- 1 - HC-KAR NC: 2025:KHC:30902 WP No. 21164 of 2024 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 11TH DAY OF AUGUST, 2025 BEFORE THE HON'BLE MR. JUSTICE M.NAGAPRASANNA WRIT PETITION NO. 21164 OF 2024 (GM-CPC) BETWEEN: MR. SYED SAMEER AHMAD, CHAIRMAN AND DIRECTOR, M/S. PROVENIO CAPITAL ADVISORS PVT. LTD., SUFIYA ELITE, NO.18, CUNNINGHAM ROAD, BENGALURU - 560 052. …PETITIONER (BY SRI. MOHAMMED ZULFIKHAR AHAMED, ADVOCATE) AND: 1. M/S. ATHER ENERGY PRIVATE LIMITED, IN CORPORATE UNDER THE COMPANIES ACT 1956, HAVING ITS REGISTERED OFFICE AT 3RD FLOOR, TOWER-D, IBC KNOWLEDGE PARK, BANNERGHATTA MAIN ROAD, BENGALURU - 560 029. REPRESENTED BY ITS ASSISTANT GENERAL COUNSEL CORPORATE LEGAL AND AUTHORIZED SIGNATORY MR. RAJEEV GOSWAMI. 2. M/S. PROVENIO CAPITAL ADVISORS PVT. LTD., INCORPORATED ON 08 MARCH 2016, IT IS CLASSIFIED AS NON-GOVERNMENT COMPANY, Digitally signed by NAGAVENI Location: HIGH COURT OF KARNATAKA - 2 - HC-KAR NC: 2025:KHC:30902 WP No. 21164 of 2024 HAVING ITS REGISTERED OFFICE AT UNIT-105, 2ND FLOOR, SUFIYA ELITE, NO.18, CUNNINGHAM ROAD, BENGALURU - 560 052, REPRESENTED BY MANAGING DIRECTOR. 3. MR. MANISH ANAND, MANAGING DIRECTOR, PROVENIO CAPITAL ADVISORS PVT. LTD., SUFIYA ELITE, NO 18, CUNNINGHAM ROAD, BENGALURU - 560 052. …RESPONDENTS THIS WP IS FILED UNDER ARTICLE 227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE IMPUGNED ORDER DATE 03.07.2024, ON I.A NO.1 IN COM. O.S NO.965/2023 PASSED BY THE LXXXIX ADDITIONAL CITY CIVIL AND SESSIONS JUDGE, BENGALURU (CCH-90) VIDE ANNEXURE-A AND ETC., THIS PETITION, COMING ON FOR PRELIMINARY HEARING, THIS DAY, ORDER WAS MADE THEREIN AS UNDER: CORAM: HON'BLE MR. JUSTICE M.NAGAPRASANNA ORAL ORDER The petitioner is before this Court calling in question an order dated 3.7.2024 on I.A.No.1 in Commercial O.S.No.965/2023 seeking permission to file the Written Statement beyond the period of 120 days. - 3 - HC-KAR NC: 2025:KHC:30902 WP No. 21164 of 2024 2. Heard Sri.Mohammed Zulfikhar Ahamed, learned counsel appearing for the petitioner and have perused the material on record. 3. The first respondent institutes a Commercial O.S.No.965/2023 seeking recovery of a sum of Rs.54,00,000/- along with interest. After issuance of notice, it transpires the petitioner appears on 3.11.2023. The time to file Written Statement expired on 4.12.2023. The petitioner then files an application under I.A.No.1 seeking permission to file the Written Statement as it was beyond 120 days and with a delay of 19 days. The petitioner sought condonation of delay by filing the said application. The application comes to be rejected by the aforesaid order: "REASONS 08. POINT No.1 : In support of IA No.1 Syed Sameer Ahmad, the defendant No.2 has sworn to an affidavit. In the affidavit it is averred that due to his personal inconvenience and reasons he was not able to file the written statement and he had no knowledge to file the written statement within time. 09. That, the counsel whom he had engaged earlier had not given proper instructions and advice for filing of the written statement. Now he has engaged new counsel after obtaining NOC and appearing party in person. - 4 - HC-KAR NC: 2025:KHC:30902 WP No. 21164 of 2024 10. It is further averred that the non-filing of written statement within the time is bonafide and not intentional. 11. It is further averred that he has got good case on merits, if this application is allowed no hardship will be caused to the plaintiff, on the other hand, if this application is not allowed, he will be put to grave hardship and inconvenience and also lose his right of defense. By contending so the defendant No.2 has prayed this Court to allow the said application. 12. On the other hand the plaintiff has filed objection contending that the application is belated, devoid of any merit and liable to be dismissed. The defendant No.2 has merely stated that due to his personal inconvenience he was not able to file the written statement and he did not have much knowledge to file the written statement within time. It is settled law that ignorance of law is no excuse. The defendant No.2 has blamed his previous counsel that no proper instructions and advice were given to file the written statement on time, which is wholly untenable. No valid ground has been stated in the affidavit as to why the written statement was not filed within time. The instant application is filed only to delay the proceedings and harass the plaintiff who has to recover a sum of `.54,00,000/- along with interest from the defendants. 13. That, the present suit was filed on 30.08.2023 and the defendant No.2 entered appearance through counsel on 04.10.2023. The defendant No.2 failed to file the written statement when the matter was listed on 03.11.2023 and 04.12.2023 and no application for extension of time to file written statement was filed by the defendant No.2. Therefore, this Hon'ble Court was pleased to take the written statement of defendant No.2 as not filed vide order dated 04.12.2023 and posted for plaintiff evidence. The case is listed on 05.01.2024 and defendant No.2 did not file the written statement even on that date. 14. It is contended that the defendant No.2 has failed to give any reason in support of his application to file the written statement after the expiry of statutory period. Further by way of present application the