A 3-judge bench of the Supreme Court, in Desh Raj v. Balkishan (D) through proposed LR (2020 SCC Online SC 49), affirmed and reiterated the two distinct regimes under the Code of Civil Procedure, 1908 ("Code") for filing of written statements. The Supreme Court held that while mandatory timelines prescribed for commercial suits could not be applied to non-commercial suits, timelines provided for non-commercial suits should not be misconstrued to delay filing written statements and each case will have to be decided on its own merit.

For context, the district court had forfeited the appellant's right to file its written statement in a property dispute between the parties, on account of multiple delays in filing its defence. The appellant had filed a revision petition before the Delhi High Court challenging the district court's order. Relying on a coordinate bench's decision in Oku Tech Pvt Ltd. v. Sangeet Agarwal and Others1 , the Delhi High Court dismissed the revision petition holding that the outer limit of 120 days for filing a written statement was mandatory.

While hearing an appeal against the Delhi High Court's order, the Supreme Court clarified that Oku Tech was in the context of a commercial suit and the ratio of that judgment could not be applied to a non-commercial suit like the present one. The Supreme Court also differentiated the timelines and principles applicable to a commercial suit viz-a-viz a non-commercial one, and clarified that the amended Order VIII Rule 1 of the Code (as amended by Section 16 of the Commercial Courts Act, 2015) provides for a stricter 120 days' timeline for commercial suits, beyond which the right of the defendant to file its defence stands forfeited.

Relying on Atcom Technologies Ltd. v. Y.A. Chunawala and Co.2 , the Supreme Court clarified that the unamended Order VIII Rule 1 of the Code provides for a 90-day outer limit for filing written statement, and does not do away with the inherent discretion of courts to condone delays, if sufficient grounds exist. However, such discretion could not be unfettered or misinterpreted to prolong a suit by seeking innumerable condonations. Only in cases of extreme hardship or delays occurring due to factors beyond the control of parties, despite proactive diligence, could the inherent discretion of the court be exercised in granting extension of time in filing written statements.

Lastly, the Supreme Court, while exercising the discretion and granting the appellant a last opportunity to file his defence, cautioned that this case should not be cited as a precedent. The intent is thus clear. Even in non-commercial suits, a defendant should diligently file its defence within the stipulated timeline (i.e. 30 days extendable by 90 days) and it is only in exceptional cases where courts should (and would) exercise discretion to extend this statutory timeline. With this, the law as laid down in Kailash v. Nankhu3 and Salem Advocates Bar Association, Tamil Nadu v. Union of India4 continue to hold field for non-commercial suits.

Footnotes

1 2016 SCC Online Del 6601

2 (2018) 6 SCC 639

3 (2005) 4 SCC 480

4 (2005) 6 SCC 344

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