In short. The first hearing of a commercial suit is usually over in minutes. When your plaint is first listed, the judge checks it's in order (a mediation report or a real case for urgent relief, the value, jurisdiction, the documents). Any urgent application gets decided, and summons go out. The defendant turns up a few weeks later, once served. What that appearance mostly does is start the clock on the written statement. Neither date decides anything. But a slip on either one can cost you months. Prepare for both.
Is this your situation?
- You filed a commercial suit last month. Your advocate has just told you it's listed for the first time next Tuesday.
- A summons landed at your office with a date printed on it, and nobody in the company knows what's supposed to happen that day.
- There's an injunction application with your plaint. Your old distributor is selling stock under your brand right now, and you want to know if the court can stop it on day one.
- You run the business and you're wondering whether you actually have to sit in court on the first date.
- The other side didn't show up on the first date. You'd like to know what that means for you.
- Your contract had an arbitration clause, but they've dragged you to a commercial court anyway.
- You want a rough idea of how long it'll be from this first date to the point where evidence starts.
Short answer: there are really two "first hearings"
When clients ask about the first hearing, they usually mean one of two dates. The first is the day your plaint comes up before the judge for the first time after filing. Only the plaintiff is there, unless the defendant has filed a caveat, and the court reads the plaint and decides whether to issue summons. The second is the first date the defendant appears after being served, which can be weeks later depending on how quickly service gets done. That's when both sides stand before the court together for the first time.
No evidence is taken on either date. Nobody decides who's right. The first listing is about whether the suit has been filed properly and whether an urgent order is needed. The defendant's first appearance deals with service, time for the written statement and any early objection. The real fight starts much later, at the case management hearing under Order XV-A of the Code of Civil Procedure, 1908 (CPC), once pleadings and admission of documents are done.
Still, don't treat these early dates lightly. A plaint that fails scrutiny on day one can be returned or rejected. A defendant who says the wrong thing at its first appearance can lose an objection for good, and a plaintiff who's late with the process fee can watch the suit get dismissed before it's even begun.
What does the judge actually do at the first hearing?
At the first listing, the judge reads the plaint and checks the basics. Did you go through pre-institution mediation under Section 12A of the Commercial Courts Act, 2015? Is the non-starter or failure report on file? If not, does the suit genuinely need urgent interim relief? Since Patil Automation v. Rakheja Engineers (2022), a commercial suit filed without mediation, and without a real case for urgent relief, is liable to be rejected. And Yamini Manohar v. T.K.D. Keerthi (2023) lets the court look at whether the urgency is genuine or just a way round mediation.
The judge also looks at the value and territorial jurisdiction pleaded in the plaint. Then there's the statement of truth, the list of documents and the affidavit of documents that Order XI requires, and the court fee. Any applications filed with the plaint get taken up too. That might be exemption from filing certain copies, leave to file more documents later, an interim injunction, attachment before judgment, or something similar.
If it's all in order, the court issues summons and tells you to file the process fee and copies. It fixes a returnable date. In the Delhi High Court, the order usually also sends the matter to a Joint Registrar to complete pleadings and admission or denial of documents. The judge picks it up again after that. In a district Commercial Court, at Saket or Tis Hazari say, the judge keeps the matter and gives the next date before himself or herself.
The rules behind these early dates
Order V Rule 1, CPC (as amended for commercial suits)
Summons go to the defendant to appear and answer the claim, and the written statement is due within 30 days of service. In commercial suits the court can extend that, for recorded reasons and on costs, but never beyond 120 days from service. After that the right to file is gone (SCG Contracts v. K.S. Chamankar, 2019).
Section 148A, CPC
Someone who expects to be sued can lodge a caveat, and the plaintiff then has to serve notice of any application on the caveator, who gets to be heard before an interim order is passed. A caveat stays alive for 90 days from the date it's lodged.
Order XXXIX Rules 1 to 3, CPC
Temporary injunctions. If the court grants one without notice, Rule 3 says the plaintiff must send the application, plaint and documents to the defendant straight away. The plaintiff also has to file an affidavit saying it's been done, on the day of the order or the day after. Check the exact wording of Rule 3 for your case.
Order IX, CPC
What happens when someone doesn't appear. The suit can be dismissed if the plaintiff doesn't pay for service (Rule 2) or doesn't turn up (Rule 8). It can be restored on sufficient cause (Rule 9). If a served defendant stays away, the court can proceed ex parte (Rule 6), and an ex parte decree can be set aside under Rule 13.
