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A.No.3751 of 2022 in C.S(COMM DIV). No.14 of 2022A.No.3751 of 2022 in C.S(COMM DIV). No.14 of 2022P.VELMURUGAN. J.This application is filed by the plaintiffs to condone the delay of 118 days in filing the reply written statement to be filed by the plaintiffs to the counter claim in the above suit.2. The case of the applicants/plaintiffs is that the respondent/defendant had filed written statement along with counter claim and this Court on 27.06.2022, had directed the applicants/plaintiffs to file written statement in answer to the counter claim, once the respondent/defendant files the Statement of Accounts. On 18.07.2022, both the learned counsels argued about the Statement of Accounts filed by the respondent/defendant and this Court also directed both the parties to exchange communications with regard to the product “HAVY 401”. This Court permitted the applicants/plaintiffs to file reply statement after the respondent/defendant complies with the Court's directions as per the order 1/7 https://www.mhc.tn.gov.in/judis A.No.3751 of 2022 in C.S(COMM DIV). No.14 of 2022of this Court, dated 27.06.2022. The respondent/defendant complied with the direction only on 12.08.2022 and therefore, there is a delay of 118 days in filing the reply statement to the counter claim filed by the respondent.3. The learned counsel for the applicants/plaintiffs submitted that the respondent/defendant had not filed the written statement with the counter claim within a period of 30 days and they filed the same beyond the period of 30 days even without filing any application either to condone the delay or extension of time. Without seeking the relief from this Court and without any application, they simply filed the written statement along with the counter claim after 30 days i.e. on 11.04.2022. The Registry ought not to have received the written statement, since the same was filed beyond the period of 30 days. Therefore, the applicants/plaintiffs have also filed an application to reject the counter claim and written statement under Order VII Rule 11 CPC. Though the written statement filed by the respondent/defendant is defective, the same was accepted. The period of 2/7 https://www.mhc.tn.gov.in/judis A.No.3751 of 2022 in C.S(COMM DIV). No.14 of 2022120 days starts only from the date on which the respondent/defendant filed the written statement and the counter claim. Since the written statement and counter claim filed by the respondent/defendant is not in order, there is no question of 120 days delay and the written statement/reply statement to the counter claim filed by the applicants/plaintiffs is within the time and thereofore, the reply statement of the applicants/plaintiffs may be accepted.4. The learned counsel for the applicants/plaintiffs vehemently contended that the respondent/defendant had not filed the written statement and the counter claim within a period of 30 days. Though an endorsement is made in the reverse side of the written statement that due to Covid-19, Covid-19 directions issued by the Hon'ble Supreme Court in Suo Motu Writ Petition(C) No.3 of 2020 is not applicable to the present case on hand, since the Covid-19 period suspending the limitation came to end on 28.02.2022 itself. The respondent/defendant filed the written statement only after 30 days i.e. on 11.04.2022 without filing any application to 3/7 https://www.mhc.tn.gov.in/judis A.No.3751 of 2022 in C.S(COMM DIV). No.14 of 2022condone delay in filing written statement. Therefore, the same has to be rejected. Once it is found that the written statement is not in order and not filed within the time, the reply to the counter claim has to be allowed. 5. The learned Senior Counsel appearing for the respondent/defendant submitted that though the respondent/defendant filed the written statement along with the counter claim on 11.04.2022, this Court recorded the same and the applicants/plaintiffs also received the copy of the same on the same day i.e. on 11.04.2022. The applicants/plaintiffs ought to have filed the written statement/reply to the counter claim within a period of 30 days from thereon. At any cost, they should have filed the reply to the counter claim within a period of 120 days with an application to condone the delay. Since the reply to the counter claim is filed beyond the period of 120 days, the applicants/plaintiffs have been forfeited to file the reply to the counter claim. In this regard, the First Bench of this Court has also held that the reply to the counter claim has to 4/7 https://www.mhc.tn.gov.in/judis A.No.3751 of 2022 in C.S(COMM DIV). No.14 of 2022be filed within 30 days from the date of receipt of the counter claim. At any cost, within 90 days they ought to have filed the reply to the counter claim on application or written permission from the Court. In this case, since the present application is filed beyond the period of 120 days, the same is liable to the rejected. 6. Heard both sides and perused the materials available on record.7. Admittedly, the applicants/plaintiffs have filed present suit and after service of summons, the respondent/defendant filed the written statement along with counter claim on 11.04.2022, whereas, the applicants/plaintiffs have filed the reply to the counter claim only on 22.08.2022 which is beyond the period of 120 days. Therefore, as held by the First Bench of this Court, the applicants/plaintiffs have not filed the reply to the counter claim within 30 days or 120 days with the permission of the Court. Since the reply to the counter claim filed is beyond 120 days, the application is liable to be dismissed.5/7 https://www.mhc.tn.gov.in/judis A.No.3751 of 2022 in C.S(COMM DIV). No.14 of 20228. As per the Commercial Courts Act, the applicants/plaintiffs ought to have filed the reply to the counter claim within 30 days and in any case, ought to have filed the reply to the counter claim within 120 days with an application to condone the delay or extension of time as the case may be and without getting permission from the Court, they cannot the file the reply to counter claim. Since the reply to the counter claim is filed beyond the period of 120 days, this application is liable to be dismissed.9. Accordingly, this application is dismissed.10. However, it is open to the plaintiff to cross-examine the defendant witness with respect to the counter claim.02.04.2024(1/2)Ksa-26/7 https://www.mhc.tn.gov.in/judis A.No.3751 of 2022 in C.S(COMM DIV). No.14 of 2022P.VELMURUGAN, J.ksa-2A.No.3751 of 2022 in C.S(COMM DIV). No.14 of 202202.04.2024(1/2)7/7
