PRAKASH CORPORATES versus DEE VEE PROJECTS LIMITED

15. In another part of the arguments in the present case, an administrative order dated 05.04.2021 issued by the High Court of Chhattisgarh has also come under reference. That order was issued by the High Court in the wake of alarming number of COVID-19 cases in the State of Chhattisgarh; and, in the given circumstances, the High Court was rather forced to provide for limited and curtailed functioning of the Courts in its jurisdiction. The relevant parts of the said order dated 05.04.2021 could also be extracted as under: – PRAKASH CORPORATES v. DEE VEE PROJECTS LIMITED [DINESH MAHESHWARI, J.] “HIGH COURT OF CHHATTISGARH, BILASPUR ORDER No. 66 (Mis.) / 11-14-1/2021 Bilaspur, dated 05th April, 2021 Hon’ble High Court of Chhattisgarh has been pleased to make the following arrangements in respect of functioning of the High Court and Subordinate Courts of the State of Chhattisgarh in view of the alarming and mounting number of COVID-19 cases in the State of Chhattisgarh until further orders as under: – **** **** **** B-SUBORDINATE COURTS [District and Sessions Judge / Principal Judge / Judge of the Family Court / Judge Commercial Court / Special Judge (SC/ ST), Member Judge (Industrial Court), Judge (Labour Court) etc.] – w.e.f. 06.04.2021:- All the above arrangements shall be subject to further modification, if any issued from time to time. By order of Hon’ble the High Court Sd/- 05.04.21 (Sanjay Kumar Jaiswal) I/c. Registrar General Bilaspur.” (emphasis supplied) Time limit for filing written statement and consequences of default

16. For dealing with the rival submissions, in the first place, we need to take into account the time limits for filing written statement in a PRAKASH CORPORATES v. DEE VEE PROJECTS LIMITED [DINESH MAHESHWARI, J.] suit governed by the provisions of the Commercial Courts Act, 2015. As noticed, by virtue of Section 16 thereof, the Commercial Court is to follow the provisions of CPC as amended by the Act in the trial of a suit in respect to a Commercial dispute of a Specified Value. The relevant provisions contained in Order V Rule 1, Order VIII Rule 1 and Order VIII Rule 10 CPC, have been reproduced hereinabove; and it is manifest that the said provisions not only envisage strict timelines for filing of written statement but even provide for consequences of default, while restricting the powers of the Court to extend the time for filing written statement beyond the period prescribed. Tersely put, as per the mandate of the said provisions: (a) the defendant is under an obligation to file the written statement of his defence within 30 days of service of summons; (b) if he fails to file the written statement within the said period of 30 days, he may be allowed to file the written statement on such other day as the Court may specify for reasons to be recorded in writing and on payment of such costs as the Court may impose but this other day, in any case, cannot go beyond 120 days from the date of service of summons; (c) on expiry of 120th day from the date of service of summons, the defendant forfeits the right to file the written statement and no Court can make an order to extend such time beyond 120 days from the date of service of summons. These aspects were underscored by this Court in the case of SCG Contracts (supra) in no uncertain terms. In that case, the Single Judge of the High Court, after rejecting an application made by the defendant under Order VII Rule 11 CPC, proceeded to grant some time to the defendant for filing his written statement beyond the aforesaid mandatory period of 120 days. Later on, the plaintiff’s prayer for not taking the written statement on record was rejected by the High Court on the ground that the earlier order permitting such filing of written statement had attained finality. This Court disapproved the orders so passed by the High Court with reference to the aforesaid amended provisions of Order V Rule 1(1), Order VIII Rule 1 and Order VIII Rule 10 CPC. While explaining the sweep and mandate of these provisions, this Court said, – “8………A perusal of these provisions would show that ordinarily a written statement is to be filed within a period of 30 days. However, grace period of a further 90 days is granted which the Court may employ for reasons to be recorded in writing and payment of such costs as it deems fit to allow such written statement to come on record. What is of great importance is the fact that beyond 120 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. This is further buttressed by the proviso in Order VIII Rule 10 also adding that the Court has no further power to extend the time beyond this period of 120 days.” This Court also made it clear that these mandatory provisions cannot be circumvented even by recourse to inherent powers under Section 151 CPC while observing as under: – “16……Clearly, the clear, definite and mandatory provisions of Order V read with Order VIII Rule 1 and Rule 10 cannot be circumvented by recourse to the inherent power under section 151 to do the opposite of what is stated therein.”

