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TMI Blog2022 (1) TMI 499X X X X Extracts X X X X X X X X Extracts X X X X ..... s, the products were supplied after due testing and they were premium quality products. The defendant failed to make payment leading to institution of the the suit by the plaintiff. The details of the suit controversy is not required to be set out in extenso. 3.1. The respondent was served with the summons on 30.1.2020. The appearance was filed and time was prayed for on 17.2.2020 by the defendant to file the written statement. The written statement was not filed for long period. Thereafter, it was tendered on 20.3.2021 together with application of delay. 3.2. Special provisions came to be engrafted in the statute with in regard to the proceedings of commercial suits including in respect of the limitation to file written statement. The Commercial Courts, Commercial Division and Commercial Appellate Division of High Courts Act, 2015 came into force on 23.10.2015 bringing certain amendments to the Code of Civil Procedure. In Order V, Rule 1, sub-rule (1), for the second Proviso, the following Proviso came to be substituted: "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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Court may employ for reasons to be recorded in writing and payment of such costs as it deems fit to allow such written statement 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 statement and the Court shall not allow the written statement to be taken on record. This is further buttressed by the proviso in Order VIII Rule 10 also adding that the Court has no further power to extend the time beyond this period of 120 days." 4. The phase from March, 2020 was marked by spread of COVID-19 pandemic. The Supreme Court took note of the situation and the resultant difficulties which may be faced by the litigants across the country in filing their petitions and other proceedings within the period of limitation. Taking suo motu cognizance about the extension of limitation in suo motu Writ Petition (Civil) No. 3 of 2020, the limitation period was directed to be extended exercising powers under Article 142 read with Article 141 of the Constitution. 4.1. The relevant part of the order is extracted herein below. "To obviate such difficulties and to ensure that law ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fy the contentions in order dated 8.3.2021, however, final directions were issued to provide that the period from 15.3.2020 till 2.10.2021, shall stand excluded and the balance period of limitation remaining as on 15.3.2021, if any, shall be available with effect from 3.10.2021. 4.4. The directions containing in paragraph No. 8 of the aforesaid order are as under. "8. Therefore, we dispose of the M.A. No. 665 of 2021 with the following directions:- I. In computing the period of limitation for any suit, appeal, application or proceeding, the period from 15.03.2020 till 02.10.2021 shall stand excluded. Consequently, the balance period of limitation remaining as on 15.03.2020, if any, shall become available with effect from 03.10.2021. II. In cases where the limitation would have expired during the period between 15.03.2020 till 02.10.2021, notwithstanding the actual balance period of limitation remaining, all persons shall have a limitation period of 90 days from 03.10.2021. In the event the actual balance period of limitation remaining, with effect from 03.10.2021, is greater than 90 days, that longer period shall apply. III. The period from 15.03.2020 till 02.10.2021 shall ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s. Reckoned accordingly, as the service of the summons was on 30.1.2020, the period of thirty days within which the respondent-defendant could have filed written statement, expired on 28.2.2020. This date fell prior to the date of 15.3.2021 stipulated by the Supreme Court to start run the extension in the limitation period. Thus, the period of limitation for filing written statement had already expired. There will be no benefit of Apex Court orders extending the limitation in the present case. 6. A vehement contention was raised by learned advocate for the respondent that total period within which the written statement could be filed was provided to be one hundred twenty days. It was submitted that this total period would stand extended by virtue of orders passed by the Supreme Court extending the period suo motu. It was submitted that the date of 15.3.2020 from which the period of limitation extended fell within the total period of one hundred twenty days, therefore it was permissible to file the written statement. From the last date of extension provided by Supreme Court which was 3.10.2021, direction No. 2 of order dated 23.9.2021 was pressed into service to submit that the per ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 4 cannot be construed to mean anything other than the period of limitation. Any period beyond the prescribed period, during which the Court or Tribunal has the discretion to allow a person to institute the proceedings, cannot be taken to be "prescribed period". (The emphasis is in the paragraphs extracted)" 7. The submission proceeds on a misconceived notion about concept of limitation. The limitation for filing written statement provided in Order VIII Rule 1 Proviso is thirty days and not one hundred twenty days. The additional period of ninety days is allowed to be utilized for filing the written statement on showing sufficient cause as grace period. It is not the limitation per se. The ninety days additional period allowed to the defendant, it comes into play, if the defendant had failed to file written statement within the prescribed period of thirty days. The ninety days are the additional window following the prescribed limitation in which the defendant may show the sufficient cause to be considered by the Court, to be allowed to file written statement. 8. In Sagufa Ahmed and Others Vs. Upper Assam Polywood Products Private Limited and Others, [ (2021) 2 SCC 317], the Su ..... X X X X Extracts X X X X X X X X Extracts X X X X
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