Bombay High Court Upholds Order Proceeding as Undefended in Commercial Suit After Defendant Failed to File Written Statement Within 120 Days. Mandatory 120-Day Limitation for Written Statement Under Order VIII Rule 1 CPC as Amended by Commercial Courts Act, 2015 Bars Condonation of Delay and Validates Service at Policy Address.

Interim application in a commercial suit involving an insurance claim, seeking recall of an order proceeding as undefended and condonation of delay in filing written statement.

Defendant sought recall/setting aside of order dated 13 February 2023 and permission to file written statement by condoning the delay.

Defendant failed to file written statement within 120 days from service of writ of summons; court recorded no written statement and proceeded as undefended; defendant sought to set aside that order and file written statement.

Delhi High Court proceedings were withdrawn by plaintiff with liberty after defendant raised jurisdictional objection; written statement filed in Delhi HC was directed to be returned. On 13 February 2023, Bombay High Court recorded no written statement filed within 120 days and directed the suit to proceed as undefended.

Whether the 120-day period for filing written statement in a commercial suit is mandatory and cannot be extended. Whether service of writ of summons at the divisional office address (as shown in insurance policy and cause title) is valid, despite defendant claiming legal matters handled by regional office. Whether proceedings before Bombay High Court are a continuation of Delhi High Court proceedings, thereby exempting the defendant from the limitation for filing written statement. Whether order dated 13 February 2023 should be recalled and delay condoned.

Defendant argued legal matters handled by Mumbai Regional Office II, writ of summons not traced, search failed, and who accepted service unknown. Defendant argued earlier Delhi High Court suit withdrawn with liberty, written statement filed there, so Bombay proceedings are continuation; no fresh limitation; delay should be condoned. Defendant argued good case on merits, balance of convenience in its favour, and irreparable harm if not allowed to file written statement. Plaintiff argued service effected at address in insurance policy and cause title; cannot claim internal office allocation as ground for invalid service. Plaintiff argued written statement not filed within 120 days; order dated 13 February 2023 correctly passed; 120-day period cannot be extended; relied on Mira Gehani and SCG Contracts.

In a commercial suit, the written statement must be filed within 30 days, extendable up to 120 days from the date of service of summons; beyond 120 days the right stands forfeited and the court has no discretion to condone the delay. Service of summons at the address shown in the insurance policy and the cause title constitutes valid service; the internal allocation of legal work within a company is irrelevant. The provisions of Order V Rule 1 and Order VIII Rule 1 CPC as amended by the Commercial Courts Act, 2015 are mandatory.

The first submission that the writ of summons was not served on the Regional office which handles legal matters, in my view is certainly not tenable in as much as undisputedly the service of writ of summons has been effected on the Defendant on 26th August, 2022 at the address of the Defendant which is not only in the Insurance Policy at page 51 of the Plaint but also the same address as in the cause title of this Application and, that it cannot be a ground on behalf of the Defendant that the service ought to have been effected at the Regional Office and not the Divisional Office which is an internal matter of the Defendant-Company. the 120 days for filing of written statement in Commercial Suits commence from the date of receipt of the summons by the Defendant and that the said provision has been introduced in order to ensure expeditious disposal of Commercial Suits and in order to save time of this Court and that the same cannot be extended under any circumstances. the period 120 days cannot be in any manner extended in a Commercial Suit.

Plaintiff initially filed suit in Delhi High Court; defendant raised jurisdictional objection; plaintiff withdrew with liberty to file in proper court; written statement previously filed in Delhi HC was directed to be returned. Thereafter plaintiff filed Commercial Suit No. 201 of 2022 in Bombay High Court. Writ of summons served on defendant on 26 August 2022. No written statement filed within 120 days, i.e., by 24 December 2022. On 13 February 2023, court recorded no written statement filed and proceeded as undefended suit. Defendant filed Interim Application (L) No. 27197 of 2023 seeking recall and condonation. Application heard on 10 April 2024 and 22 April 2024; court dismissed application.

• Code of Civil Procedure, 1908: Order V Rule 1, Order VIII Rule 1, Order VIII Rule 10
• Commercial Courts, Commercial Division and Commercial Appellate Division of High Courts Act, 2015: