Commercial litigation is governed by strict procedural timelines intended to ensure the speedy resolution of business disputes. One of the most stringent requirements is the 120-day outer limit for filing a written statement under Order VIII Rule 1 of the Code of Civil Procedure, 1908, as amended by the Commercial Courts Act, 2015. Once this period expires, the defendant forfeits the right to file the written statement, and the Court has no power to take it on record. But does the same mandatory deadline apply when a plaintiff is required to file a written statement, commonly referred to as a reply, to a counter-claim raised by the defendant?
The Supreme Court of India answered this important procedural question in A.K. Ghosh & Company and Others v. Biman Bose and Others, 2026 INSC 684. The Court held that a plaintiff in a commercial suit is equally bound by the 120-day outer limit while filing a written statement in answer to a defendant’s counter-claim. The absence of a specific time fixed by the Court under Order VIII Rule 6A(3) CPC does not permit the plaintiff to file the reply at any time of his choosing.
Facts Behind the Case
The plaintiffs had supplied printing paper to the defendants from time to time. When disputes arose regarding payment, the plaintiffs issued a legal notice dated 16 June 2021 claiming ₹74,65,527 along with interest.
The defendants denied the liability. The plaintiffs thereafter instituted a recovery suit, which was subsequently registered as a commercial suit before the Calcutta High Court.
The contesting defendants filed their written statement and also raised a counter-claim against the plaintiffs. Copies of the written statement and counter-claim were served upon the plaintiffs’ Advocate-on-Record on 18 July 2023. However, the plaintiffs did not file their written statement to the counter-claim within 120 days. It was only on 15 March 2024, after 238 days, that they approached the Court seeking permission to file their response.
The Single Judge rejected the application. The Division Bench also dismissed the appeal, both on the merits and on the ground of maintainability. The plaintiffs thereafter approached the Supreme Court.
Counter-Claims in Civil Suits
A counter-claim enables a defendant to assert an independent claim against the plaintiff in the same proceedings. The concept was introduced into the Code of Civil Procedure by the Code of Civil Procedure (Amendment) Act, 1976. Its purpose was to reduce the multiplicity of proceedings. Instead of requiring the defendant to institute an independent suit against the plaintiff, the law allows the defendant to raise his claim in the suit already instituted against him.
Under Order VIII Rule 6A CPC, a defendant may set up any right or claim against the plaintiff arising from a cause of action that accrued before the defendant delivered his defence or before the time prescribed for delivering the defence expired.
A counter-claim has the same effect as a cross-suit. This enables the Court to pronounce a final judgment both on the plaintiff’s original claim and the defendant’s counter-claim in the same proceedings.
Order VIII Rule 6A(3) further provides that the plaintiff may file a written statement in answer to the counter-claim within such period as may be fixed by the Court.
Why Did the Calcutta High Court Reject the Delayed Reply?
The Single Judge examined the combined effect of Order VIII Rules 1, 6A(3), 6G and 10 CPC. Order VIII Rule 6A(3) permits a plaintiff to file a written statement to a counter-claim within the time fixed by the Court.
However, no specific time had been fixed in the present case. The plaintiffs therefore argued that, in the absence of a judicial order prescribing a deadline, the statutory bar of 120 days could not operate against them.
The High Court rejected this argument. It relied particularly upon Order VIII Rule 6G CPC, which provides that:
“The rules relating to a written statement by a defendant shall apply to a written statement filed in answer to a counter-claim.”
The High Court held that the rules governing the filing of a written statement by a defendant, including the statutory time limit, apply equally to the written statement filed by a plaintiff against a counter-claim.
Consequently, the plaintiffs could not avoid the mandatory deadline merely because the Court had not specifically fixed a time under Order VIII Rule 6A(3).
The 120-Day Deadline Applies Equally to Counter-Claims
The Supreme Court emphasised that commercial litigation operates under a stricter procedural framework. A defendant must ordinarily file the written statement within 30 days from the service of summons.
Where sufficient cause is shown, the Court may extend the time after recording reasons and imposing appropriate costs. However, the extension cannot go beyond 120 days.
After the expiry of 120 days, the right to file the written statement stands forfeited, and the Court has no power to take it on record.
The Supreme Court held that the same rule applies to a plaintiff filing a written statement against a counter-claim. The Court observed that applying strict timelines only to defendants while permitting plaintiffs unlimited time to respond to counter-claims would defeat the objective of speedy disposal of commercial disputes.
