Ex Parte Order Recall Can't Revive Right To File Written Statement After 120 Days: Kerala High Court

The Kerala High Court has held that setting aside an ex parte order in a commercial suit does not revive a defendant's right to file a written statement after the expiry of the mandatory 120-day deadline under the Code of Civil Procedure (CPC), 1908.

Justice Easwaran S dismissed a petition filed by Anwar Basheer and Basheer challenging the Commercial Court, Thiruvananthapuram's refusal to accept their belated written statement in a commercial suit filed by Abaan Impex Private Limited. The Bench observed:

“The argument might have merit in an ordinary suit. In a commercial suit, however, the procedure is strictly governed by the proviso to Rule 1 of Order VIII of the CPC, which imposes an outer limit of 120 days.”

Abaan Impex filed the commercial suit seeking recovery of Rs. 5.63 crore, along with 18% interest on the principal amount of Rs. 4.59 crore.

The defendants received summons on 2 June 2025 and were required to file their written statement within 30 days. The outer limit of 120 days expired on 2 October 2025. However, they were set ex parte on 9 September 2025.

After receiving notice of Abaan Impex's application to amend the plaint schedule, the defendants entered appearance on 29 November 2025 but did not file their written statement. They filed it only on 27 January 2026, along with applications to set aside the ex parte order and accept the written statement.

The Commercial Court rejected the applications, prompting the defendants to approach the High Court. They argued that setting aside the ex parte order would restore them to the position they occupied on 9 September 2025, when they still had 22 days to file their written statement.

Abaan Impex opposed the plea, contending that the procedure for setting aside an ex parte order could not be used to circumvent the mandatory 120-day deadline applicable to commercial suits.

The Court noted that under the proviso to Order VIII Rule 1 of the CPC, as applicable to commercial disputes, a defendant must file a written statement within 30 days of receiving summons. It may extend this period on an application, but cannot accept the written statement beyond 120 days. Upon expiry of this period, the defendant forfeits the right to file the written statement.

It acknowledged that the defendants' argument that setting aside the ex parte order would restore their earlier position was “prima facie persuasive”. However, it held that the argument failed to account for the distinct procedural requirements governing commercial suits.

Further, the Bench observed that had the defendants applied to set aside the ex parte order and sought permission to file their written statement within the 22 days remaining from 9 September 2025, they might have been able to restore the proceedings to the position they occupied when they were set ex parte.

It held that “Order IX Rule 7 cannot operate as an exception to the proviso to Rule 1 of Order VIII.” It also added that allowing defendants to contest commercial suits on the basis of written statements filed beyond the 120-day limit would render the amendment introduced by Section 16 of the Commercial Courts Act, 2015, meaningless.

Accordingly, the High Court dismissed the petition while clarifying that the defendants could still participate in the trial and cross-examine the plaintiff on the issues raised in the plaint.

For Petitioners: Advocates K.B Pradeep and Aneeta Nirmal Mamen

For Respondent: Advocates Anoop Bhaskar