By S&S Co. Advocates & Solicitors · Published 27 October 2026 · Informational content, not legal advice: see our disclaimer
Defendants in ordinary civil suits are used to a fair amount of give in filing their written statement. A short delay, a request for more time, a vakalatnama filed a week late, courts generally work with it. Commercial suits under the Commercial Courts Act, 2015 do not work that way, and a defendant who treats the deadline casually can lose the right to defend the suit on the merits entirely, however strong the defence actually is.
The rule is simple to state and brutal to live through once it has run out: file within 120 days of service of summons, or lose the right to file at all. The Supreme Court closed off every obvious escape route from that deadline in a 2019 ruling that commercial litigators now treat as settled law.
The 120-Day Rule Under Order VIII Rule 1
Order VIII Rule 1 of the Code of Civil Procedure, 1908 ordinarily gives a defendant 30 days from service of summons to file a written statement, extendable to 90 days for reasons recorded in writing. The Commercial Courts Act, 2015 added a proviso specific to commercial disputes that caps the outer limit at 120 days from the date of service, and states in terms that the right to file a written statement is forfeited if it is not filed within that period.
This proviso is deliberately harsher than the general civil procedure rule, and that is the point of it. Commercial suits are meant to move fast, and the legislature decided that a defendant's delay in filing a defence should not be allowed to stall the proceeding the way it routinely did under the ordinary civil procedure timeline. A defendant counting on the usual judicial generosity around procedural deadlines is working from the wrong playbook from day one of a commercial suit.
SCG Contracts: The Supreme Court Shuts the Door
In SCG Contracts India Pvt. Ltd. v. K.S. Chamankar Infrastructure Pvt. Ltd., 2019 INSC 187, decided 12 February 2019, the defendant had not filed its written statement within 120 days of service and instead filed an application under Order VII Rule 11 seeking rejection of the plaint. The Delhi High Court allowed the written statement to be taken on record beyond the 120-day period. The Supreme Court reversed that, holding that courts have no power under the Commercial Courts Act regime to take a written statement on record once the 120-day period has expired.
The Court held specifically that a pending Order VII Rule 11 application is no ground for extending the time to file a written statement, and rejected the idea that a defendant could use a plaint-rejection plea as a device to buy more time while effectively doing nothing about actually filing its defence. The pendency of a rejection application and the obligation to file a written statement within the fixed window run on entirely separate tracks, and a defendant cannot treat the first as a substitute for, or an excuse to delay, the second.
The Court went further on the question of inherent power, holding that a court cannot use its inherent power under Section 151 of the CPC to get around the 120-day bar either. Once the proviso under the Commercial Courts Act sets an absolute outer limit, no general procedural discretion survives to soften it, whatever sympathy a judge might otherwise have for a defendant who missed the date by a matter of days.
What Forfeiture Actually Means in Practice
Once the 120 days run out without a written statement on file, the defendant does not get a quiet second chance by filing one anyway and hoping the court accepts it informally, or by raising its defence orally during arguments, or by annexing a defence through an affidavit in some other application. The forfeiture is of the right to file a written statement at all, and a court applying SCG Contracts correctly will simply decline to take a late written statement on record, whatever reasons are offered for the delay.
A defendant in that position is not entirely without voice in the suit. It can still cross-examine the plaintiff's witnesses, argue points of law, and contest the suit on the material the plaintiff itself brings on record, since forfeiture of the written statement is not the same as being struck off the suit altogether. What it cannot do is place its own version of the facts, its own documents and its own defence narrative before the court through a written statement, which in most contested commercial disputes is a serious practical handicap rather than a technical inconvenience.
Counting the 120 Days Correctly
The clock starts running from the date of service of summons, not from the date of filing of the suit, not from the date a vakalatnama is filed, and not from the first date the matter is listed before the court. A defendant served through a process server, by registered post, by courier, or by any other mode the court has permitted all gets the same 120-day window running from whichever service actually counts as effective under the applicable rules, and disputes about the exact date of service are themselves worth raising early rather than assuming the date is obvious.
Where there are multiple defendants served on different dates, each defendant's own 120 days runs from its own date of service, so one defendant's delay does not automatically contaminate or extend another defendant's position, and counsel handling a multi-defendant commercial suit should track each client's deadline separately rather than assuming a shared calendar.
What a Defendant Should Actually Do
The only safe approach is to calendar the 120-day deadline the moment summons is served and treat it as immovable, filing the written statement well inside that window even if the defence is still being refined, rather than waiting for a more complete draft that risks slipping past the line. A written statement filed on day 100 with room for later amendment, where amendment is otherwise permissible, is vastly better than a more polished one filed on day 125 that a court has no power to accept.
If there is a genuine case for rejecting the plaint under Order VII Rule 11, file that application, but file the written statement as well, on time, rather than treating the rejection application as a reason to hold off. SCG Contracts makes clear the two obligations do not trade off against each other, and a defendant who gambles on the plaint being thrown out before a written statement is due can end up with neither relief, an undecided rejection application and a suit it can no longer defend on the merits.
Frequently Asked Questions
Does filing an Order VII Rule 11 application give me more time to file my written statement?
No. The Supreme Court in SCG Contracts held that a pending application to reject the plaint is no ground for extending the 120-day deadline. Both have to be pursued on their own separate timelines, and filing one does not pause the clock running on the other in any way.
Can the court use its inherent powers to accept a late written statement in a commercial suit?
No. SCG Contracts specifically held that courts cannot invoke their inherent power under Section 151 of the CPC to get around the 120-day bar once it has run out, however sympathetic the judge might be to a defendant who missed the date by only a short margin.
If I miss the deadline, am I out of the suit entirely?
No. You lose the right to file a written statement, but you can still cross-examine the plaintiff's witnesses and argue points of law based on the plaintiff's own evidence and documents. You simply cannot place your own version of the facts and your own defence narrative on record.
When does the 120-day clock actually start running?
From the date of service of summons on the defendant, not from the date the suit was filed or the first hearing before the court. With multiple defendants served on different dates, each one's own 120 days runs separately from their own date of service, not from a shared calendar.
References & Further Reading
The provisions and rulings below were relied on for this guide. The position can change with amendments and later decisions, so check the current text and the latest case law before acting on any of it.
- Code of Civil Procedure, 1908, Order VIII Rule 1, proviso inserted by the Commercial Courts Act, 2015
- Commercial Courts Act, 2015
- SCG Contracts India Pvt. Ltd. v. K.S. Chamankar Infrastructure Pvt. Ltd., 2019 INSC 187, Supreme Court, decided 12 February 2019
- Code of Civil Procedure, 1908, Order VII Rule 11 and Section 151