The 120-Day Clock Applies to Plaintiffs Too: Written Statements to Counter-Claims in Commercial Suits

The question

In a commercial suit, a defendant who files a written statement is bound by a hard outer limit. The proviso to Order VIII Rule 1 of the Code of Civil Procedure, as it applies to commercial suits, allows no filing beyond 120 days from service of summons, and the right to file stands forfeited after that. Courts have no discretion to extend it.

A counter-claim reverses the roles. The defendant becomes, in substance, the one making a claim, and the plaintiff has to answer it. The question before the Court was whether that same mandatory timetable applies to the plaintiff's written statement to a counter-claim.

What happened below

By an order of 19 August 2024 a judge of the Calcutta High Court refused the plaintiffs leave to file a belated written statement to the counter-claim raised by the contesting defendants. A Division Bench dismissed the appeal, both on merits and on maintainability.

The plaintiffs came to the Supreme Court.

Two holdings, either of which was enough

First, on the merits. The mandatory time frame in the proviso to Order VIII Rule 1 does apply to the plaintiff's written statement to a counter-claim in a suit governed by the Commercial Courts Act. Read with Order VIII Rule 6E, the position is that the plaintiff answering a counter-claim is in the same procedural position as a defendant answering a plaint. The Court found the judge and the Division Bench fully justified in refusing leave, given the long delay.

Second, on maintainability. Section 13(1A) of the Commercial Courts Act allows an appeal to the Commercial Appellate Division. But its proviso restricts that right to orders specifically enumerated in Order XLIII of the Code of Civil Procedure as amended by the Act, and Section 37 of the Arbitration and Conciliation Act, 1996.

An order under Order VIII CPC is not in that list. So no appeal lay at all. The Court applied the principle that where a special Act sets out a self-contained code, the general law is impliedly excluded.

Why it matters in practice

• If you act for a plaintiff facing a counter-claim in a commercial suit, diarise the 120-day limit from service exactly as you would for a defendant. There is no separate, gentler regime.
• Before appealing any interlocutory order in a commercial suit, check it against the Order XLIII list and Section 37 of the Arbitration Act. If it is not there, the appeal is not merely weak, it is not maintainable.
• The self-contained code reasoning is the part worth citing. It is the reason the Act's silence operates as an exclusion rather than a gap to be filled by general law.

Who argued it

Frequently asked

Does the 120-day limit apply to a plaintiff answering a counter-claim?

Yes. The Supreme Court held that the mandatory time frame in the proviso to Order VIII Rule 1 CPC applies to the filing of a written statement by the plaintiff to a counter-claim in a suit governed by the Commercial Courts Act, 2015.

Can you appeal an order refusing leave to file a belated written statement?

No. An order under Order VIII CPC is not enumerated in Order XLIII CPC or Section 37 of the Arbitration and Conciliation Act, 1996, and Section 13(1A) of the Commercial Courts Act restricts appeals to those enumerated orders.

What is the citation?

A.K. Ghosh & Company and Others v. Biman Bose and Others, 2026 INSC 684, reported at [2026] 8 S.C.R. 185, decided on 12 July 2026.

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