Section 8, Arbitration and Conciliation Act, 1996
If there's an arbitration agreement, the defendant can ask the court to send the parties to arbitration. But it has to apply no later than the date of its first statement on the substance of the dispute. Miss that and it's usually too late.
Commercial suit summons: what goes out, and how it reaches the defendant
A summons is the court's direction to the defendant to appear and file a written statement. In a commercial suit it travels with a copy of the plaint and every document filed with it, so the defendant gets everything it needs to reply. The 30 days, and the outer limit of 120, run from the date of service. Not from the hearing date.
Getting the summons served is your job. Not the court's. You file the process fee and enough copies or addresses within the time the court gives, often about a week. Service is usually ordered by all modes, which means the court's process server, registered or speed post, approved courier and email, and often the mobile number or email the defendant used while dealing with you. For a company, Order XXIX Rule 2 lets you serve the registered office, or a director, secretary or principal officer.
Missing the process fee deadline is one of the very few ways a commercial suit dies in its first month. Order IX Rule 2 allows dismissal where summons weren't served because the plaintiff didn't pay. You can get it restored. You'll waste a date doing it. If you're on the receiving end, our guide on what to do when a commercial suit summons arrives covers your first moves.
Can you get urgent relief on the first day?
Yes, if the facts justify it. You may have filed with an application for a temporary injunction under Order XXXIX, or for attachment before judgment under Order XXXVIII Rule 5. Then you can ask for an ex parte ad interim order on the first day. That's a short-term order passed before the other side is heard. Courts give these where waiting would itself defeat the point. Not otherwise. Think of a former distributor about to dump stock under your brand, or a buyer about to shift the one asset it has, or a licensee about to launch infringing products. Our page on urgent injunctions to stop harm to your business sets out the tests.
More often, the court issues notice on the application and lists it with the suit, and if the defendant is already there through a caveat, the court sometimes records an assurance from its counsel instead. If you do get an ex parte order, the Order XXXIX Rule 3 duty kicks in at once. Send the papers to the defendant. Plaintiffs who forget the compliance affidavit are inviting an application to vacate the order, and they usually get one.
There's a link with mediation here that people miss. If you skipped Section 12A mediation on the ground of urgency, the first hearing is where that claim gets tested. Ask for urgent relief and then not press it, or press it half-heartedly, and the court may decide the urgency was never real. Our guide on getting an injunction without going to mediation first explains how judges look at it.
Before a plaint with an urgent application is listed, Advocate B.K. Singh has the team check two things. Both are easy to miss. First, has the defendant lodged a caveat in that court? If so, it has to be served before the hearing. Second, does the plaint have its own paragraph explaining why even a few weeks' wait would cause harm that money can't put right? The first stops the hearing being adjourned on a technicality. The second is what the judge reads first.
Is the "first date of hearing" the same as the first listing?
Not always. And for a few rules, the difference matters. In everyday court talk, the first date is just the first day the case shows up on the cause list. In procedural law, the first date of hearing is generally taken to be the day the court first applies its mind to the case, usually after the defendant has appeared and the court gets going with the matter. Some time limits and rights hang on that stage rather than on the first listing.
In a commercial suit, different dates drive the timetable. The written statement clock starts from service of summons. Inspection of documents should be done within 30 days of the written statement under Order XI Rule 3, and admission or denial of documents follows within 15 days after that, under Rule 4. The first case management hearing is to be held within four weeks of the affidavits of admission or denial. If you're counting days, count from service and from filings. Not the summons date.
For the defendant, one "first" decides a lot. It's the first statement on the substance of the dispute. If there's an arbitration clause, the Section 8 application under the Arbitration Act has to come before that statement. File a written statement on merits without it, or argue the injunction on merits in detail first, and you may be treated as having given up arbitration. That's hard to undo.
Who needs to be there, and what should you bring?
At the first listing, your advocate attends. The business owner usually doesn't need to come. Keep your phone on during the hearing, though. The court may ask a factual question, like whether the goods are still with the defendant or whether a payment came in after filing. If an ex parte injunction is on the cards, someone who knows the facts should be free that day.
At the defendant's first appearance, its advocate files a vakalatnama, signed by the proprietor, a partner or an authorised signatory, and for a company there should be a board resolution behind it. Your advocate, as plaintiff, needs proof of service on every defendant. Postal tracking, courier delivery reports, the process server's report, email delivery records. If service isn't complete, the court will order fresh service. That's a date gone.
Originals don't usually get looked at on these dates. They come up at inspection and at admission or denial of documents. Keep them together, and keep them safe, from the day you file, because Order XI also requires originals to be produced when called for. A missing original can hurt a claim that's otherwise strong. We've seen it.
