The High Court
Case Details
Signature Not Verified Digitally Signed Signed by: MANAS KUMAR PANDA Designation: Personal Assistant Reason: Authentication Location: OHC, Cuttack Date: 01-Sep-2025 18:42:55 IN THE HIGH COURT OF ORISSA AT CUTTACK CMP No.256 of 2025 (In the matter of an application under Article 227 of the Constitution of India) Right Step Media Services Private Ltd., represented through its Director Rajendra Swami @ Rajendra Kumar Swami and Anr. …. Petitioner -versus- Fast Communication, represented through its Proprietor Trinayan Rath and Others … Opposite Parties Advocate(s) appeared in this case:- For Petitioner : Mr. D.P. Mohanty, Advocate For Opp. Parties : Mr. B. Bhuyan, Senior Advocate along with Mr. S.S. Bhuyan, Advocate CORAM: JUSTICE B.P. ROUTRAY JUDGMENT 26th August, 2025 B.P. Routray, J. 1. Heard Mr. D.P. Mohanty, learned counsel for the Petitioners and Mr. B. Bhuyan, learned senior counsel along with Mr. S.S. Bhuyan, learned counsel for the Opposite Parties. CMP No.256 of 2025 Page 1 of 10 Signature Not Verified Digitally Signed Signed by: MANAS KUMAR PANDA Designation: Personal Assistant Reason: Authentication Location: OHC, Cuttack Date: 01-Sep-2025 18:42:55 2. Present CMP is directed against impugned order dated 25th October, 2024 of learned Senior Civil Judge (Commercial) Court, Cuttack passed in C.S. (III) No.255 of 2019, wherein the prayer of the
Facts
Defendants to accept their written statement has been rejected. 3. Opposite Parties – Plaintiffs filed the suit in the year 2019 but the summons on the Defendants (present Petitioners) could not be made sufficient till 2023. As a result of non-service of summons on the Defendants in regular course, the substituted service of notice by way of paper publication was made on 9th February, 2023, fixing the date of appearance to 20th March, 2023. On 20th March, 2023 the Defendants were set ex-parte due to their non-appearance before the court. However, they entered appearance in the suit on 13th April, 2023 and filed a petition under Order 9 Rule 7 to set aside the order setting them ex parte. Pending said petition filed under Order 9 Rule 7 C.P.C., the Defendants filed a memo on 6th February, 2024 seeking a direction to the Plaintiffs for service of copy of the plaint on them. The court allowed said prayer on the same date and the copy of the plaint was filed by the counsel for Plaintiffs in court on 21st February, 2024. However, said copy of the plaint could only be served on the Defendants on 28th June, 2024 and they filed the written statement on CMP No.256 of 2025 Page 2 of 10 Signature Not Verified Digitally Signed Signed by: MANAS KUMAR PANDA Designation: Personal Assistant Reason: Authentication Location: OHC, Cuttack Date: 01-Sep-2025 18:42:55 21st September, 2024. But the trial court rejected acceptance of such written statement by the Defendants on the ground ‘beyond the statutory period’. 4. It is to be reminded here that the dispute is a commercial dispute pending before the commercial court. Order 8 Rule 1, CPC in respect of Commercial Courts Rules is as follows- “Provided that where the defendant fails to file the written statement within the said period of thirty days, he shall be allowed to file the written statement on such other day, as may be specified by the court, for reasons to be recorded in writing and on payment of such costs as the court deems fit, but which shall not be later than one hundred and twenty days from the date of service of summons and on expiry of one hundred and twenty days from the date of service of summons, the defendant shall forfeit the right to file the written statement and the court shall not allow the written statement to be taken on record.” Further Rule 10 of Order 8 in respect of the Commercial Court prescribes as follows:- “Where any party from whom a written statement is required under Rule 1 or Rule 9 fails to present the same within the time permitted or fixed by the court, as the case may be, the court shall pronounce judgment against him, or make such order in relation to the suit as CMP No.256 of 2025 Page 3 of 10 Signature Not Verified Digitally Signed Signed by: MANAS KUMAR PANDA Designation: Personal Assistant Reason: Authentication Location: OHC, Cuttack Date: 01-Sep-2025 18:42:55 it thinks fit and on the pronouncement of such judgment a decree shall be drawn up: Provided further that no court shall make an order to extend the time provided under Rule 1 of this Order for filing of the written statement.” 