defendant No.2 has prayed to recall the order dated 04.12.2023 and permit the defendant No.2 to file the written statement. The defendant No.2 has not filed any application for condoning the delay in filing the written statement. The defendant No.2 had no impediment to file the written statement before this Hon'ble Court within AND the statutory period. Any inadvertence on behalf of the defendant No.2 cannot be considered as a ground to - 5 - HC-KAR NC: 2025:KHC:30902 WP No. 21164 of 2024 allow the present application. The present application has been filed to harass the plaintiff and delay the proceedings. Seen from any angle, the application filed by the defendant No.2 is devoid of merit and is liable to be dismissed. In the circumstances, the written statement of defendant No.2 ought not to be taken on record. By contending so, the plaintiff has prayed this Court to dismiss the application with exemplary cost in the interest of justice and equity. 15. Keeping in mind, the rival contentions I have carefully gone through the order sheet wherein it appears summons was issued to defendants 31.08.2023. On perusal of RPAD it appears summons was duly served on defendant No.2 on 12.09.2023. 16. As on the date of service of summons the defendant No.2 ought to have filed written statement within 120 days i.e., on or before 11.01.2024. In this case on 27.01.2024 the defendant No.2 has put forth his appearance through a new counsel and has filed present application with written statement. 17. Now the law is well settled that in commercial suits the written statement has to be filed within 120 days from the date of service of summons. Admittedly, the defendant No.2 has not filed written statement within outer limit of 120 days. The reasons assigned by the defendant No.2 that he was not aware of the time limit and his counsel not advised him to file written statement are not at all tenable in commercial suits. 18. The Hon'ble Apex Court has categorically held in M/s.SCG Contracts India Vs K.S.Chamankar Infrastructure that "no written statement can be taken on record in commercial suits, if it is not filed within 120 days from the date of service of summons to the defendant". 19. On careful perusal of the above well settled principle of Law it appears that the written statement has to be filed within 120 days and the time limit is mandatory in nature. In this case admittedly the written statement is not filed within outer limit of 120 days hence the application filed by the defendant No.2 to recall the order dated 04.12.2023 and to permit him to file written statement deserves to be rejected. Accordingly, I answer the above point No.1 in the NEGATIVE. 20. POINT No.2: In view of the above discussions on Point No.1, I proceed to pass the following: - 6 - HC-KAR NC: 2025:KHC:30902 WP No. 21164 of 2024 ORDER The IA No.1 filed by the defendant No.2 under Section 151 of CPC is hereby dismissed." 4. The concerned Court rejects the application by the aforesaid order and does not take the Written Statement on record. The order of the concerned Court is in tune with law. This Court in the case of IMAGEX TECHNOLOGIES INDIA PVT. LTD vs. GRAINTEC INDUSTRIES, 2025 SCC OnLine Kar 1213, at paras 9 to 12, has held as follows: "9. The application is filed under Order VIII Rule 1 read with Section 151 of the CPC. Order VIII Rule 1 of the CPC reads as follows: “ORDER VIII [WRITTEN STATEMENT, SET-OFF AND COUNTER-CLAIM] 1. Written statement. - The defendant shall, within thirty days from the date of service of summons on him, present a written statement of his defence: 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 twenty days from the date of service of summons and on expiry of one hundred 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.” (Emphasis supplied) - 7 - HC-KAR NC: 2025:KHC:30902 WP No. 21164 of 2024 The afore-quoted statutory command is directory nor permissive. It clothes the Court with discretionary, yes, but one hemmed within the fixed contour of 120 days, beyond that threshold, the right of the defendant to file the written statement stands statutorily extinguished and no interpretative generosity can rekindle it. 10. The summons in the case at hand is admittedly served upon the petitioners on 17-02-2024. The petitioners appear before the Court on 06-03-3024 and the learned counsel for defendants sought time to file written statement on 03-04-2024, but filed it only on 04-07-2024, long after the period of 120 days is over. The written statement is sought to be filed along with counter claim on the 137th day from the date of service of summons and 17 days from the date of expiry of 120 days. Therefore, viewed from any angle, there is delay in filing the written statement. The statute clearly mandates maximum permissible limit that a Court can extend time on reasons to be recorded in writing in exceptional circumstances only upto 120 days. Admittedly, the period of limitation on the date of filing of the written statement has expired. Therefore, no fault can be found with the order passed by the concerned Court declining to accept the written statement. 