The defendant's first appearance: what usually happens
The defendant's counsel appears, files a vakalatnama, and then either confirms they got the summons and papers or says something's missing. If copies were incomplete, the court tells the plaintiff to supply them, and the defendant will argue that time only runs from complete service. You avoid all that by serving the full paper book, every annexure included, the first time.
The court then notes where things stand on the written statement. It's due within 30 days of service. Defendants often ask for more time on day one. The court may record that time runs under the rules, and that any extension up to 120 days will be on costs and for reasons. Our guide on the 120-day written statement deadline explains how strictly courts apply it.
Early objections often get flagged on this date. The usual ones are that it isn't a commercial dispute at all, or the value is below Rs 3 lakh. Or the court lacks territorial jurisdiction, or mediation was skipped without any urgency, or the claim is time-barred. These normally come by way of an application under Order VII Rule 11 for rejection of the plaint, or Order VII Rule 10 for its return. Sometimes they're just taken in the written statement. If you're defending, have a look at our page on defence strategy in a commercial suit.
In defence files, Advocate B.K. Singh's first instruction on the day of appearance is to say as little as possible on merits until three questions are answered. Is there an arbitration clause? Does the court have both territorial and pecuniary jurisdiction? Was the plaint filed after Section 12A mediation? Any one of these can end the suit or move it elsewhere. And each can be lost by getting into the merits too early.
What the first hearing looks like in different NCR courts
| Court | Who hears the first listing | What usually comes next | Practical point |
|---|---|---|---|
| Delhi High Court, Commercial Division (suits above Rs 2 crore) | A Single Judge of the Commercial Division | Summons go out. Pleadings and admission or denial of documents get done before a Joint Registrar, then the matter goes back to the judge for case management | E-filing is the norm. Check the cause list the evening before, and the advance list |
| Delhi district Commercial Courts (up to Rs 2 crore; check the current limit) | District Judge (Commercial Court) of that district | Summons go out. The same judge fixes dates for written statement, admission or denial and case management | Several district complexes have commercial courts. File in the one with territorial jurisdiction |
| Ghaziabad and Gautam Buddh Nagar (UP) | The court designated as Commercial Court for the district | Summons go out, with dates for the written statement and document stages | Ask how that court handles email service and hybrid hearings |
| Gurugram and Faridabad (Haryana) | The court designated as Commercial Court for the district | Summons go out, with dates for pleadings and case management | Process fee and service follow the district court's own procedure. Ask at the registry |
Talking settlement at the first hearing
Judges often ask at the first appearance if you're both willing to talk, and if you are, the court can send the matter to court-annexed mediation. That could be the Delhi High Court Mediation and Conciliation Centre (Samadhan), or the mediation centre in the district court complex. This is separate from Section 12A pre-institution mediation. A suit that went through a failed Section 12A round can still settle at this stage. Sometimes it's because the defendant is now looking at the plaint and documents laid out in front of it, and the picture's less comfortable than it thought.
A settlement reached through a court-referred process can be recorded, with a decree passed in its terms. You may also be able to claim back court fee under Section 16 of the Court Fees Act where the matter settles through a mode referred to in Section 89 of the CPC. Check with the registry of that court first. Our guide on settling a commercial suit without giving up your rights explains what a safe settlement looks like.
What if somebody doesn't turn up?
If the plaintiff stays away and the defendant comes, the court can dismiss the suit for default under Order IX Rule 8. You can apply to restore it under Rule 9 by showing sufficient cause. Move fast and that usually works, though it costs a date and sometimes costs as well. If neither side turns up, the court can dismiss under Rule 3. Same remedy.
If the defendant was properly served and doesn't come, the court can proceed ex parte under Order IX Rule 6. In a commercial suit, once time for the written statement has run out, the plaintiff can then ask for judgment on the pleadings and documents, and the court can pass a decree. A defendant who later shows it was never served, or had sufficient cause, can apply under Order IX Rule 13 to set the decree aside. That side is covered on our page on setting aside an ex parte decree.
A defendant who walks in late, after the court has started proceeding ex parte, can join from that point under Order IX Rule 7 if it shows good cause. It can't reopen the written statement deadline, though. Not once 120 days from service have gone by.
After the first hearing: getting to case management
Once the defendant's been served and has appeared, the suit moves through a set sequence. Each step has a deadline. The written statement comes in within 30 days, or 120 at the very most, along with the defendant's documents and its own statement of truth. The plaintiff may then file a replication, which is a reply to new facts raised in the written statement, within whatever time that court's rules allow. After that, both sides finish inspection of documents and file affidavits admitting or denying each other's documents.