Earlier High Court Decisions Took a Different View
The Supreme Court examined several High Court decisions that had adopted a more liberal approach.
In Nirottam Sharma v. Ramkishore, the Rajasthan High Court held that the Trial Court was required to fix a time under Order VIII Rule 6A(3) and, where no such time was fixed, further opportunity should be granted to the plaintiff.
Similarly, in CSCO LLC v. Lakshmi Saraswathi Spintex Limited, the Madras High Court held that the 120-day bar applicable to defendants did not directly govern written statements filed by plaintiffs against counter-claims.
The Bombay High Court had also held in earlier decisions that Order VIII Rule 6G concerned the contents of the written statement rather than the limitation period for filing it.
The Supreme Court disagreed with these interpretations. The Court held that restricting Order VIII Rule 6G merely to the contents of a written statement would amount to reading words into the provision that the legislature had not used.
Such an interpretation would also defeat the objective of ensuring the speedy completion of pleadings in commercial suits.
How Do Order VIII Rules 1, 6A(3), 6G, 9 and 10 Work Together?
The Supreme Court explained the procedural scheme governing written statements to counter-claims. In the first instance, the Court may fix the period for filing the written statement under Order VIII Rule 6A(3).
If the plaintiff fails to file the written statement within that period, he may seek an extension by showing sufficient cause. The Court may grant further time after recording reasons and imposing appropriate costs.
However, because Order VIII Rule 6G applies the rules relating to written statements by defendants, the total period cannot exceed 120 days from the date of service of summons or receipt of the counter-claim.
Order VIII Rule 9 also empowers the Court to require a written statement or additional written statement from a party and fix a period for filing it. Where the Court itself calls for such a written statement, the period fixed cannot exceed 30 days, while remaining within the permissible statutory outer limit.
Order VIII Rule 10 provides the consequences of failure to comply with these timelines, including the possibility of pronouncing judgment against the defaulting party.
Thus, the different provisions of Order VIII must be read together rather than in isolation.
Supreme Court Lays Down the Governing Rule
The Supreme Court answered the principal question in the affirmative. It held that a plaintiff in a commercial suit is bound by the mandatory requirements of the proviso to Order VIII Rule 1 CPC while filing a written statement to a defendant’s counter-claim.
The Court laid down the following position:
- The plaintiff should ordinarily file the written statement to the counter-claim within 30 days from the date of service of summons or receipt of the counter-claim.
- If the written statement is not filed within 30 days, the Court may grant further time where sufficient cause is shown.
- The extension must be supported by reasons recorded in writing and may be made subject to payment of appropriate costs.
- Under no circumstances can the written statement be filed beyond 120 days from the date of service of summons or receipt of the counter-claim.
Once 120 days expire, the right to file the written statement stands forfeited. The Court has no jurisdiction to revive that right.
Was the Appeal Before the Division Bench Maintainable?
The Supreme Court also considered whether the plaintiffs could maintain an appeal before the Commercial Appellate Division against the Single Judge’s refusal to accept their delayed written statement.
The Court examined Section 13 of the Commercial Courts Act. Under Section 13(1A), an appeal may lie against judgments or orders of a Commercial Division of the High Court.
However, the proviso restricts appeals against interlocutory orders to those specifically enumerated under Order XLIII CPC and Section 37 of the Arbitration and Conciliation Act, 1996.
The Supreme Court reiterated that an appeal is a creature of statute. There is no inherent right to appeal.
Relying upon BGS SGS SOMA JV v. NHPC Limited and Kandla Export Corporation v. OCI Corporation, the Court held that Section 13 does not create an independent right of appeal against every order passed by a Commercial Court.
An order refusing permission to file a delayed written statement under Order VIII CPC is not appealable under Order XLIII CPC.
Therefore, the appeal filed by the plaintiffs before the Division Bench was not maintainable.
Final Decision
After examining the statutory framework, the object of the Commercial Courts Act and the scheme of Order VIII CPC, the Supreme Court upheld the decisions of the Single Judge and the Division Bench of the Calcutta High Court.
The Court held that the plaintiffs had received the written statement and counter-claim on 18 July 2023 but sought permission to file their response only on 15 March 2024, after 238 days.
Their right to file the written statement had therefore already been forfeited. The absence of a specific deadline fixed by the Court under Order VIII Rule 6A(3) could not revive or extend that right.
The Supreme Court accordingly dismissed the appeals, vacated the interim order dated 23 May 2025 and directed the parties to bear their own costs.