11. The judgment on which the learned counsel for the petitioners has placed reliance would not lend him any support. The paragraph that he relies upon is 39 of the judgment in the case of PRAKASH CORPORATES supra. It reads as follows: “Another error of procedure by the trial court 39. Apart from the above, yet another significant feature is that on the very first day of appearance i.e. on 18-1-2021, the appellant moved an application under Section 10 read with Section 151 CPC for stay of the suit proceedings on the ground that proceedings between the parties relating to the subject-matter of the suit were pending before NCLT. The respondent had earlier moved an application seeking directions of attachment before judgment in terms of Order 38 CPC. Both the applications as moved by the appellant as also by the respondent remained pending and, on 15-3-2021, the trial court adjourned the matter to 15-4-2021 for arguments on both these applications. On 15-4-2021, no business could - 8 - HC-KAR NC: 2025:KHC:30902 WP No. 21164 of 2024 be transacted and the matter was adjourned to 22-6-2021, again for arguments on these applications. Even when the matter was taken up on 22-6-2021 and the trial court declined the prayer of the appellant for another opportunity for filing the written statement, it did not take up the said applications for consideration and adjourned the matter to 9-7-2021. 39.1. We are not commenting on merits of the application moved by the appellant under Section 10 CPC but, it cannot be gainsaid that such an application, by its very nature, required immediate consideration and before any other steps in the suit. It needs hardly any emphasis that if the prayer made in the application moved under Section 10 were to be granted, the trial of the subject suit was not to be proceeded with at all. We find it rather intriguing that on one hand, the trial court itself posted the matter for consideration of that application along with the other application moved by the respondent but did not take them up on 22-6-2021 and adjourned the matter after declining the prayer for filing written statement. Even when the trial court considered the step of filing the written statement to be of importance in view of the time-limit and consequences stated in the statute, there was no justification that the trial court did not simultaneously take up the application under Section 10CPC for consideration. 39.2. We are constrained to reiterate the unquestionable principles that the rules of procedure are essentially intended to subserve the cause of justice and are not for punishment of the parties in conduct of the proceedings. Of course, in the ordinary circumstances, the mandates of Rule 1(1) of Order 5, Rule 1 of Order 8 as also Rule 10 of Order 8, as applicable to the commercial dispute of a specified value, do operate in the manner that after expiry of 120th day from the date of service of summons, the defendant forfeits the right to submit his written statement and the Court cannot allow the same to be taken on record but, these provisions are intended to provide the - 9 - HC-KAR NC: 2025:KHC:30902 WP No. 21164 of 2024 consequences in relation to a defendant who omits to perform his part in progress of the suit as envisaged by the rules of procedure and are not intended to override all other provisions of CPC like those of Section 10. These comments are necessitated for the reason that the trial court seems to have simply ignored the requirements of dealing with the pending applications with requisite expedition. We say no more. (Emphasis supplied) The Apex Court no doubt elucidates the procedural flexibility. It does nowhere dilute the legislative mandate, that in commercial disputes, the sanctity of timelines need not be observed. Thus the reliance placed upon the afore-quoted judgment in the context of the case, is misplaced. 12. Taking cue from the said observation, the learned counsel for the petitioners putforth the submission that if the defendants have filed an application seeking extension of time before the expiry of 120 days, it should be answered and accepted. The said submission, to say the least, is preposterous. As an illustration, if the defendant who has not filed the written statement in a commercial O.S., files an application on the 119th day and seeks time, no Court including this Court cannot extend the mandate of the statute qua the limitation in filing the written statement. Therefore, the submission is noted only to be rejected. The judgment relied upon would not assist to contend that the limitation of 120 days should be extended by a stroke of pen at the hands of this Court. Any other view would be to stretch procedural equity to the point of legislative subversion, qua commercial disputes. In view of the forgoing, this Court finds no legal infirmity, no procedural aberration or any trace of perversity in the impugned order. The writ petition being devoid of merit, stands rejected." In the light of the order being in tune with law, the order would not warrant any interference. However, I deem it appropriate to make it clear that examination or cross- examination during the trial should not be denied to the present petitioner-the defendant, in the Commercial - 10 - HC-KAR NC: 2025:KHC:30902 WP No. 21164 of 2024 O.S.No.965/2023, on the ground that no Written Statement is filed by the defendant. Finding no merit in the petition, accepting the aforesaid observations, the petition stands dismissed. Sd/- (M.NAGAPRASANNA) JUDGE CBC List No.: 1 Sl No.: 10 CT: BHK