Civil Procedure Code, 1908
Proviso to Rule 1 of Order 5 as well as Rule 1 of Order 8 as amended by the Commercial Court's Act—Timelines to file of written statement—Commercial suit—Time period as prescribed under the amended provisions of CPC as per the Commercial Courts Act, are strict and mandatory and no leverage can be given to the defaulting party—Requests for condonation of delay beyond 120 days shall not be entertained by the Commercial Court.
[Paras 33 & 34]
Order 5 Rule 5—Summons to be either to settle issues or for final disposal—Once the trial court concluded, upon the perusal of its record, that summons under Rule 5 of Order 5 of CPC were never issued in accordance with prescribed procedure, the failure thereof cannot be detrimental to the rights provided to the defendant.
[Para 39]
Order 8 Rule 10—Order allowing application under Order 8 Rule 10 and dismissing application under Order 8 Rule 1 of CPC filed by petitioner/defendant—Challenged—Commercial suit—Trial Court never passed orders issuing summons to petitioner—In the absence of issuance of valid summons, it cannot be assumed that the petitioner had the knowledge of the obligation to file the written statement within a period of 30 days from the date of the service of summons—Since no such summons were ever issued, the question of not having filed the written statement within 30 days period or the extended period of 120 days does not arise and liability cannot be fastened upon petitioner—Failure to file written statement within the stipulated period or even the extended period cannot to be detrimental to the interest of the petitioner/defendant—In view of the maxim "Actus Curaie Neminem Gravabit" too, the impugned order is unsustainable in law—Written statement filed by petitioner is directed to be taken on record with further directions to trial court to proceed in accordance with law and as per the provisions of CPC as amended by the Commercial Courts Act.
[Paras 40 to 46]
Commercial Suits
Notice of summons—Mandatory endorsement—Direction issued to Civil Courts adjudicating commercial suits, while issuing summons of the suit to the defendant, to necessarily incorporate the endorsement that, "defendant should file his written statement of defence within 30 days from the date of service/receipt of summons" on the notice of summons. [Civil Procedure Code, 1908, Order 5 Rule 5]
[Para 35]
Maxim
Actus Curaie Neminem Gravabit—No person can be prejudiced for the mistake of the court—Doctrine applies on all fours to the admitted facts in so far as the mistake on the part of the trial court is concerned.
[Para 40]