The Supreme Court, in its recent judgment in A.K. Ghosh & Company and Others v. Biman Bose and Others¹, considered whether the mandatory time frame prescribed by the proviso to Order VIII Rule 1 of the Code of Civil Procedure, 1908 applies to the filing of a written statement by a plaintiff to a counter-claim raised by a defendant in a suit governed by the Commercial Courts Act, 2015.

Facts of the Case
The Appellants had instituted a commercial suit before the Calcutta High Court for recovery of amounts allegedly payable towards the supply of printing paper.

The contesting Defendants filed their written statement and raised a counter-claim. Copies of the written statement and the counter-claim were served upon the Advocate-on-Record for the Plaintiffs on 18th July 2023.

However, it was only on 15th March 2024, after the expiry of 238 days, that the Plaintiffs filed an Application seeking leave to file their written statement to the counter-claim.

The learned Single Judge dismissed the Application. The Division Bench dismissed the Appeal both on merits and on the ground that it was not maintainable. The Plaintiffs thereafter approached the Supreme Court.

Contentions of the Plaintiffs
The Plaintiffs contended that the stipulated period of 120 days for filing a written statement by a defendant could not be applied to the filing of a written statement by a plaintiff to a counter-claim in a commercial suit. It was submitted that Order VIII Rule 6A(3) of the CPC permitted the plaintiff to file a written statement to a counter-claim within such period as may be fixed by the Court. As no time frame had been fixed by the learned Judge, the Plaintiffs contended that they could not be denied an opportunity to respond to the counter-claim.

Counter-Claim Is on Par With a Plaint
The Supreme Court noted that the concept of a counter-claim was introduced to reduce multiplicity of proceedings by permitting a defendant, who had an independent claim against the plaintiff, to raise the same in the plaintiff’s Suit instead of instituting a separate Suit.

Under Order VIII Rule 6A(2), a counter-claim has the same effect as a cross-suit, enabling the Court to pronounce a final judgment in the same Suit both on the original claim and on the counter-claim.

Order VIII Rule 6A(4) further provides that a counter-claim shall be treated as a plaint and shall be governed by the rules applicable to plaints.

The Court, therefore, held that a counter-claim filed by a defendant is on par with a plaint. The plaintiff, in relation to the counter-claim, occupies the position of a defendant and the response filed by the plaintiff is a written statement.

Application of Order VIII Rule 6G
Order VIII Rule 6G provides that the rules relating to a written statement by a defendant shall apply to a written statement filed in answer to a counter-claim.

The Supreme Court held that the phrasing of Order VIII Rule 6G does not permit the rules applicable to a written statement to be restricted only to its form or contents.

The provision unequivocally applies the rules relating to a written statement by a defendant to a written statement filed in answer to a counter-claim.

The rules so applicable include the proviso to Order VIII Rule 1, as substituted in its application to commercial disputes by Section 16 of the Commercial Courts Act.

Time for Filing the Written Statement
The proviso to Order VIII Rule 1 provides that a written statement must ordinarily be filed within 30 days from the date of service of summons.

The Court may, for reasons to be recorded in writing and upon payment of costs, permit the written statement to be filed on another date. However, such date cannot be later than 120 days from the date of service of summons.

Upon expiry of 120 days, the right to file the written statement stands forfeited and the Court cannot allow the written statement to be taken on record.

The Supreme Court held that similar time constraints apply to the filing of a written statement by a plaintiff to a counter-claim raised by a defendant in a commercial Suit.

Effect of the Court Not Fixing a Time
The Supreme Court held that Order VIII Rule 6A(3) enables the Court to fix the time within which the plaintiff may file a written statement to the counter-claim.

However, where the Court does not fix such time, Order VIII Rule 6G applies the proviso to Order VIII Rule 1 and fixes the temporal outer limit beyond which the written statement cannot be filed.

The Court observed that any other interpretation would mean that, where the Court fails to fix time, the plaintiff would be free to devise his own time schedule for filing the written statement. This could not have been the intendment of the statute.

The Court further held that interpreting the provisions otherwise would render one or the other provision unworkable.

The Supreme Court did not agree with the view taken by the Bombay High Court in Dattaram Krishnanath Pednekar & Ors. v. Pandurang K. Pednekar & Ors., (2010) 7 Mah LJ 386 : 2010 (4) ALL MR 525 and Mrs. Shalini Nunes Mascarenhas & Ors. v. Mr. Trevor Nunes & Anr., 2009 (1) Goa L.R. 457.

In those decisions, it had been held that the rules referred to in Order VIII Rule 6G related to the contents of a written statement and not to the time limit for filing a written statement to a counter-claim.

The Supreme Court held that the language of Order VIII Rule 6G does not permit such a restriction to be read into the provision.

It further held that subjecting a defendant’s written statement to the proviso to Order VIII Rule 1 while subjecting a plaintiff’s written statement to a counter-claim only to Order VIII Rule 6A(3) would defeat the purpose of the amended proviso in its application to commercial suits.

Scheme of the Provisions
The Supreme Court summarised the scheme of the provisions as follows:

The Court may initially fix a time frame for filing a written statement to a counter-claim under Order VIII Rule 6A(3).

The time may be extended upon an Application by the plaintiff under the proviso to Order VIII Rule 1 read with Order VIII Rule 6G, subject to reasons being recorded and payment of costs.

However, the Court’s discretion to grant further time extends only to a maximum period of 120 days from the date of service of summons or receipt of the counter-claim.

Decision of the Supreme Court
The Supreme Court held that a plaintiff in a commercial Suit is bound by the mandate of the proviso to Order VIII Rule 1. The plaintiff must ordinarily file a written statement to the counter-claim within 30 days from the date of service of summons or receipt of the counter-claim. Where sufficient cause is shown, the Court may extend the time for reasons to be recorded in writing and upon payment of appropriate costs. However, such extension cannot be granted beyond 120 days from the date of service of summons upon the plaintiff or receipt of the counter-claim by the plaintiff. The Supreme Court accordingly held that the learned Single Judge and the Division Bench were justified in rejecting the Plaintiffs’ request to file their written statement after a delay of 238 days. The Appeals were dismissed.

By - Chaitanyaa Bhandarkar