5. Both the aforesaid provisions makes the mandatory period of filing the written statement within 120 days from the date of acceptance of summons. The Hon’ble Supreme Court in the case of SCG Contracts (India) Private Ltd. Vs. K.S. Chamankar Infrastructure Private Ltd. and Others, (2019) 12 SCC 210, have observed after referring to such provisions of the CPC regarding filing of written statement by the Defendant, as follows:- “8. xxxxx xxxxxx xxxxxx A perusal of these provisions would show that ordinarily a written statement is to be filed within a period of 30 days. However, grace period of a further 90 days is granted which the Court may employ for reasons to be recorded in writing and payment of such costs as it deems fit to allow such written statement to come on record. What is of great importance is the fact that beyond 120 days from the date of service of summons, the defendant shall forfeit the right to file the written statement and the Court shall not allow the written statement to be taken on record. This is further buttressed by the proviso in Order 8 Rule 10 also adding that the court has no further power to extend the time beyond this period of 120 days. CMP No.256 of 2025 Page 4 of 10 Signature Not Verified Digitally Signed Signed by: MANAS KUMAR PANDA Designation: Personal Assistant Reason: Authentication Location: OHC, Cuttack Date: 01-Sep-2025 18:42:55 9. In Bihar Rajya Bhumi Vikas Bank Samiti [State of Bihar v. Bihar Rajya Bhumi Vikas Bank Samiti, (2018) 9 SCC 472 : (2018) 4 SCC (Civ) 387] , a question was raised as to whether Section 34(5) of the Arbitration and Conciliation Act, 1996, inserted by Amending Act 3 of 2016 is mandatory or directory. In para 11 of the said judgment, this Court referred to Kailash v. Nanhku [Kailash v. Nanhku, (2005) 4 SCC 480], referring to the text of Order 8 Rule 1 as it stood pre the amendment made by the Commercial Courts Act. It also referred (in para 12) to Salem Advocate Bar Assn. (2) v. Union of India [Salem Advocate Bar Assn. (2) v. Union of India, (2005) 6 SCC 344], which, like the Kailash [Kailash v. Nanhku, (2005) 4 SCC 480] judgment, held that the mere expression “shall” in Order 8 Rule 1 would not make the provision mandatory. This Court then went on to discuss in para 17 of State v. N.S. Gnaneswaran [State v. N.S. Gnaneswaran, (2013) 3 SCC 594 : (2013) 3 SCC (Cri) 235 : (2013) 1 SCC (L&S) 688], in which Section 154(2) of the Code of Criminal Procedure was held to be directory inasmuch as no consequence was provided if the section was breached. In para 22 by way of contrast to Section 34, Section 29-A of the Arbitration Act was set out. This Court then noted in para 23 as under: (Bihar Rajya Bhumi Vikas Bank Samiti case [State of Bihar v. Bihar Rajya Bhumi Vikas Bank Samiti, (2018) 9 SCC 472 : (2018) 4 SCC (Civ) 387] , SCC p. 489) “23. It will be seen from this provision that, unlike Sections 34(5) and (6), if an award is made beyond the stipulated or extended period contained in the section, the consequence of the mandate of the arbitrator being terminated is expressly provided. This provision is in stark contrast to Sections 34(5) and (6) CMP No.256 of 2025 Page 5 of 10 Signature Not Verified Digitally Signed Signed by: MANAS KUMAR PANDA Designation: Personal Assistant Reason: Authentication Location: OHC, Cuttack Date: 01-Sep-2025 18:42:55 where, as has been stated hereinabove, if the period for deciding the application under Section 34 has elapsed, no consequence is provided. This is one more indicator that the same Amendment Act, when it provided time periods in different situations, did so intending different consequences.” 10. Several High Court judgments on the amended Order 8 Rule 1 have now held that given the consequence of non- filing of written statement, the amended provisions of the CPC will have to be held to be mandatory. See Oku Tech (P) Ltd. v. Sangeet Agarwal [Oku Tech (P) Ltd. v. Sangeet Agarwal, 2016 SCC OnLine Del 6601] by a learned Single Judge of the Delhi High Court dated 11-8-2016 in CS (OS) No. 3390 of 2015 as followed by several other judgments including a judgment of the Delhi High Court in Maja Cosmetics v. Oasis Commercial (P) Ltd. [Maja Cosmetics v. Oasis Commercial (P) Ltd., 2018 SCC OnLine Del 6698]
Legal Reasoning
11. We are of the view that the view taken by the Delhi High Court in these judgments is correct in view of the fact that the consequence of forfeiting a right to file the written statement; non-extension of any further time; and the fact that the Court shall not allow the written statement to be taken on record all points to the fact that the earlier law on Order 8 Rule 1 on the filing of written statement under Order 8 Rule 1 has now been set at naught.” 6. It is submitted by Mr. Bhuyan, learned senior counsel on behalf of the Plaintiffs that once the time period of 120 days expires particularly in respect of the Commercial matters the right of the CMP No.256 of 2025 Page 6 of 10 Signature Not Verified Digitally Signed Signed by: MANAS KUMAR PANDA Designation: Personal Assistant Reason: Authentication Location: OHC, Cuttack Date: 01-Sep-2025 18:42:55 Defendants to file the written statement is forfeited and cannot be revived. 7. In the present facts of the case since it is admitted that the service of summons have been made sufficient on the defendants by way of paper publication, it is obvious that service of summons on the defendants was without the copy of the plaint. Rule 1 of Order 5, C.P.C. speaks of summons and Rule 2 mandates that every summon shall be accompanied by a copy of the plaint. 