Within four weeks of the last admission or denial affidavit, the court should hold the first case management hearing under Order XV-A. It frames issues, settles the witness list and sets a timetable for evidence and arguments. Our guide on the case management hearing under Order XV-A explains what to prepare. If the defence looks empty, the plaintiff can apply for summary judgment under Order XIIIA, any time after summons are served and before issues are framed.
How long does it take? In NCR courts, the gap from first listing to first case management hearing is often four to nine months. It depends mostly on how quickly service gets done and whether preliminary objections are argued.
Getting ready for the first hearing, step by step
If you're the plaintiff, most of the work happens before the plaint is ever listed.
Check the plaint against the commercial requirements
Make sure you have the Section 12A report or a clear urgency paragraph, plus the statement of truth, the affidavit of documents, the valuation and court fee, and the jurisdiction paragraph. Gaps here are the first thing the judge spots.
Look for a caveat
If the defendant might have lodged one in that court, check the caveat register and serve the caveator with the plaint and applications before the listing.
Put the service set together
Gather every address, email and phone number you know for each defendant, including a company's registered office, and keep full copies of the paper book ready to go.
Watch the listing
Check the cause list and read the order on the first date. Note the deadline for process fee and copies. Meet it that same week.
Comply with any ex parte order
If you get an injunction or attachment, send the papers to the defendant immediately. File the Order XXXIX Rule 3 compliance affidavit. Don't let it slide.
Collect proof of service
Pull together tracking reports, courier receipts, process server reports and email delivery records before the returnable date.
Plan for the defendant's appearance
Be ready for requests for time, complaints about missing copies, objections on jurisdiction or mediation, and possibly a Section 8 arbitration application.
Filing in Delhi? Our guide on e-filing a commercial suit in Delhi covers the portal steps that come before the first listing.
Time and cost around the first hearing
| Stage | How long it usually takes | Costs to plan for |
|---|---|---|
| Registry scrutiny and clearing objections | A few days to 3 weeks | The effort of re-filing, and any deficit court fee |
| First listing before the judge | Usually within days of clearing objections | Appearance, and arguing urgent applications if you've filed any |
| Process fee and service | Process fee in about a week. Service in 2 to 8 weeks | Process fee, postage, courier. Small amounts |
| Defendant's first appearance | Often 4 to 10 weeks after first listing | Appearance. Possibly costs if one side asks for an adjournment |
| Written statement | 30 days from service, stretchable to 120 days at most | Costs put on a defendant who takes extra time |
| Inspection and admission or denial | About 45 days after the written statement under Order XI | Inspection and filing the affidavits |
| First case management hearing | Within 4 weeks of the last admission or denial affidavit | Preparing draft issues and witness lists |
Have these ready before the first hearing
- The Section 12A non-starter or failure report, or a clear written reason why you need urgent relief
- The signed plaint with its statement of truth and affidavit of documents
- Court fee receipt, and the working that shows how you valued the suit
- Interim applications and their supporting affidavits, if you're asking for urgent relief
- The result of a caveat search in that court
- Every address, email and phone number you have for the defendant, plus the company's registered office from MCA records
- Full sets of the plaint and documents for serving each defendant
- Originals of the main documents, kept together for inspection later
- The vakalatnama and, for a company, the board resolution or the signatory's authority
How the first hearing differs depending on who you are and what the suit is
- Plaintiff suppliers with a plain debt. The first listing is mostly about getting summons out. Your real work is quick service and holding the defendant to the written statement deadline.
- Defendants. Your first appearance is where you keep your objections alive. Make up your mind on arbitration, jurisdiction and maintainability before anyone says a word on merits.
- Summary suits. Under Order XXXVII, the defendant has to enter appearance within 10 days of service. The plaintiff then serves a summons for judgment. It's a different track, explained in our guide on the summons for judgment in a summary suit.
- IP and brand owners. For you the first listing is often the whole show. Ex parte injunctions in trademark and copyright matters are usually asked for then.
- Companies. Authority papers get checked early. A board resolution that's unsigned or out of date can hold up the vakalatnama and draw an objection.
- Proprietors and small businesses. You usually don't have to come to the first listing yourself. Stay reachable, and have your originals ready.
