Plaintiff Must File Written Statement to Counter-Claim Within 120 Days in Commercial Suits, Supreme Court Rules

A bench of Justices Sanjay Kumar and K. Vinod Chandran holds that the 120-day outer limit under Order VIII Rule 1 applies equally to a plaintiff replying to a defendant's counter-claim in a commercial suit.

The Supreme Court has held that a plaintiff in a suit governed by the Commercial Courts Act, 2015 must file a written statement in answer to a defendant's counter-claim within the same 120-day outer limit that binds a defendant filing a written statement. The Court answered a discrete question of civil procedure: whether the strict time frame in the proviso to Order VIII Rule 1 of the Code of Civil Procedure, 1908 applies to a plaintiff's reply to a counter-claim, or whether that reply is governed only by the more flexible Order VIII Rule 6A(3), which leaves the timeline to the Court's discretion. Rejecting the liberal view adopted by some High Courts, Justices Sanjay Kumar and K. Vinod Chandran held, on 13 July 2026, that Order VIII Rule 6G pulls the plaintiff's reply firmly within the ambit of Order VIII Rule 1. The appeals were dismissed.

The Dispute and Its Path to the Supreme Court

A.K. Ghosh & Company and others, printers' paper suppliers, filed a recovery suit—originally CS No. 274 of 2022, later renumbered CS (COM) No. 440 of 2024—before the Calcutta High Court, claiming ₹74,65,527 with interest from the defendants. A legal notice had been issued on 16 June 2021; the defendants denied the claim by letter dated 28 June 2021.

The contesting defendants—defendant Nos. 1, 2, 3, 5 and 6—filed their written statement and raised a counter-claim. Copies of the written statement and counter-claim were served on the plaintiffs' Advocate-on-Record under a letter dated 18 July 2023. It was only on 15 March 2024—238 days later—that the plaintiffs moved an application for leave to file their written statement to the counter-claim.

The learned Single Judge dismissed the application on 19 August 2024, holding that the plaintiffs could not escape the time frame in Order VIII Rule 1 CPC. On appeal in AO-COM/35/2024, a Division Bench of the Calcutta High Court dismissed the plaintiffs' appeal on 26 February 2025—both on maintainability grounds and on merits. The Supreme Court granted special leave and on 23 May 2025 stayed further proceedings in the suit.

The Statutory Framework: Order VIII Rules 6A, 6G, and the Commercial Courts Proviso

The Court traced the evolution of Order VIII Rule 1 CPC through successive amendments. The Code of Civil Procedure (Amendment) Act, 1976 introduced the concept of a counter-claim by inserting Rule 6A in Order VIII. Under Order VIII Rule 6A(3), a plaintiff is at liberty to file a written statement to a counter-claim “within such period as may be fixed by the Court.” Order VIII Rule 6G, titled ‘Rules relating to written statement to apply’, states that rules relating to a written statement by a defendant shall apply to a written statement filed in answer to a counter-claim.

The 2002 amendment (Act 22 of 2002), in force from 1 July 2002, required a defendant to file a written statement ordinarily within 30 days from service of summons, with court-sanctioned extension up to 90 days. The Commercial Courts Act, 2015, through Section 16 read with its Schedule, substituted the proviso to Order VIII Rule 1 for commercial suits: the outer limit was raised to 120 days, but with a hard consequence—on expiry of 120 days, the right to file a written statement stands forfeited and the Court cannot allow it to be taken on record.

The Court recalled its earlier decision in SCG Contracts (India) Private Limited v. K.S. Chamankar Infrastructure Private Limited and others, (2019) 12 SCC 210, where it held that failure to file a written statement within 120 days from service of summons entails forfeiture, even if the defendant was pursuing an application under Order VII Rule 11 CPC.

The Competing Views from the High Courts

The Court surveyed four High Court decisions that had taken varying positions.

The Rajasthan High Court in Nirottam Sharma v. Ramkishore and another (SB Civil WP No. 18024 of 2016, decided 7 February 2018) held that the Trial Court was duty-bound to fix a time under Order VIII Rule 6A(3) for the plaintiff to reply; absent such fixation, more time ought to be granted.

The Madras High Court in CSCO LLC and another v. Lakshmi Saraswathi Spintex Limited and others (Appl No. 4791 of 2021 in CS No. 697 of 2017, decided 28 January 2022) opined that SCG Contracts would not apply to a plaintiff's reply to a counter-claim, and that such cases are governed only by the time fixed under Order VIII Rule 6A(3). The Madras court did add that the 120-day outer limit should be kept in mind while fixing that time.

The Bombay High Court, in decisions including Mrs. Shalini Nunes Mascarenhas v. Mr. Trevor Nunes, 2009 (2) Goa LR 222, and Dattaram Krishnanath Pednekar and others v. Pandurang K. Pednekar and others, 2010 (7) Mh.L.J.386, held that Order VIII Rule 6G CPC pertains only to the contents of a written statement to a counter-claim and has nothing to do with the time for filing such written statement; Order VIII Rule 6A(3) alone governed the timeline.

