Summons in a Commercial Suit: Written Statement Timelines and Ex Parte Risk

Receiving a court summons is one of the more stressful events in running a business, and in a commercial suit the margin for error is small. The Commercial Courts Act, 2015 modifies the CPC to make these cases move faster, and the most important change is the time limit for the defendant's written statement. A company that treats the summons as a routine item to be handled later can lose the right to defend.

What Is a Summons and What Does It Require?

A summons is the court's notice that a suit has been filed against you. It names the court, the case number and the date on which the defendant must appear, and it is accompanied by a copy of the plaint and the documents filed with it. It must be served in a manner recognised by the Code. For a company, Order XXIX of the CPC allows service on the secretary, a director or another principal officer, or by leaving the summons at the registered office. In commercial suits, service can also be made by courier and by email, in addition to the usual methods.

What Is the Deadline for the Written Statement?

In a commercial suit, the defendant must file the written statement within 30 days from the date of service of summons. If the defendant fails to do so, the court may allow it to be filed on a later date, for reasons recorded in writing and on payment of costs, but not later than 120 days from the date of service. After 120 days, the defendant's right to file a written statement is forfeited, and the court has no power to extend the time. The Supreme Court confirmed this strict position in SCG Contracts India v. K.S. Chamankar Infrastructure (2019).

In an ordinary civil suit, by contrast, the 30-day and 90-day limits for the written statement are treated as directory, and courts have sometimes allowed it later. The commercial regime is much stricter, so a business cannot rely on the court's indulgence.

What Must the Written Statement Contain?

The written statement is the defendant's main pleading, and it must be complete:

• A specific response to each allegation in the plaint, because allegations not denied can be treated as admitted
• Any preliminary objections, such as lack of jurisdiction, limitation or a defect in the suit
• The defendant's own version of the facts, with the documents relied on
• A counter-claim, if the defendant has a claim against the plaintiff arising from the same dispute
• A statement of truth verifying the pleading
• A list of documents the defendant relies on, filed along with the pleading

In commercial suits, documents must be disclosed early, and a defendant who does not file a document with the written statement may need the court's leave to rely on it later, which is granted only for reasonable cause. The pleadings of a company are signed and verified by a director, secretary or other principal officer who can speak to the facts, as Order XXIX permits, supported by a board resolution or authority letter.

What Should You Do Immediately?

The first days matter, and the following steps are recommended:

• Note the date of service and calculate the 30-day and 120-day dates
• Hand the papers to an advocate at once, and give a vakalatnama so that an appearance can be entered
• Check the summons for the court, the case number and whether it is a commercial suit or an Order 37 summary suit
• Collect the contract, invoices, correspondence and any records of the dispute
• Check for an arbitration clause, since a Section 8 application must precede your first statement on the merits
• Check whether the plaintiff completed pre-institution mediation, and whether the suit is within limitation

If the suit is a summary suit under Order 37, different and shorter timelines apply, and a defendant must apply for leave to defend, as we explain in our guide to the Order 37 summary suit. Missing a ten-day window there can produce a decree.

What Defences Can Be Raised at the Threshold?

Some objections should be raised early and not left for the end. An application for rejection of the plaint under Order VII Rule 11 can be made where the plaint discloses no cause of action, is barred by law or by limitation, or is filed without the compulsory pre-institution mediation; see our notes on rejecting a plaint under Order VII Rule 11 and pre-institution mediation under Section 12A. A challenge to the court's jurisdiction, or a request to refer the dispute to arbitration, is also best made at the start.

What Happens If You Do Not Appear?

If the defendant does not appear after being served, the court can proceed ex parte under Order IX Rule 6, hear the plaintiff's evidence and pass a decree without hearing the defendant. Where the defendant appears but does not file a written statement within the time allowed, the court can pronounce judgment against them on the basis of the plaint under Order VIII Rule 10.

Can an Ex Parte Decree Be Set Aside?

Yes, but within a narrow window. Under Order IX Rule 13, a defendant can apply to set aside an ex parte decree by showing that the summons was not duly served, or that they were prevented by sufficient cause from appearing when the suit was called. The application must be filed within 30 days of the decree, or if the summons was not duly served, within 30 days of the date the defendant came to know of the decree. A defendant can also appeal against an ex parte decree. Courts expect the defendant to explain the delay candidly and to show that they have a defence worth hearing, and costs are likely.

How Does This Fit With the Wider Dispute?

The defendant's response is also an opportunity: a counter-claim lets a company seek its own dues in the same case, and a settlement through mediation remains possible at any stage. For an overview of how a commercial suit is classified, see our note on what counts as a commercial dispute, and for the plaintiff's side, see recovering dues from a company that is not paying.

If your company has been served with summons, the first week is critical. Our Commercial Disputes practice acts for defendants in commercial suits, and you can request a consultation immediately.