An invented example: a Karol Bagh distributor's suit at Tis Hazari
This is made up, to show how the two dates play out. A kitchen appliance distributor in Karol Bagh is owed Rs 27 lakh by a retail chain whose head office is in Central Delhi. Section 12A mediation ends in a non-starter report because the chain never shows up, so the distributor files a recovery suit before the District Judge (Commercial Court) at Tis Hazari.
At the first listing, the judge notes the non-starter report and finds the value and jurisdiction in order. Summons are issued by all modes, returnable in five weeks, with process fee to be filed within a week. The distributor's advocate files it in three days. She also adds the chain's registered office from MCA records and the email address of its accounts head. Service is done within three weeks.
On the returnable date, the chain's counsel appears and asks for time for the written statement. The accounts are being reconciled, he says. The court records the date of service and notes that the written statement is due within 30 days of it. Counsel then mentions that the purchase terms have an arbitration clause. The chain hasn't filed anything on merits yet, so it can still move a Section 8 application. The distributor's advocate now checks two things. Does the clause actually cover this dispute? And did the distributor ever accept those purchase terms? None of this decides the case. Every step on these two dates, though, shapes how fast it moves.
Mistakes that waste time at the first hearing
- Process fee filed late. It's the simplest step there is. People still forget it. It can get the suit dismissed under Order IX Rule 2.
- Service sets with pages missing. Leave out an annexure and the defendant will say time hasn't started running.
- Claiming urgency and then going soft on it. If you skipped mediation because it was urgent, a half-hearted injunction application undercuts your own plaint.
- No Order XXXIX Rule 3 compliance. Get an ex parte order but don't serve it at once with an affidavit, and expect an application to vacate.
- A defendant arguing merits first. You can lose the right to arbitration, or weaken a jurisdiction objection, by getting into the substance too soon.
- Nobody's watching the cause list. The matter comes up earlier than expected, or before a different court, and no one's there.
What to do this week
If you're the plaintiff, get a copy of the first order and put the process fee and copies deadline in your diary. Send your advocate every address, email and phone number you have for the defendant, and keep your original invoices, contracts and correspondence in one file. If an urgent order was passed, make sure the compliance affidavit has gone in. Check, don't assume.
If you're the defendant, find the date of service on the summons and work out your 30-day and 120-day dates from it. Dig out the contract. Check it for an arbitration clause and a jurisdiction clause before anyone speaks for you on merits. Then plan the written statement with your advocate, using our guide on defending a commercial suit.
If you'd like your summons, plaint or first order looked at so you know exactly what to do before the next date, send them to Advocate B.K. Singh's team through the contact page.
Frequently asked questions
Do I have to be in court myself for the first hearing of my commercial suit?
Usually not. Your advocate appears for you. Keep your phone on in case the court has a factual question. You'll need to attend in person later, for evidence, or if the court specifically asks for you.
How soon after filing does a commercial suit first get listed?
Once the registry's objections are cleared, fresh commercial suits usually come up within a few days to a couple of weeks. Clearing the objections can take a few days or up to about three weeks. It depends on the defects.
What's a returnable date on a summons?
It's the date by which the summons should be served and on which the court expects the defendant to appear. If service isn't complete by then, the court orders fresh service and gives a new date. It happens a lot.
Can the court decide the case on the first day?
Generally not. A commercial suit isn't decided at the first listing. The court can pass urgent interim orders, though, and if the plaint is plainly defective it can reject or return it. Final decisions come after pleadings. Sometimes earlier, through summary judgment under Order XIIIA.
Does the written statement time run from the first hearing?
It doesn't. It runs from service of summons. Say the defendant receives the summons on 1 March and first appears on 10 April. The 30 days and the 120-day outer limit are counted from 1 March.
What if the defendant can't be traced for service?
If ordinary service fails, the court can order service at the last known address, by email or other electronic means, or by newspaper publication under Order V Rule 20. Try MCA records, GST details and bank or courier papers to trace an address first.
Can a defendant file a counter-claim at its first appearance?
A counter-claim goes in with the written statement, within the same time limit, and it's treated like a plaint needing its own court fee. It isn't usually filed at the first appearance itself.
If Section 12A mediation failed, will the court send us to mediation again?
It can suggest court-annexed mediation if both sides are willing, but it's not compulsory at that stage, and plenty of suits go straight to pleadings. Still, a willing defendant sometimes settles once it's seen the plaint and documents.
Advocate B.K. Singh
Founder of B.K. Singh & Associates. MCA, LL.B., LL.M. More than twenty years in practice before the Supreme Court, the Delhi High Court, district and commercial courts in Delhi NCR, and tribunals.
This guide explains the law in general terms and is not legal advice. For advice on your own papers, contact the team.