Introduction
The judgement delivered by the High Court of Himachal Pradesh in Novenco Building & Industry A/S v. Xero Energy Engineering Solutions Private Limited & Another is an important reaffirmation of the strict procedural framework governing commercial litigation in India. The decision highlights the legislative intent behind the Commercial Courts Act, 2015, which seeks to ensure speedy adjudication of commercial disputes by imposing rigid timelines for filing pleadings.
The ruling is particularly significant for businesses, intellectual property owners, commercial litigants, and legal practitioners because it reiterates that courts cannot dilute the mandatory timelines prescribed for filing written statements in commercial suits. The decision also addresses an increasingly litigated question, whether a reply filed to an interim injunction application can subsequently be treated as a written statement when the statutory period for filing the written statement has expired.
Factual and Procedural Background
The plaintiff instituted a commercial intellectual property suit in June 2024 alleging infringement of its intellectual property rights. Summonses were issued and the defendants were served in July 2024.
Instead of filing a written statement, the defendants challenged the maintainability of the suit by filing an application under Order VII Rule 11 dated 28.08.2024 of the Code of Civil Procedure. The High Court accepted the application and rejected the plaint on the ground of non-compliance with Section 12A of the Commercial Courts Act, which relates to mandatory pre-institution mediation.
The plaintiff challenged the order before the Division Bench of the High Court, but the appeal was dismissed. Thereafter, the plaintiff approached the Supreme Court.
By judgement dated 27 October 2025, the Supreme Court set aside both the order of the single judge and the division bench and restored the commercial suit to the file of the High Court for adjudication on merits. The Supreme Court observed that in cases involving continuing infringement of intellectual property rights, urgency must be assessed in the context of continuing injury and public interest and that mere delay in instituting a suit does not negate urgency.
Following restoration of the suit, the defendants filed an application seeking condonation of delay in filing their written statement along with the written statement itself. The plaintiff simultaneously sought closure of the defendants’ right to file the written statement on the ground that the statutory period of 120 days had already expired.
The controversy, therefore, centred on whether the written statement could still be taken on record and whether any alternative procedural device could save the defendants from the consequences of delay.
Chronology of Key Events
| Date | Event | Description |
|---|---|---|
| June 2024 | Institution of Suit | The plaintiff instituted a commercial intellectual property suit alleging infringement of its intellectual property rights. |
| July 2024 (service referenced as 26.06.2024) | Service of Summons | Summonses were issued and the defendants were served. |
| 28.08.2024 | Filing of Order VII Rule 11 Application | The defendants challenged the maintainability of the suit by filing an application under Order VII Rule 11 dated 28.08.2024 of the Code of Civil Procedure. |
| After 28.08.2024 | Rejection of Plaint by Single Judge | The High Court accepted the application and rejected the plaint on the ground of non-compliance with Section 12A of the Commercial Courts Act. |
| After Single Judge Order | Dismissal of Appeal by Division Bench | The plaintiff challenged the order before the Division Bench of the High Court, but the appeal was dismissed. |
| 27 October 2025 | Supreme Court Restoration Order | The Supreme Court set aside both the order of the Single Judge and the Division Bench and restored the commercial suit to the file of the High Court for adjudication on merits. |
| 16 March 2026 | Filing of Written Statement with Condonation Application | Following restoration of the suit, the defendants filed an application seeking condonation of delay in filing their written statement along with the written statement itself. |
Dispute Before the Court
The principal issue before the Court was whether the defendants had forfeited their right to file a written statement under the Commercial Courts Act.
Defendants’ Arguments
- The defendants argued that because the plaint had initially been rejected and remained so until the Supreme Court restored the suit, the period during which the suit stood rejected should not be counted for determining the limitation for filing the written statement. They further contended that the delay was only 33 days and deserved condonation.
- As an alternative argument, the defendants submitted that the reply already filed by them to the plaintiff’s application for temporary injunction should be treated as their written statement because the reply substantially addressed the allegations contained in the plaint.
Plaintiff’s Arguments
- The plaintiff argued that even after excluding the period during which the plaint remained rejected, the aggregate period exceeded the statutory limit of 120 days.
- The plaintiff further contended that the Commercial Courts Act leaves no discretion with courts once the prescribed period expires and that a reply to an injunction application cannot be substituted for a written statement in commercial litigation.
Reasoning and Analysis of the Court
The Court first examined the chronology of events and calculated the relevant periods. It noted that approximately 58 days had elapsed between service of summons on 26.06.2024 and rejection of the plaint. After the Supreme Court restored the suit on 27 October 2025, the defendants filed their written statement only on 16 March 2026. Even after granting the defendants every possible benefit, the total period exceeded the statutory ceiling of 120 days.
The Court rejected the argument that limitation would recommence only after the High Court formally restored the suit. It observed that the defendants were represented before the Supreme Court and were fully aware of the restoration order. Even from the date on which the High Court directed restoration of the suit, the written statement was not filed within the permissible period.
