil.M.P
Mini.K.S

Respondents

Capital Finserv Ltd

Legal Representation & Advocates

Counsels for Petitioners

• K.V. Sanosh
• B.R. Muraleedharan
• I.J. Augustine
• K.V. Suresh
• Neethu Nalinakshan

Counsels for Respondents

• Benny Joseph

Case Synopsis & Summary

Anil.M.P and Mini.K.S, petitioners, challenge the Commercial Court, Ernakulam’s order rejecting IA 6/2023 to accept their written statement in CS No.490/2021. The suit, for recovery of money, was instituted on 4 December 2021; the defendants appeared on 13 January 2022 and sought time to file a written statement. Documents relating to the transaction were misplaced, delaying the WS; after tracing them, the petitioners filed the WS along with IA 6/2023 on 27 February 2023, i.e., about a year after suit initiation. The Commercial Court, applying the amended provisions, held that the written statement could not be taken on record and rejected the application. The High Court examines the amendments to Orders V and VIII of the CPC under Section 16 of the Commercial Courts Act, 2015, which entrench a 120-day period from service of summons; after which the right to file is forfeited. It relies on SCG Contracts India Pvt. Ltd. v. K.S. Chamankar Infrastructure Pvt. Ltd. (2019) 12 SCC 210 to insist that amendments are mandatory, and on Raj Process Equipments & Systems Pvt Ltd v. Honest Derivatives Pvt Ltd (2022) LiveLaw SC 928 to note a contrary, directory reading in a transfer scenario. On the facts, the court concludes the WS was beyond the permitted period and the impugned order does not warrant interference; the petition is dismissed under Article 227.

Provisions of Law Cited

Section 16 of the Commercial Courts Act, 2015Order V, Rule 1 proviso (as amended)Order VIII, Rule 1 proviso (as amended)

Submissions & Arguments

Contentions of Appellants / Petitioners

The petitioners argued that misplacement of documents caused delay but they filed their written statement as soon as documents were traced, within the extended window provided by the Commercial Courts Act. They contended that amended provisions to Orders V and VIII of the CPC grant a 120-day window from service of summons with forfeit of the right only if not complied with within that period; transfers or exceptions cited by Raj Process should not bar filing. They relied on SCG Contracts India to assert the mandatory nature of amendments, and on Raj Process to caution on directory readings in certain transfer scenarios. Respondents contended the amended provisions are mandatory and the 120-day limit was not complied with, justifying refusal to take WS on record; no interference was warranted.

Contentions of Respondents

The respondent argued that the amended provisions are mandatory; the 120-day period from service of summons is strict, and the court correctly refused to accept the WS filed beyond time. They relied on the statutory framework to support the impugned order and dismissal of the petition.

Cited Precedents (2)

Case Name	Citation	Treatment	Explanation
SCG Contracts India Pvt. Ltd v. K.S Chamankar Infrastructure Pvt. Ltd & Ors	(2019) 12 SCC 210	Positive	Cited to establish that the amended provisions are mandatory.
Raj Process Equipments and Systems Pvt Ltd & Ors v. Honest Derivatives Pvt Ltd	2022 LiveLaw (SC) 928	Mentioned Only	Cited to illustrate a contrasting, directory interpretation in a transfer scenario; not controlling in the present case.

Extracted Judgment Text

Exact text extracted from official judgment records.