8. Here in the instant case, admittedly the summons were not accompanied by the copy of the plaint and the copy of the plaint has been sought for by way of filing a petition by the Defendant before the court. The same being allowed, the copy of the plaint was furnished by the Plaintiffs in the court itself on 21st February, 2024 without being served on the Defendants or their counsel. The order dated 21st February, 2024 of the trial court reads as under:- “Order dated 21.02.2024 Learned counsel for plaintiff is present and files copy of plaint for service on the counsel for defendant no.1 and 2 for compliance of order dated 06.02.24 passed by this court. Counsel for defendant no.1 and 2 is absent although files a petition praying for time on the ground stated therein. Heard on the petition. The prayer for time is allowed. Put up on CMP No.256 of 2025 Page 7 of 10 Signature Not Verified Digitally Signed Signed by: MANAS KUMAR PANDA Designation: Personal Assistant Reason: Authentication Location: OHC, Cuttack Date: 01-Sep-2025 18:42:55 01.03.24 for hearing of the petition dtd.15.05.23 as a last chance.” 9. It is true that the copy of the plaint could not be served on the defendant till 28th June, 2024. The order dated 28th June, 2024 of the trial court reads as under:- “Order dated 28.06.2024 Learned counsel for plaintiff is present and files hazira. Counsel for defendant no.1 and 2 is also present and files hazira. On perusal of the case record the counsel for defendant no.1 & 2 has filed a petition, that the plaintiff is directed to serve the copy of the plaint on dtd.06.02.24 and the same has been complied by the counsel for plaintiff on 21.02.24. As the copy of the plaint has been filed by the plaintiff for service, the counsel for defendant no.1 & 2 is found absent to receive the same till 20.02.24. The defendants i.e., 1, 2, 3, 4 has already been set ex-parte as per order passed by this court on 20.03.23, but the counsel for defendant no.1 and 2 has appeared by filing a V.nama on 17.04.23 and also file a petition dtd.15.5.23 U/o.9, R-7 CPC to set aside/recall the exparte order passed on 20.03.23. The copy of the petition dtd.15.05.23 has been served on counsel for plaintiff and objection to the petition has been filed on 03.08.23. The objection has also been served on 10.08.23 on the counsel for defendant no.1 & 2. Copy of plaint has been served today on the counsel for defendant no.1 and 2 as per compliance of order dtd.06.02.24. Put up on 10.07.24 of CMP No.256 of 2025 Page 8 of 10 Signature Not Verified Digitally Signed Signed by: MANAS KUMAR PANDA Designation: Personal Assistant Reason: Authentication Location: OHC, Cuttack Date: 01-Sep-2025 18:42:55 hearing on the petition filed on dtd.15.05.23, U/o.9, R-7 of CPC to set-aside/recall the exparte order passed on 20.03.23.” 10. The reason for non-service of copy of the plaint from 21st February, 2024 till 28th June, 2024 is not attributable to the defendants. It is for the reason that service of copy of the plaint in the court was not brought to the knowledge of the defendants and as submitted by learned counsel for the Petitioners (Defendants) that they did not have such knowledge of furnishing of copies of the plaint in the court. The record does not speak anything bringing to the knowledge of the Defendants regarding furnishing of copies of the plaint in the court for service on the Defendants. Therefore, what is understood that the service of summons in terms of Rule 2 of Order 5 has been completed on the defendants on 28th June, 2024 being complied with the mandate that the summons were accompanied with the copies of plaint. In such circumstance the date of service of summons on the defendants is extended till 28th June, 2024. 11. Admittedly, the filing of Written Statement on 21st September, 2024 is within 120 days from 28th June, 2024. Therefore, no hindrance or legal bar is there on the court for acceptance of the written CMP No.256 of 2025 Page 9 of 10 Signature Not Verified Digitally Signed Signed by: MANAS KUMAR PANDA Designation: Personal Assistant Reason: Authentication Location: OHC, Cuttack Date: 01-Sep-2025 18:42:55 statement of the defendants being filed within the prescribed time limit. 12. In the above circumstances it is held that the Defendants have filed their written statement within the statutory period of 120 days of service of summons on them and therefore, the court has the power to accept the same on record. Accordingly the impugned order dated 25th October, 2024 rejecting the prayer of the defendants to accept their WS is set aside and the written statement filed by the defendants is accepted on record.
Decision
13. The CMP is disposed of as allowed. Judge M.K. Panda/P.A ( B.P. Routray) CMP No.256 of 2025 Page 10 of 10