A substantial part of the judgement focuses on the statutory scheme introduced by the Commercial Courts Act, 2015. The Court referred to the special amendments made to Order V Rule 1, Order VIII Rule 1, and Order VIII Rule 10 of the Code of Civil Procedure. These provisions require a defendant to file a written statement within 30 days, extendable up to a maximum of 120 days from the date of service of summons. Upon expiry of 120 days, the defendant forfeits the right to file the written statement, and the court is prohibited from taking it on record.
The Court placed significant reliance upon SCG Contracts (India) Private Limited v. K.S. Chamankar Infrastructure Private Limited & Others, (2019) 12 SCC 210, wherein the Supreme Court categorically held that courts possess no power to extend time beyond 120 days in commercial suits. The judgement was treated as binding authority conclusively settling the issue.
The Court then examined the defendants’ alternative plea that their reply to the interim injunction application should be treated as a written statement.
For this proposition, the defendants relied upon Kuldeep Umraosingh Ostwal & Another v. Chandrakant N. Patel & Others, 2010 (2) Mh LJ, and Methodist Episcopal Church, Nagpur & Others v. Methodist Church in India, Mumbai, 2009 (4) Mh LJ. These Bombay High Court decisions had recognised circumstances in ordinary civil suits where a detailed reply to a temporary injunction application could be adopted as a written statement, particularly when such reply had been filed within the permissible period and reflected an intention to contest the suit.
However, the Court distinguished those authorities on the ground that they were rendered in the context of ordinary civil litigation and before the strict regime introduced by the Commercial Courts Act became applicable.
The court instead found persuasive the reasoning of the Bombay High Court in Flipkart India Pvt. Ltd & Another v. Flipkart India Pvt. Ltd & Another, 2020 SCC OnLine Bom 664. In that case, the Bombay High Court held that once the statutory period expires in a commercial suit, a defendant cannot indirectly revive a forfeited right by seeking to convert a reply to an interim application into a written statement.
The Court agreed with this approach and held that permitting such a course would effectively nullify the mandatory legislative mandate. The right that accrues to the plaintiff upon expiry of the statutory period is substantive in nature and cannot be defeated through procedural devices.
The court emphasised that a written statement in a commercial suit must comply with the special procedural framework created by the Commercial Courts Act. Any interpretation permitting circumvention of the statutory embargo would undermine the objective of expeditious disposal of commercial disputes.
Key Legal Precedents Cited
- SCG Contracts (India) Private Limited v. K.S. Chamankar Infrastructure Private Limited & Others, (2019) 12 SCC 210 – Binding Supreme Court authority that courts have no power to extend time beyond 120 days in commercial suits.
- Kuldeep Umraosingh Ostwal & Another v. Chandrakant N. Patel & Others, 2010 (2) Mh LJ and Methodist Episcopal Church, Nagpur & Others v. Methodist Church in India, Mumbai, 2009 (4) Mh LJ – Bombay High Court decisions in ordinary civil suits (distinguished as pre-Commercial Courts Act regime).
- Flipkart India Pvt. Ltd. & Another v. Flipkart India Pvt. Ltd. & Another, 2020 SCC OnLine Bom 664 – Persuasive authority holding that a reply to an interim application cannot be converted into a written statement after expiry of the statutory period in commercial suits.
Final Decision of the Court
The Court concluded that the defendants had failed to file their written statement within the mandatory period prescribed by the Commercial Courts Act.
The application seeking condonation of delay in filing the written statement was dismissed. The Court further rejected the request to treat the reply filed to the interim injunction application as a written statement. The plaintiff’s application seeking closure of the defendants’ right to file a written statement was allowed. Consequently, the written statement filed by the defendants was ordered to be struck off the record, and both applications were disposed of.
Point of Law Settled
The judgement reaffirms that in commercial suits governed by the Commercial Courts Act, 2015, the outer limit of 120 days for filing a written statement is mandatory and non-extendable. Once the period expires, the defendant forfeits the right to file a written statement, and the court lacks jurisdiction to grant any further extension.
The decision further clarifies that a defendant cannot circumvent this statutory embargo by seeking to have a reply filed to an interim injunction application treated as a written statement after expiry of the prescribed period. Such an approach would defeat the legislative objective of ensuring speedy and efficient resolution of commercial disputes.
Case Details
| Field | Details |
|---|---|
| Title of the Case | Novenco Building & Industry Vs Xero Energy Engineering Solutions Private Limited & Another |
| Date of Judgment/Order | 24.06.2026 |
| Case Number | OMP No. 123 of 2026 & OMP No. 213 of 2026 in COMS No. 13 of 2024 |
| Name of Court | High Court of Himachal Pradesh |
| Name of the Honourable Judge | Justice Ajay Mohan Goel |
| Written By | Advocate Ajay Amitabh Suman, IP Adjutor [Patent and Trademark Attorney], High Court of Delhi |
Written By: Advocate Ajay Amitabh Suman, IP Adjutor [Patent and Trademark Attorney], High Court of Delhi
Disclaimer: Images used herein do not reflect actual images used in the judgement, and the same are for illustrative purposes only. Readers are advised not to treat this as a substitute for legal advice, as it may contain errors in perception, interpretation, and presentation.