1 OP(C) No.591 of 2023 # **IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT** # **THE HONOURABLE MR.JUSTICE C.S.DIAS** **WEDNESDAY, THE 8[TH] DAY OF MARCH 2023 / 17TH PHALGUNA, 1944** **OP(C) NO. 591 OF 2023** **AGAINST THE ORDER/JUDGMENT IN** IA No.6/2023 in **CS 490/2021 OF THE COMMERCIAL COURT, ERNAKULAM** ## **PETITIONER/S:** 1. ANIL.M.P AGED 55 YEARS S/O PRABHAKARAN,MADATHIYANIPADATH HOUSE, THOMASPURAM, MARADU, ERNAKULAM, PIN - 682304 2 MINI.K.S, AGED 48 YEARS W/O ANIL.M.P, MADATHIYANIPADATH HOUSE,THOMASPURAM, MARADU, ERNAKULAM, PIN - 682304 BY ADVS. K.V.SANOSH B.R.MURALEEDHARAN I.J.AUGUSTINE K.V.SURESH NEETHU NALINAKSHAN ## **RESPONDENT/S:** CAPITAL FINSERV LTD REG.OFFICE ERUMALA TOWER, COLLEGE ROAD, ERNAKULAM,682 011, REPRESENTED BY LEGAL OFFICER BENNY JOSEPH, AGED 59 YEARS,RESIDING AT PARAKUDIYIL HOUSE, KOZHIPPILLY P.O., INCHOOR, PIN-686691, THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 08.03.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: 2 OP(C) No.591 of 2023 ## **“CR”** ## **C.S DIAS, J.** **--------------------------OP(C) No.591 of 2023** **----------------------------Dated this the 8[th] day of March, 2023.** ## **JUDGMENT** The original petition is filed challenging the order passed in IA No.6/2023 in CS No.490/2021 by the Commercial Court, Ernakulam. The petitioners are the defendants, and the respondent is the plaintiff. 2. The relevant antecedent facts leading to the impugned order are: 2. (i). The respondent has filed the suit against the petitioners for recovery of money. 2.(ii). The petitioners entered appearance in the suit on 5.8.2022 and prayed for time to file their written statement. 3 OP(C) No.591 of 2023 2. (iii). As the relevant documents pertaining to the transaction were misplaced, the petitioners could not file the written statement within the prescribed time period. 2.(iv). The Commercial Court proceeded with the suit. The respondent remitted the balance court fee, and the suit was listed for trial. 2.(v). The petitioners made earnest efforts and traced out the documents. They immediately filed their written statement along with IA No.6/2023 to accept the written statement on file. 2.(vi). The Commercial Court, by the impugned order, rejected the application. 2. (vii). The impugned order is perverse, irrational and improper. Hence, the original petition. 4 OP(C) No.591 of 2023 3. Heard; Sri. K.V Sanosh, the learned Counsel appearing for the petitioners on admission. 4. The point is whether there is any impropriety or illegality in the impugned order. 5. An appreciation of the pleadings and materials on record reveals that the plaint was instituted on 4.12.2021. The petitioners entered appearance in the suit on 13.1.2022 and not 5.8.2022, as alleged in the original petition. 6. Admittedly, IA No.6/2023 was filed to receive the written statement on 27.2.2023, i.e., after one year. 7. By Sec.16 of the Commercial Courts Act, 2015 (in short, ‘Act’), the Code of Civil Procedure stands amended in its application to commercial disputes as specified in the Schedule to the Act. Consequently, 5 OP(C) No.591 of 2023 ## Orders V and VIII of the Code of Civil Procedure stand amended by the Schedule, which reads as follows: (A) In the Order V, in Rule 1, in sub-rule (1), for the second proviso, the following proviso shall be substituted, namely:- "Provided further that where the defendant fails to file the written statement within the said period of thirty days, he shall be allowed to file the written statement on such other days, as may be specified by the Court, for reasons to be recorded in writing and on payment of such costs as the Court deems fit, **but which shall not be later than one hundred twenty days from the date of service of summons and on expiry of one hundred twenty days from the date of service of summons, the defendant shall forfeit the right to file the written statement and the Court shall not allow the written statement to be taken on record."** (D) In Order VIII- (i) in Rule 1, for the proviso, the following proviso shall be substituted, namely:- "Provided that where the defendant fails to file the written statement within the said period of thirty days, he shall be allowed to file the written statement on such other day, as may be specified by the Court for reasons to be recorded in writing and on payment of such costs as the Court deems fit, **but which shall not be later than one hundred twenty days from the date of service of summons and on expiry** **of one hundred twenty days from the date of service of summons, the defendant shall forfeit the right to file the written statement and the Court shall not allow the written statement to be taken on record."** ## 8. The amended provision of the Code of Civil ## Procedure as per Section 16 of the Commercial Courts 6 OP(C) No.591 of 2023 Act mandates that the defendant(s) has to file the written statement within 120 days from the date of service of summons, failing which the defendant(s) right to file the written statement will stand forfeited and the Court shall not accept the written statement on record. 9. In **SCG Contracts India Pvt. Ltd v. K.S Chamankar Infrastructure Pvt. Ltd & Ors** [(2019) 12 SCC 210], the Honourable Supreme Court has held that the amended provisions of Orders V and VIII of the Code are mandatory. 10. **In Raj Process Equipments and Systems Pvt Ltd & Ors v. Honest Derivatives Pvt Ltd** [2022 LiveLaw (SC) 928] the Hon’ble Supreme Court has held that if the suit is filed before the Civil Court and then transferred to the Commercial Court, then the amended 7 OP(C) No.591 of 2023 provisions of Orders V and VIII of the Code are directory. 11. In the light of the amended provisions of the Code and its interpretation given by the Hon’ble Supreme Court, and the undisputed fact that the written statement was filed beyond the stipulated time period, I hold that the Commercial Court was justified in rejecting the application to accept the written statement. There is no error in the impugned order warranting interference by this Court under Article 227 of the Constitution of India. The original petition fails and is consequentially dismissed. sks/8.3.2023 SD/- **C.S.DIAS, JUDGE** 8 OP(C) No.591 of 2023 ## **APPENDIX OF OP(C) 591/2023** ## PETITIONER EXHIBITS P1-TRUE COPY OF PLAINT IN C.S.NO.490/2021 OF PRINCIPAL SUB COURT, ERNAKULAM DATED 04.12.2021 P2- TRUE COPY OF WRITTEN STATEMENT IN C.S.NO.490/2021 DATED 28.02.2023 P3 TRUE COPY OF PETITION TO ACCEPT WRITTEN STATEMENT DATED 28.02.2023 P4- CARBON COPY OF THE ORDER IN I.A.NO.6/2023 IN C.S.NO.490/2021 DATED 01.03.2023