The Delhi High Court in Indcon Boiler Ltd. v. Maeda Corporation India and others (CM (M) 767/2019, decided 17 September 2019) permitted a belated written statement on the distinct facts of an unregistered counter-claim and confusion arising from transfer of the suit when the CC Act was notified. The Court noted this case turned on its own facts.

Why the Court Rejected the Liberal Interpretation

The Court found the Bombay High Court's reading of Order VIII Rule 6G unpersuasive. The provision, it said, unequivocally applies all rules relating to a written statement by a defendant to a written statement filed in answer to a counter-claim. No textual basis exists for limiting Rule 6G to the contents of such a written statement while excluding its temporal requirements.

The Court also rejected the Madras High Court's view that the clock starts running only when the Court specifically fixes a time under Order VIII Rule 6A(3). If the Court fails to fix any time, that interpretation would leave the plaintiff free to devise his own schedule—a result the Court characterised as plainly contrary to the statute's intent. Order VIII Rule 6A(3) enables the Court to fix a time; in the absence of such fixation, Order VIII Rule 6G steps in and applies the proviso to Rule 1, setting the outer temporal limit.

On the argument that a penal provision must be construed strictly in favour of the party against whom it operates, the Court held that the statutory scheme was clear and admitted no alternative construction that would leave the plaintiff's reply unconstrained. Reliance placed by the plaintiffs on Nasima Naqi v. Todi Tea Company Limited and others, (2023) 17 SCC 641, for the principle that what a legislature has not included must be treated as excluded was also rejected: the Court found that Rule 6G expressly extends the defendant's rules to the plaintiff's reply, leaving no gap that could be treated as a deliberate exclusion.

The Court also addressed Order VIII Rule 9 CPC, which deals with subsequent pleadings. A written statement to a counter-claim is explicitly excepted from the category of “subsequent pleadings” requiring leave of the Court under Rule 9. The Court clarified that Rule 9's reference to a party's obligation to file a defence to a set-off or counter-claim without needing leave is separate from the time limits imposed by Rule 1 via Rule 6G. The proviso to Order VIII Rule 10 CPC, which forbids the Court from extending time under Rule 1 beyond the permissible limit, reinforces that position.

How the 120-Day Framework Operates for a Plaintiff's Reply

The Court set out the scheme that emerges when the provisions are read together:

First, the Court may fix a time for the plaintiff to file a written statement to the counter-claim under Order VIII Rule 6A(3). Second, if the plaintiff fails to do so within that period but shows sufficient cause, the proviso to Order VIII Rule 1 read with Rule 6G permits the Court to extend time—on recording reasons and imposing costs—up to a maximum of 120 days from the date of service of summons or receipt of the counter-claim. Third, if the Court itself calls for a written statement under Order VIII Rule 9, the time to be fixed is shorter: just 30 days, still within the 120-day outer limit. Fourth, Order VIII Rule 10 governs the consequences of breach—pronouncement of judgment and a decree—and the proviso to that Rule prevents the Court from exceeding the Rule 1 limit in a commercial suit.

The Court accordingly answered the question posed in the affirmative: the mandatory time frame prescribed by the proviso to Order VIII Rule 1 CPC does apply to the filing of a written statement by a plaintiff to a counter-claim in a commercial suit.

Maintainability of the Appeal Before the Division Bench

On the second issue, the Court held that the Division Bench had correctly found the appeal not maintainable. Section 13(1A) of the CC Act allows an appeal against orders of a Commercial Division of a High Court, but the proviso restricts that right to orders specifically enumerated under Order XLIII CPC (as amended by the CC Act) and Section 37 of the Arbitration and Conciliation Act, 1996. An order passed under Order VIII CPC does not feature in Order XLIII CPC. Section 13(2), with its non-obstante clause, makes clear that no appeal lies from any order of a Commercial Division otherwise than in accordance with the CC Act.

The Court relied on BGS SGS SOMA JV v. NHPC Limited, (2020) 4 SCC 234, which held that an appeal is a creature of statute and must be found within the four corners of the statute, and on Kandla Export Corporation and another v. OCI Corporation and another, (2018) 14 SCC 715, which held that orders not specifically enumerated in Order XLIII or Section 37 are not amenable to appeal under Section 13. Accordingly, the appeal filed by the plaintiffs before the Division Bench was not maintainable, in addition to being devoid of merit.

Outcome

The Supreme Court dismissed both civil appeals. The interim order dated 23 May 2025 staying further proceedings in CS (COM) No. 440 of 2024 before the Calcutta High Court was vacated. Pending applications, if any, were also dismissed. The Court directed that parties bear their own costs.