17. If the aforesaid provisions and explained principles are literally and plainly applied to the facts of the present case, the 120th day from the date of service of summons came to an end with 06.05.2021 and the defendant, who had earlier been granted time for filing its written statement on payment of costs, forfeited such right with the end of 120th day, i.e., 06.05.2021. However, it is required to be kept in view that the provisions aforesaid and their interpretation in SCG Contracts (supra) operate in normal and non-extraordinary circumstances with the usual functioning of Courts. It is also noteworthy that the above referred provisions of CPC are not the only provisions of law which lay down mandatory timelines for particular proceedings. The relevant principles, in their normal and ordinary operation, are that such statutory timelines are of mandatory character with little, or rather no, discretion with the Adjudicating Authority for enlargement. The question in the present case is, as to whether the said provisions and principles are required to be applied irrespective of the operation and effect of other orders passed/ issued by the Courts under the force of aberrant, abnormal and extraordinary circumstances? In our view, the answer to this question cannot be in the affirmative for a variety of reasons, as indicated infra. Operation and effect of the orders passed in SMWP No. 3 of 2020

18. It is not a matter of much debate that, starting from or around the month of December, 2019, the entire humanity faced a situation which was unprecedentedly unfavourable and unpleasant to almost all PRAKASH CORPORATES v. DEE VEE PROJECTS LIMITED [DINESH MAHESHWARI, J.] the persons and the institutions. It was the outbreak of COVID-19 pandemic that engulfed practically the entire globe; and the highly contagious virus called SARS-CoV-2 started playing havoc with its rapid transmission from one person to another. COVID-19 carried with it the scary possibilities of irretrievable damage to the respiratory systems, even leading to deaths. In fact, the number of fatalities due to this infection had been beyond imagination with survivors also living under a constant threat. The unprecedented health emergencies due to highly transmissible COVID-19 virus led the administrations to take various containment measures, including those of travel restrictions and lockdowns as also of isolating the infected persons while putting their close contacts in quarantine. 18.1. We need not elaborate on the havoc created by COVID-19 but the relevant aspect for the present purpose is that with COVID-19, the movement of persons and working of almost all the institutions landed in such difficulties which were neither foreseen nor guarded against.

19. When the movements and gatherings of persons were fraught with dangers and when lockdowns became inevitable, the institutions related with the task of administration of justice were also required to respond to the challenges thrown by this pandemic. In this regard, this Court, apart from taking various measures of containment, also took note of the practical difficulties of the litigants and their lawyers; and this led to the suo motu order dated 23.03.2020 in SMWP No. 3 of 2020. 19.1. In the consciously worded order dated 23.03.2020, this Court, while taking note of the difficulties likely to be faced by the litigants in filing their petitions/applications/suits/appeals/proceedings within the period of limitation, ordered that the period of limitation in all such proceedings, irrespective of the limitation prescribed under general or special laws, whether condonable or not, shall stand extended w.e.f. 15.03.2020 until further orders. This order was passed in exercise of plenary powers of this Court under Article 142 of the Constitution of India, which are complementary to other powers specifically conferred by various statutes. Even if the above referred provisions of CPC had not been stated in specific terms, the general mandate of the order dated 23.03.2020 was to extend the period of limitation provided in any law for the time being in force, irrespective whether the same was condonable or not, w.e.f. 15.03.2020 and until further orders. Noticeably, on 06.05.2020, when special periods of limitation under different enactments like the Act of 1996 were referred to, this Court further ordered that the limitation prescribed thereunder shall stand extended w.e.f. 15.03.2020 until further orders. It was a time when the country was under the grip of lockdown, and the Court provided that in case limitation had expired after 15.03.2020, the period between 15.03.2020 and lifting of lockdown in the jurisdictional area would be extended for a period of 15 days after lifting of lockdown. 19.2. Further, on 10.07.2020, this Court enlarged the scope of initial order in relation to the timelines fixed in Section 29-A and Section 23(4) of the Act of 1996. Significantly, Section 23(4) of the Act of 1996 mandates that the statement of claim and defence shall be completed within a time period of six months. Yet further, it was also provided that the time for completing the process of compulsory pre-litigation mediation under Section 12-A of the Commercial Courts Act, 2015 shall stand extended for 45 days after lifting of lockdown. 19.3. On 08.03.2021, suggestions were made before this Court about lifting of lockdowns and likely return of normalcy and, therefore, this Court considered it proper to dispose of the said suo motu petition with specific directions that while computing the period of limitation for any suit, appeal, application or proceeding, the period from 15.03.2020 to 14.03.2021 would stand excluded. Though the said order dated 08.03.2021 was passed with a belief that the adverse effects of the pandemic were receding and normalcy was returning but, the spread of virus continued and this led to an exponential surge in COVID-19 cases; and to the second wave of pandemic in the country around the months of March-April, 2021. In this turn of events, this Court again took up the matter in SMWP No. 3 of 2020 on MA No. 665 of 2021, as moved by the Supreme Court Advocate-on-Record Association and passed the necessary order on 27.04.2021 in revival of the previous orders. 19.4. At this juncture, we are impelled to refer to the fact that much before passing of the order dated 27.04.2021 by this Court, the alarming scenario due to the second wave of pandemic was indeed taken note of by the High Court of Chhattisgarh; and that High Court issued the above-referred administrative order dated 05.04.2021 for curtailed/ truncated functioning of the High Court as also the subordinate Courts. We shall elaborate on this aspect in the next segment of discussion but, have indicated the same at this juncture to highlight the fact that even PRAKASH CORPORATES v. DEE VEE PROJECTS LIMITED [DINESH MAHESHWARI, J.] before passing of the order dated 27.04.2021 by this Court in SMWP No. 3 of 2020, the Trial Court dealing with the subject suit was already under containment measures; and could not have functioned normally. 19.5. Reverting to the orders passed by this Court, noticeable it is that on 27.04.2021, this Court restored the order dated 23.03.2020 and it was directed, in continuation of the order dated 08.03.2021, that the periods of limitation as prescribed under any general or special laws in respect of all judicial or quasi-judicial proceedings, whether condonable or not, shall stand extended. Ultimately, the said MA No. 665 of 2021 was disposed of on 23.09.2021 with this Court issuing directions similar to those contained in the order dated 08.03.2021 but while providing that in computing the period of limitation for any suit, appeal, application or proceeding, the period from 15.03.2020 till 02.10.2021 shall stand excluded. 19.6. We are not elaborating on other directions issued by this Court but, when read as a whole, it is but clear that the anxiety of this Court had been to obviate the hardships likely to be suffered by the litigants during the onslaughts of this pandemic. Hence, the legal effect and coverage of the orders passed by this Court in SMWP No. 3 of 2020 cannot be unnecessarily narrowed and rather, having regard to their purpose and object, full effect is required to be given to such orders and directions.9

20. As regards the operation and effect of the orders passed by this Court in SMWP No. 3 of 2020, noticeable it is that even though in the initial order dated 23.03.2020, this Court provided that the period of limitation in all the proceedings, irrespective of that prescribed under general or special laws, whether condonable or not, shall stand extended w.e.f. 15.03.2020 but, while concluding the matter on 23.09.2021, this Court specifically provided for exclusion of the period from 15.03.2020 9 To complete the scenario, we may indicate in the passing that even after we had heard this matter, there had been re-surge of COVID-19 cases with spread of a new variant of the virus. The drastic re-surge in the number of COVID cases has led this Court to again deal with the matter in SMWP No. 3 of 2020 on an application bearing No. 21 of 2022; and by the order dated 10.01.2022, this Court again restored the principal order dated 23.03.2020 and in continuation of the previous orders, has further directed that the period from 15.03.2020 till 28.02.2022 shall stand excluded for the purposes of limitation as may be prescribed under any general or special laws in respect of all judicial or quasi- judicial proceedings. Be that as it may, the fresh order in SMWP No.3 of 2020 need not be elaborated for the present purpose. till 02.10.2021. A look at the scheme of the Limitation Act, 1963 makes it clear that while extension of prescribed period in relation to an appeal or certain applications has been envisaged under Section 5, the exclusion of time has been provided in the provisions like Sections 12 to 15 thereof. When a particular period is to be excluded in relation to any suit or proceeding, essentially the reason is that such a period is accepted by law to be the one not referable to any indolence on the part of the litigant, but being relatable to either the force of circumstances or other requirements of law (like that of mandatory two months’ notice for a suit against the Government10). The excluded period, as a necessary consequence, results in enlargement of time, over and above the period prescribed. 20.1. Having regard to the purpose for which this Court had exercised the plenary powers under Article 142 of the Constitution of India and issued necessary orders from time to time in SMWP No. 3 of 2020, we are clearly of the view that the period envisaged finally in the order dated 23.09.2021 is required to be excluded in computing the period of limitation even for filing the written statement and even in cases where the delay is otherwise not condonable. It gets perforce reiterated that the orders in SMWP No. 3 of 2020 were of extraordinary measures in extraordinary circumstances and their operation cannot be curtailed with reference to the ordinary operation of law. 20.2. In other words, the orders passed by this Court on 23.03.2020, 06.05.2020, 10.07.2020, 27.04.2021 and 23.09.2021 in SMWP No. 3 of 2020 leave nothing to doubt that special and extraordinary measures were provided by this Court for advancing the cause of justice in the wake of challenges thrown by the pandemic; and their applicability cannot be denied in relation to the period prescribed for filing the written statement. It would be unrealistic and illogical to assume that while this Court has provided for exclusion of period for institution of the suit and therefore, a suit otherwise filed beyond limitation (if the limitation had expired between 15.03.2020 to 02.10.2021) could still be filed within 90 days from 03.10.2021 but the period for filing written statement, if expired during that period, has to operate against the defendant. 20.3. Therefore, in view of the orders passed by this Court in SMWP No. 3 of 2020, we have no hesitation in holding that the time limit 10 Vide Section 15 of the Limitation Act, 1963. PRAKASH CORPORATES v. DEE VEE PROJECTS LIMITED [DINESH MAHESHWARI, J.] for filing the written statement by the appellant in the subject suit did not come to an end on 06.05.2021.

21. It is also noteworthy that even before the scope of the orders passed in SMWP No. 3 of 2020 came to be further elaborated and specified in the orders dated 08.03.2021 and 23.09.2021, this Court dealt with an akin scenario in the case of SS Group Pvt. Ltd. (supra), decided on 17.12.2020. In that case, in terms of Section 38(2)(a) of the Consumer Protection Act, 2019, 30 days’ time provided for filing the written statement expired on 12.08.2020 and the extendable period of 15 days also expired on 27.08.2020. Admittedly, the written statement was filed on 31.08.2020, which was beyond the permissible period of 45 days. The Constitution Bench of this Court has held in the case of New India Assurance Co. Ltd. v. Hill Multipurpose Cold Storage (P) Ltd.: (2020) 5 SCC 757 that the Consumer Court has no power to extend the time for filing response to the complaint beyond 45 days. After taking note of the applicable provisions of law as also the mandate of Constitution Bench, this Court referred to the orders until then passed in SMWP No. 3 of 2020 and held that the limitation for filing written statement would be deemed to have been extended. This Court, inter alia, observed and held as follows: – “12: In the present matter, it is an admitted fact that the period of limitation of 30 days to file the written statement had expired on 12.08.2020 and the extended period of 15 days expired on 27.08.2020. This period expired when the order dated 23.03.2020 passed by this Court in SMW(C) No. 3 of 2020 was continuing. 13: In view of the aforesaid, in our opinion, the limitation for filing the written statement in the present proceedings before the National Commission would be deemed to have been extended as it is clear from the order dated 23.03.2020 that the extended period of limitation was applicable to all petitions/applications/suits/appeals and all other proceedings. As such, the delay of four days in filing the written statements in the pending proceedings before the National Commission deserves to be allowed, and is accordingly allowed.”

22. The enunciations aforesaid do not support the case of the respondent but, the learned senior counsel appearing for the respondent has relied upon two other decisions in support of his contentions. We may refer to the same to find out if they would apply and make out any case in favour of the respondent. 22.1. The case of S. Kasi (supra) related to default bail plea of the accused-appellant for the reason that the charge-sheet had not been filed within the time permitted by Section 167(2) CrPC. The High Court took the view that the said order dated 23.03.2020 in SMWP No. 3 of 2020 would eclipse all the provisions prescribing the period of limitation, including that prescribed under Section 167(2) CrPC. This Court referred to the reasons for passing the orders in the said suo motu petition and the difficulties sought to be taken care of; and found that an investigating officer was not prevented from such difficulties as were faced by the lawyers and litigants; and the investigating officer could have submitted the charge-sheet before the Magistrate (Incharge). This Court observed and held as under: – “17: The limitation for filing petitions/applications/suits/appeals/ all other proceedings was extended to obviate lawyers/litigants to come physically to file such proceedings in respective Courts/ Tribunals. The order was passed to protect the litigants/lawyers whose petitions/applications/suits/appeals/all other proceedings would become time barred they being not able to physically come to file such proceedings. The order was for the benefit of the litigants who have to take remedy in law as per the applicable statute for a right. The law of limitation bars the remedy but not the right. When this Court passed the above order for extending the limitation for filing petitions/applications/suits/appeals/all other proceedings, the order was for the benefit of those who have to take remedy, whose remedy may be barred by time because they were unable to come physically to file such proceedings. The order dated 23.03.2020 cannot be read to mean that it ever intended to extend the period of filing charge sheet by police as contemplated under Section 167(2) of the Code of Criminal Procedure. The Investigating Officer could have submitted/filed the charge sheet before the (Incharge) Magistrate. Therefore, even during the lockdown and as has been done in so many cases the charge- sheet could have been filed/submitted before the Magistrate (Incharge) and the Investigating Officer was not precluded from filing/submitting the charge-sheet even within the stipulated period before the Magistrate (Incharge).” PRAKASH CORPORATES v. DEE VEE PROJECTS LIMITED [DINESH MAHESHWARI, J.] 22.1.1. In fact, in the said case, this Court also noticed that a co- ordinate Bench of the same High Court had already held that the said order dated 23.03.2020 did not cover the offences for which Section 167 CrPC was applicable but, in the order impugned, the other learned Single Judge of the same High Court took a view contrary to the earlier decision of the co-ordinate Bench; and that was found to be entirely impermissible. In any case, the said decision, concerning the matter of personal liberty referable to Article 21 of the Constitution of India and then, relating to the proceedings to be undertaken by an investigating officer, cannot be applied to the present case relating to the matter of filing written statement by the defendant in a civil suit. 22.2. So far as the decision of this Court in Sagufa Ahmed (supra) is concerned, a few relevant factors related with the said case need to be noticed. In that case, the appellants had moved an application before Guwahati Bench of the National Company Law Tribunal for winding up of the respondent company. The petition was dismissed on 25.10.2019. The appellants applied for a certified copy of the order dated 25.10.2019 only on 21 or 22.11.2019 and received the certified copy of the order through their counsel on 19.12.2019. However, the appellants filed the statutory appeal before the National Company Law Appellate Tribunal only on 20.07.2020 with an application for condonation of delay. The Appellate Tribunal dismissed the application for condonation of delay on the ground that it had no power to condone the delay beyond a period of 45 days. Consequently, the appeal was also dismissed. In that case, it was indisputable that even while counting from 19.12.2019, the period of 45 days expired on 02.02.2020 and another period of 45 days, for which the Appellate Tribunal could have condoned the delay, also expired on 18.03.2020. To overcome this difficulty, the appellants relied upon the aforesaid order dated 23.03.2020. This Court observed that the appellants were not entitled to take refuge under the above order in SMWP No. 3 of 2020 because what was extended was only the period of limitation and not the period up to which delay could be condoned in exercise of discretion conferred by the statute. This Court said thus: – “17. …… What was extended by the above order of this Court was only “the period of limitation” and not the period up to which delay can be condoned in exercise of discretion conferred by the statute. The above order passed by this Court was intended to benefit vigilant litigants who were prevented due to the pandemic and the lockdown, from initiating proceedings within the period of limitation prescribed by general or special law. It is needless to point out that the law of limitation finds its root in two Latin maxims, one of which is vigilantibus et non dormientibus jura subveniunt which means that the law will assist only those who are vigilant about their rights and not those who sleep over them.” 22.2.1. One of the significant facts to be noticed is that the said decision in Sagufa Ahmed case was rendered by a 3-Judge Bench of this Court much before the aforesaid final orders dated 08.03.2021 and 27.09.2021 in SMWP No. 3 of 2020 by another 3-Judge Bench of this Court. In those final orders, this Court not only provided for the extension of period of limitation but also made it clear that in computing the period of limitation for any suit, appeal, application or proceeding, the period from 15.03.2020 to 02.10.2021 shall stand excluded. Such proposition of exclusion, which occurred in the later orders, was not before this Court in the case of Sagufa Ahmed (supra), which was decided much earlier i.e., on 18.09.2020. 22.2.2. Moreover, the extendable period in the case of Sagufa Ahmed (supra) was up to 18.03.2020; and this Court found that lockdown was imposed only on 24.03.2020 and there was no impediment in filing the appeal on or before 18.03.2020. The present one is a case where the prescribed extendable time for filing of the written statement expired on 06.05.2021. It is not the case of the respondent nor there is any observation in the orders impugned that at the relevant point of time, the area in question was not a containment zone or that such a normalcy was available where the appellant could have filed its written statement. 22.2.3. Having regard to the orders subsequently passed by the 3-Judge Bench of this Court in SMWP No. 3 of 2020 (and MA No. 665 of 2021 therein), as also having regard to the fundamental difference of facts and the surrounding factors, the said decision in Sagufa Ahmed, in our view, is also of no application to the present case.

23. On behalf of the respondent, much emphasis has been laid on the submission that the appellant was regularly appearing in the Court and, therefore, cannot take advantage of the orders passed in SMWP No. 3 of 2020. It is true that the appellant had indeed caused appearance in the Court in response to the summons and sought time for filing its PRAKASH CORPORATES v. DEE VEE PROJECTS LIMITED [DINESH MAHESHWARI, J.] written statement but at the same time, it is also undeniable that at the relevant point of time, the second wave of pandemic was simmering and then, it engulfed the country with rather unexpected intensity and ferocity. Then, on 27.04.2021, this Court restored the operation of the order dated 23.03.2020 in SMWP No. 3 of 2020. Putting all these factors together, we are unable to accept the submissions made on behalf of the respondent that because of earlier appearance or prayer for adjournment, the defendant-appellant would not be entitled to the relaxation available under the extraordinary orders passed by this Court. Implication and effect of the administrative order issued by the High Court

24. Apart from the above, in our view, the impugned orders cannot be approved for yet another major factor, being that of the implication and effect of the administrative order issued by the jurisdictional High Court.

25. As noticed, on 15.04.2021, the Trial Court had specifically fixed the matter for arguments on two applications: one being the application of the appellant seeking stay of suit proceedings in terms of Section 10 CPC and another being the application moved by the respondent seeking interim directions of attachment before judgment in terms of Order XXXVIII Rule 5 CPC. However, on 15.04.2021, the Trial Court could not hear the parties on the said two applications and adjourned the matter to 22.06.2021 with reference to its own administrative order dated 07.04.2021 as also the High Court’s administrative order dated 05.04.2021. We have reproduced the relevant part of the said administrative order of the High Court hereinbefore and it is but clear that its effect was of providing truncated/curtailed functioning of subordinate Courts in view of the pandemic; and the directions had been of limited court functioning, even in terms of hours of working, essentially for the purpose of the cases of urgent nature. The proceedings in the subject suit were neither of urgent nature nor were considered so by the Trial Court. It was for this reason that on 15.04.2021, the Trial Court simply adjourned the matter beyond two months. 25.1. It is absolutely clear that during the operation of the said order dated 05.04.2021, the subordinate Courts under the superintendence of the High Court of Chhattisgarh (which include the Trial Court related with the subject suit) could not have been considered functioning in a normal manner and for the whole of normal working days and hours. The period during which the said order dated 05.04.2021 was operative, could have only been considered dies non juridicus, i.e., the dayson which the Courts do not ordinarily sit or carry-on business, particularly in regard to any period of limitation. In P. Ramanatha Aiyar’s Law Lexicon11 the concept of dies non juridicus is explained, inter alia, in the following terms: – “Dies non. (Lat.) A day which is regarded by the law as one on which no judicial act can be performed, or legal diligence used. (Trayner) (Shortened form of Dies non juridicius). A day not juridical, a day exempt from Court proceedings, such as a holiday or a Sunday. A day on which the Courts do not ordinarily sit or carry on business; a day on which general business may not lawfully be transacted. A day on which a Law-Court is not held. A day that is not counted for some purpose. For example, Saturday and Sunday are not counted as days of the working week. xxx xxx xxx An abbreviation of the phrase “dies non juridicus”, non-judicial days-days during which the Courts do not transact any business- as Sunday or the legal holidays. (Havens v. Stiles, 56 LRA 736). It is frequently said that Sunday is “die non juridicus”, but this means only that process cannot ordinarily issue or be executed or returned, and Courts do not usually sit, on that day. It does not mean that no judicial action be had on that day. On the contrary, it is laid down in books of authority that warrants for treason, felony and breach of the peace may be issued and executed on that day, (State v. Ricketts, 74 N.C. 187, 193)” 25.2. The concept of limitation not coming to an end on a day when the Court is closed, or is deemed to be closed, is precisely contained in Section 4 of the Limitation Act, 1963 that reads as under: – “4. Expiry of prescribed period when court is closed. – Where the prescribed period for any suit, appeal or application expires on 11 5th Ed., Vol. 2, p. 1505 PRAKASH CORPORATES v. DEE VEE PROJECTS LIMITED [DINESH MAHESHWARI, J.] a day when the court is closed, the suit, appeal or application may be instituted, preferred or made on the day when the court reopens. Explanation.- A court shall be deemed to be closed on any day within the meaning of this section if during any part of its normal working hours it remains closed on that day.” (emphasis supplied) 25.2.1. It is thus beyond cavil that if the prescribed period for any suit/appeal/application expires on day when the Court is considered ‘closed’, such proceedings may be instituted on the re-opening day. Significantly, the Explanation to Section 4 of the Limitation Act, 1963 makes it clear that a day when the Court may not as such be closed in physical sense, it would be ‘deemed’ to be closed, if during any part of its normal working hours, it remains closed on that day for any particular proceedings or work. 25.3. As noticed from the relevant parts of the order dated 05.04.2021 (vide paragraph 15 hereinabove) that at the relevant time, limited number of Courts were to function on rotational basis in Raipur and that too, with curtailed working hours from 11:00 a.m. to 2:00 p.m.; and they were to function during full working hours only for bail and remand matters. Having regard to the situation prevalent at the relevant time and the contents as also spirit of the administrative order issued by the jurisdictional High Court, there is nothing to doubt that w.e.f. 06.04.2021, the Court in question could not have been considered functioning normally; and that period of operation of the said administrative order dated 05.04.2021 could have only been considered dies non juridicus for the purpose of the prescribed period for doing anything in the proceedings in that Court. It has not been pointed out if, as on 06.05.2021, the said order dated 05.04.2021 had been withdrawn and the situation had returned to such normalcy that the appellant should have attended the Trial Court and should have filed the written statement. Quite contrary to any such proposition, the submission on behalf of the appellant, even on 22.06.2021, had been about the ailments of the partners of the appellant firm as also their lawyer and their families, where the lawyer lost his mother due to health complications. Any proposition, which suggests that during such non-regular-business days of the Trial Court, and rather bleak days for the humanity, the written statement ought to have been filed, could only be disapproved as being impractical and rather preposterous. Another error of procedure by the Trial Court

26. Apart from the above, yet another significant feature is that on the very first day of appearance, i.e., on 18.01.2021, 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 the NCLT. The respondent had earlier moved an application seeking directions of attachment before judgment in terms of Order XXXVIII CPC. Both the applications as moved by the appellant as also by the respondent remained pending and, on 15.03.2021, the Trial Court adjourned the matter to 15.04.2021 for arguments on both these applications. On 15.04.2021, no business could be transacted and the matter was adjourned to 22.06.2021, again for arguments on these applications. Even when the matter was taken up on 22.06.2021 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 09.07.2021. 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 22.06.2021 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 10 CPC for consideration. 26.1. 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 V, Rule 1 of Order VIII as also Rule 10 of Order VIII, 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 PRAKASH CORPORATES v. DEE VEE PROJECTS LIMITED [DINESH MAHESHWARI, J.] 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 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. Conclusion

27. For what has been discussed hereinabove, we are unable to approve the order dated 22.06.2021 as passed by the Trial Court and the order dated 09.07.2021 as passed by the High Court. In our view, the written statement already prepared and notarised by the defendant- appellant deserves to be taken on record and the Trial Court deserves to be directed to proceed with the matter in accordance with law thereafter; and for that matter, to deal with the pending applications without further delay.

28. Accordingly, this appeal is allowed; the impugned orders dated 22.06.2021 as passed by the Commercial Court (District Level), Nava Raipur, Chhattisgarh in Civil Suit No. 01-B of 2021 as also the order dated 09.07.2021 as passed by the High Court of Chhattisgarh in WP No. 312 of 2021 are set aside; the written statement notarised by the defendant-appellant on 07.07.2021 is ordered to be taken on record. After taking the written statement on record, the Trial Court shall proceed with the suit in accordance with law; and for that matter, shall deal with the pending applications before taking any other steps in the suit. Devika Gujral Appeal allowed. (Assisted by : Shevali Monga, LCRA)