Court Rules Order IX Rule 7 CPC Cannot Override Mandatory Outer Limit Under Commercial Courts Act, 2015; Defendants Allowed to Participate in Trial but Not File Late Written Statement
In a significant judgment delivered on September 22, 2026, the Kerala High Court, presided over by Justice Easwaran S., clarified the procedural limits concerning the filing of written statements in commercial suits. The court examined the interplay between the proviso to Order VIII Rule 1 of the Code of Civil Procedure (CPC), as amended by Section 16 of the Commercial Courts Act, 2015, and Order IX Rule 7 CPC related to setting aside ex parte orders.
The case arose from a commercial suit filed by M/s. Abaan Impex Pvt. Ltd. seeking recovery of over Rs. 5.6 crore along with interest. The defendants, Anwar Basheer and another, were served summons on June 2, 2025. As per the statutory mandate, they were required to file their written statement within 30 days, extendable up to a maximum outer limit of 120 days from the date of service of summons.
The defendants failed to file the written statement within the stipulated period and were subsequently set ex parte on September 9, 2025. Although they later appeared and filed vakalatnama on November 29, 2025, they did not file the written statement at that time. Their written statement was tendered only on January 27, 2026, along with an application under Order IX Rule 7 CPC to set aside the ex parte order.
The petitioners contended that allowing their application under Order IX Rule 7 should restore their position as on the date of the ex parte order and permit filing the written statement within the remaining time. However, the court held that while Order IX Rule 7 restores procedural status, it cannot override the mandatory outer limit of 120 days prescribed under the proviso to Order VIII Rule 1 CPC for commercial suits. Accepting the petitioners' argument would render the statutory amendment introduced by the Commercial Courts Act, 2015, meaningless.
The court emphasized that the strict procedural framework under the Commercial Courts Act aims to expedite commercial litigation, and allowing written statements beyond 120 days would defeat this legislative intent. However, the defendants were not barred from participating in the trial or cross-examining the plaintiff on issues raised in the plaint.
This judgment reinforces the mandatory nature of the 120-day outer limit for filing written statements in commercial suits and clarifies that procedural rules under Order IX cannot be used to circumvent this statutory deadline.
Bottom Line:
Commercial Suit - Written statement in commercial suits must be filed within the mandatory outer limit of 120 days from service of summons under proviso to Order VIII Rule 1 CPC as amended by Section 16 of the Commercial Courts Act, 2015 - Order IX Rule 7 CPC restoring defendant to position prior to ex parte order cannot override or extend said statutory outer limit - Defendant may still participate in trial and cross-examine plaintiff, but cannot be permitted to file written statement beyond 120 days.
Statutory provision(s): Commercial Courts Act, 2015 Section 16, Code of Civil Procedure, 1908 Order VIII Rule 1 proviso, Code of Civil Procedure, 1908 Order IX Rules 6(1)(a) and 7
Anwar Basheer v. M/s. Abaan Impex Pvt. Ltd., (Kerala) : Law Finder Doc Id # 3000152
