Defence Struck Off in Commercial Cases

847 votes

It's a serious issue now. Since Written Statement has not been filed it cannot be exercised now as the provision is mandatory. However your right to cross examine and participate in the suit will not vanish. You can still argue on the point of lack of jurisdiction, if the suit is barred by limitation or it is non maintenable

Advocate Anubhav Kathuria LawRato

794 votes

If the 120-day period from service of summons has expired in a commercial suit, the right to file the Written Statement is generally forfeited under Order VIII Rule 1 CPC read with the Commercial Courts Act. However, you may challenge the order striking off the defence by filing an appropriate appeal/revision/petition, depending on the nature of the order and stage of the proceedings. The court may also be approached for recall if there are exceptional circumstances, but mere negligence or delay is ordinarily insufficient after 120 days.

Advocate Abdullah Akhtar LawRato

839 votes

If the defence has been struck off in a commercial suit due to non-filing of the Written Statement within 120 days from the date of service of summons, the remedy would depend upon the exact facts and the order passed by the Commercial Court. Under Order VIII Rule 1 CPC, as amended by the Commercial Courts Act, the 120-day period is ordinarily mandatory and the Court cannot extend the time merely on the ground of sufficient cause; however, if there is an error in computation of the period, defective or incomplete service of summons, any period legally excludable from limitation, or other exceptional circumstances, an application for recall/set-aside of the order closing the defence may be maintainable before the Commercial Court, and, if unsuccessful, the order may be challenged before the Hon’ble High Court in accordance with the applicable appellate/supervisory remedy. The Supreme Court has recognised that legally excludable periods, including the period covered by its COVID-19 limitation-extension orders, have to be considered while computing the 120 days. Therefore, before advising on the precise remedy, the date of service of summons, order-sheets, date of filing/tendering of the Written Statement, and the exact order striking off the defence should be examined; if you provide these documents, a specific application/challenge with appropriate Supreme Court precedents can be prepared.

Advocate Prasanna Mohan LawRato

633 votes

considering the limited information available the order striking off the defence can be challenged in the High court. one aspect I would consider is the calculation of the 120 days. it would not be prudent to seek condonation of delay as 120 days is the upper limit and no extension can be given. However proper course of action can be discussed upon perusal of the file. should you have any queries please feel free to contact me

Advocate Kunal Seth LawRato

977 votes

If your defence is struck off for not filing the Written Statement within 120 days in a commercial case, you should immediately challenge the order before the appropriate court. Your lawyer can consider seeking recall/review or filing an appeal/writ, depending on the circumstances. First, verify the date of service of summons and how the 120 days were calculated. The remedy depends on the exact order and facts of your case.

Advocate Rahul Kumar LawRato