AIS Glass Solutions Limited vs Moser Baer Solar Limited & Ors

Manmohan, J

On the last date of hearing, this Court had directed the defendant no. 2 to be personally present in Court. Today, learned counsel for the defendant no.

2 states that the defendant no. 2 is seriously unwell and is suffering from oral cancer and a pacemaker has also been installed.

Keeping in the aforesaid averments, the defendant no. 2 is exempt from personal appearance.

I.A. 5923/2017

It is pertinent to mention that present application has been filed on behalf of the defendant no. 1 seeking extension of time for filing the written

statement.

Mr. K.P.S. Kohli, learned counsel for the defendant no. 1/applicant submits that after coming into force of Commercial Courts, Commercial

Division and Commercial Appellate Division of High Court Act, 2015 (for short “the Actâ€), this Court can and should prescribe a new time period

within which the defendant can file a written statement. In support of his submissions, he relies upon Proviso to Section 15(4) of the Act, 2015, which

is reproduced hereinbelow:-

“15. Transfer of pending cases.â€

xxxx xxxx xxxx xxxx

(4) The Commercial Division or Commercial Court, as the case may be, may hold case management hearings in respect of such transferred

suit or application in order to prescribe new timelines or issue such further directions as may be necessary for a speedy and efficacious

disposal of such suit or application in accordance with Order XIV-A of the Code of Civil Procedure, 1908 (5 of 1908):

Provided that the proviso to sub-rule (1) of Rule 1 of Order V of the Code of Civil Procedure, 1908 (5 of 1908) shall not apply to such

transferred suit or application and the court may, in its discretion, prescribe a new time period within which the written statement shall be

filed.â€​

Mr. Kohli relies upon judgment of a Coordinate Bench of this Court in Telefonaktiebolaget L.M. Ericsson Vs. Lava International Limited, 2015

SCC OnLine Del 13903 wherein it has been held as under:-

“17. Thus, there is an exemption provided under the Commercial Courts Ordinance for matters that were filed prior to the notification of

the Ordinance, whereby the Court has the discretion to set a case management timeline and extend the time period for completion of

pleadings including the written statement.â€​

Mr. Kohli points out that present application was filed by the defendant no. 1 within one hundred twenty days period from the date the proceeding

filed under Section 22 of the Sick Industrial Companies (Special

A perusal of the paper book reveals that the present suit was filed on 7th May, 2015. On 12th June, 2015, the defendant no. 1 was registered under

Section 15(1) of SICA by Board for Industrial & Financial Reconstruction (BIFER) and consequently was entitled for protection under Section 22 of

SICA even prior to the date it received summons and the paper book.

On 21st September, 2016, the present suit was re-numbered as a commercial suit.

On 1st February, 2016, proceedings initiated by the defendant no. 1 under the SICA abated and the protection under Section 22 of SICA cease to

apply.

Admittedly, after thirty days, extendable upto ninety days period of limitation prescribed for filing of written statement, the defendant no. 1 filed the

present application on 16th March, 2017 being I.A. 5923/2017 seeking extension of time by two weeks to file the written statement. It is pertinent to

mention that a Coordinate Bench of this Court in OKU Tech Private Limited Vs. Sangeet Agarwal & Ors., CS(OS) 3390/2015 has held that a Court

in a commercial suit cannot extend the time for filing the written statement beyond one hundred twenty days after service of summons.

In fact, the written statement was filed on 7th July, 2017, i.e., more than eight months after the protection under Section 22 of SICA had ceased to

apply and ninety eight days after the time of two weeks sought had expired.

This Court is also of the opinion that if the defendant no. 1’s submission is accepted, it would mean that a

defendant in an ordinary suit who has not filed its written statement for three to four years, would get a right to file the written statement after coming

into force of the Act, 2015.

The intention of the Legislature while passing the Act, 2015 was to expedite the hearing and disposal of the commercial suits. If the submission

advanced by learned counsel for the defendant no. 1 is accepted it would negate the very intent behind the passing of the Act, 2015.

This Court is also of the view that filing an application seeking extension of time to file a written statement does not stop the clock.

Since in the present case the written statement has been filed eight months after the protection under Section 22 of SICA had lapsed, this Court is

of the view that the defendant no. 1’s written statement cannot be taken on record.

Consequently, present application for extension of time to file written statement is dismissed and the Registry is directed to return the written

statement to defendant no. 1.

CS(COMM) 1335/2016

Learned counsel for the plaintiff prays for and is permitted to file additional documents as well as an application under Order 8 Rule 10 CPC.

Accordingly, list before the Joint Registrar on 15th December, 2017.