A.No.3751 of 2022 in C.S(COMM DIV). No.14 of 2022A.No.3751 of 2022 in C.S(COMM DIV). No.14 of 2022P.VELMURUGAN. J.This application is filed by the plaintiffs to condone the delay of 118 days in filing the reply written statement to be filed by the plaintiffs to the counter claim in the above suit.2. The case of the applicants/plaintiffs is that the respondent/defendant had filed written statement along with counter claim and this Court on 27.06.2022, had directed the applicants/plaintiffs to file written statement in answer to the counter claim, once the respondent/defendant files the Statement of Accounts. On 18.07.2022, both the learned counsels argued about the Statement of Accounts filed by the respondent/defendant and this Court also directed both the parties to exchange communications with regard to the product “HAVY 401”. This Court permitted the applicants/plaintiffs to file reply statement after the respondent/defendant complies with the Court's directions as per the order 1/7 https://www.mhc.tn.gov.in/judis A.No.3751 of 2022 in C.S(COMM DIV). No.14 of 2022of this Court, dated 27.06.2022. The respondent/defendant complied with the direction only on 12.08.2022 and therefore, there is a delay of 118 days in filing the reply statement to the counter claim filed by the respondent.3. The learned counsel for the applicants/plaintiffs submitted that the respondent/defendant had not filed the written statement with the counter claim within a period of 30 days and they filed the same beyond the period of 30 days even without filing any application either to condone the delay or extension of time. Without seeking the relief from this Court and without any application, they simply filed the written statement along with the counter claim after 30 days i.e. on 11.04.2022. The Registry ought not to have received the written statement, since the same was filed beyond the period of 30 days. Therefore, the applicants/plaintiffs have also filed an application to reject the counter claim and written statement under Order VII Rule 11 CPC. Though the written statement filed by the respondent/defendant is defective, the same was accepted. The period of 2/7 https://www.mhc.tn.gov.in/judis A.No.3751 of 2022 in C.S(COMM DIV). No.14 of 2022120 days starts only from the date on which the respondent/defendant filed the written statement and the counter claim. Since the written statement and counter claim filed by the respondent/defendant is not in order, there is no question of 120 days delay and the written statement/reply statement to the counter claim filed by the applicants/plaintiffs is within the time and thereofore, the reply statement of the applicants/plaintiffs may be accepted.4. The learned counsel for the applicants/plaintiffs vehemently contended that the respondent/defendant had not filed the written statement and the counter claim within a period of 30 days. Though an endorsement is made in the reverse side of the written statement that due to Covid-19, Covid-19 directions issued by the Hon'ble Supreme Court in Suo Motu Writ Petition(C) No.3 of 2020 is not applicable to the present case on hand, since the Covid-19 period suspending the limitation came to end on 28.02.2022 itself. The respondent/defendant filed the written statement only after 30 days i.e. on 11.04.2022 without filing any application to 3/7 https://www.mhc.tn.gov.in/judis A.No.3751 of 2022 in C.S(COMM DIV). No.14 of 2022condone delay in filing written statement. Therefore, the same has to be rejected. Once it is found that the written statement is not in order and not filed within the time, the reply to the counter claim has to be allowed. 5. The learned Senior Counsel appearing for the respondent/defendant submitted that though the respondent/defendant filed the written statement along with the counter claim on 11.04.2022, this Court recorded the same and the applicants/plaintiffs also received the copy of the same on the same day i.e. on 11.04.2022. The applicants/plaintiffs ought to have filed the written statement/reply to the counter claim within a period of 30 days from thereon. At any cost, they should have filed the reply to the counter claim within a period of 120 days with an application to condone the delay. Since the reply to the counter claim is filed beyond the period of 120 days, the applicants/plaintiffs have been forfeited to file the reply to the counter claim. In this regard, the First Bench of this Court has also held that the reply to the counter claim has to 4/7 https://www.mhc.tn.gov.in/judis A.No.3751 of 2022 in C.S(COMM DIV). No.14 of 2022be filed within 30 days from the date of receipt of the counter claim. At any cost, within 90 days they ought to have filed the reply to the counter claim on application or written permission from the Court. In this case, since the present application is filed beyond the period of 120 days, the same is liable to the rejected. 6. Heard both sides and perused the materials available on record.7. Admittedly, the applicants/plaintiffs have filed present suit and after service of summons, the respondent/defendant filed the written statement along with counter claim on 11.04.2022, whereas, the applicants/plaintiffs have filed the reply to the counter claim only on 22.08.2022 which is beyond the period of 120 days. Therefore, as held by the First Bench of this Court, the applicants/plaintiffs have not filed the reply to the counter claim within 30 days or 120 days with the permission of the Court. Since the reply to the counter claim filed is beyond 120 days, the application is liable to be dismissed.5/7 https://www.mhc.tn.gov.in/judis A.No.3751 of 2022 in C.S(COMM DIV). No.14 of 20228. As per the Commercial Courts Act, the applicants/plaintiffs ought to have filed the reply to the counter claim within 30 days and in any case, ought to have filed the reply to the counter claim within 120 days with an application to condone the delay or extension of time as the case may be and without getting permission from the Court, they cannot the file the reply to counter claim. Since the reply to the counter claim is filed beyond the period of 120 days, this application is liable to be dismissed.9. Accordingly, this application is dismissed.10. However, it is open to the plaintiff to cross-examine the defendant witness with respect to the counter claim.02.04.2024(1/2)Ksa-26/7 https://www.mhc.tn.gov.in/judis A.No.3751 of 2022 in C.S(COMM DIV). No.14 of 2022P.VELMURUGAN, J.ksa-2A.No.3751 of 2022 in C.S(COMM DIV). No.14 of 202202.04.2024(1/2)7/7