SC Order Extending Limitation Applies Only To First 30 Days For Filing Written Statement In Commercial Court Cases: Calcutta High Court

The Calcutta High Court has observed that the order of the Supreme Court dated 23rd March, 2020 extending limitation period would apply only to the first 30 days for filing written statement under Order VIII Rule 1 of the Code of Civil Procedure and not to the additional 90 days which follows the prescribed period for matters covered by the Commercial Courts Act, 2015.

The 90 days additional window following the prescribed period is the additional period and not the prescribed period of limitation under Order VIII Rule 1 CPC, Justice Moushumi Bhattacharya held.

In this case, the summons was served on the defendant on 2nd December, 2019. 30 days expired on 2nd January, 2020. The application for extension of time was filed by the defendant on 5th February, 2020 seeking 8 weeks time for preparing and filing the written statement. The defendant relied on a recent order of the Supreme Court in which it observed that its order of 23rd March 2020 extending limitation for filing in courts and tribunals is still operative.

The question considered by the court was (1) whether the initial period of 30 days is the prescribed period for the purposes of limitation and (2) whether the defendant can take refuge under the order of 23rd March, 2020 passed by the Supreme Court. Answering the first question, the court said:

"The words of the amendment make it clear that the additional period allowed to a defendant comes into play only after the defendant has failed to file its written statement within the prescribed period under Order VIII Rule 1 which is 30 days. Hence, the 90 days additional window following the prescribed period is the additional period and not the prescribed period of limitation under Order VIII Rule 1."

The court noted that, in Sagufa Ahmed Vs. Upper Assam Plywood Products Pvt.Ltd,  the Supreme Court had clarified its earlier order that the extension given was only confined to the prescribed period of limitation and cannot be construed to mean the period beyond the prescribed period which allows a Court to exercise its discretion on whether to allow or refuse the period in addition to the prescribed period. The bench observed:

"This Court is therefore of the view that the order of the Supreme Court dated 23rd March, 2020 would apply only to the first 30 days for filing written statement under Order VIII Rule 1 of The CPC and not to the additional 90 days which follows the prescribed period for matters covered by the 2015 Act. Besides the orders of the Supreme Court should be seen in their specific factual context and that the orders were passed in exercise of the power under Article 142 of The Constitution of India. The order dated 18th September, 2020 also restricts the window to vigilant litigants. In this case the application was filed beyond the prescribed period of 30 days."

Holding thus, the court said that it does not find any ground either provided under Order VIII Rule 1 or the amendment thereto or by the orders of the Supreme Court for allowing the application for extension of time to file the written statement.

Case: SIDDHA REAL ESTATE DEVELOPMENT PRIVATE LIMITED vs. GIRDHAR FISCAL SERVICES PRIVATE LIMITED [CS 245 of 2019]
Coram: Justice Moushumi Bhattacharya
Counsel:  Adv Zeeshan Haque, Adv Meghajit Mukherjee

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