Gujarat High Court
Hareshkumar Valjibhai Golani vs State Of Gujarat on 28 April, 2025
Author: Sunita Agarwal
Bench: Sunita Agarwal
NEUTRAL CITATION
C/SCA/4656/2025 ORDER DATED: 28/04/2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 4656 of 2025
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HARESHKUMAR VALJIBHAI GOLANI
Versus
STATE OF GUJARAT & ANR.
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Appearance:
MR MANISH J PATEL(2131) for the Petitioner(s) No. 1
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CORAM:HONOURABLE THE CHIEF JUSTICE MRS. JUSTICE
SUNITA AGARWAL
and
HONOURABLE MR. JUSTICE PRANAV TRIVEDI
Date : 28/04/2025
ORAL ORDER
(PER : HONOURABLE MR. JUSTICE PRANAV TRIVEDI)
1. The present petition is preferred challenging the order dated 18.1.2025 passed by the Senior Civil Judge, Morbi (hereinafter referred to as 'the learned Court' for short) in an application below Exh-10 in Commercial Civil Suit No.88 of 2024.
2. The factual matrix leading to filing of the present writ petition is that the petitioner is having a proprietorship concern in the name of 'Matadar Paper Tube' and, inter alia, is in business of Textiles. The petitioner purchased goods worth Rs.98,81,842/- from 'GJ-36 Flexoprinting' (hereinafter referred to as 'the respondent' for short) for which invoices Page 1 of 8 Uploaded by SAJ GEORGE(HC01069) on Thu May 15 2025 Downloaded on : Sat May 17 05:09:59 IST 2025 NEUTRAL CITATION C/SCA/4656/2025 ORDER DATED: 28/04/2025 undefined and challans were also issued. Subsequent to the business transaction, dispute arose between the parties. In view of the same, respondent filed a Civil Suit before the learned Court which came to be numbered as Commercial Suit No. 88 of 2024 for seeking recovery for an amount of Rs.75,81,842/-. On filing of the suit, summons came to be issued to the defendant i.e. present petitioner on 20.08.2024. The returnable date on the summons was 23.9.2024.
3. Pursuant to the service of summons, the petitioner appeared before the learned Court through his advocate and requested for time. It is the case of the petitioner that initially he wanted to settle the dispute which resulted in delay in filing the written statement. However, since 120 days had passed subsequent to service of summons, there was delay in filing of written statement. In such situation, the petitioner preferred an application at Exh-10 seeking condonation of delay and also prayed to the learned Court to take on record his written statement. In the application it was contended by the petitioner that subsequent to the issuance of summons, there was change in the advocate, which has resulted into delay and, therefore, delay is required to be condoned. The Page 2 of 8 Uploaded by SAJ GEORGE(HC01069) on Thu May 15 2025 Downloaded on : Sat May 17 05:09:59 IST 2025 NEUTRAL CITATION C/SCA/4656/2025 ORDER DATED: 28/04/2025 undefined learned Court vide order dated 18.1.2025 below Exh-10, rejected the application for condonation of delay as well as denied to take on record the written statement on the ground that there is no provision in the Commercial Courts Act to condone the delay and take the written statement on record after 120 days. Being aggrieved by the impugned order dated 18.1.2025 passed by the learned Court below Exh-10, present writ petition is preferred.
4. We have heard Mr. Manish Patel, learned advocate for the petitioner.
5. Mr. Manish Patel, learned advocate for the petitioner has submitted that the learned Court has failed to consider and appreciate the law that the legislature has made provision for filing of written statement mandatory. The procedural provision though are mandatory in nature, they should be allowed to bend to suit a peculiar situation. The impugned order violates the petitioner's fundamental right under Article 14 of the Constitution of India, which guarantees equality before the law. The rejection of condonation of delay application without considering the genuine reason for delay is arbitrary and unjust. It was further submitted that the Page 3 of 8 Uploaded by SAJ GEORGE(HC01069) on Thu May 15 2025 Downloaded on : Sat May 17 05:09:59 IST 2025 NEUTRAL CITATION C/SCA/4656/2025 ORDER DATED: 28/04/2025 undefined learned Court erred in interpreting the provisions of Order VIII Rule 1 of the Code of Civil Procedure. The provision is directory and not mandatory, and the Court has the discretion to allow the written statement to be taken on record even after the prescribed period subject to a valid reason for delay is provided. It was further submitted that the impugned order causes great injustice to the petitioner. The petitioner has substantial defence to present, and the rejection of condonation application prevents the petitioner from defending the suit on merits and thereby adversely affecting the petitioner's right. On the basis of such submissions, Mr. Manish Patel, has submitted to consider the prayers made in the present writ petition.
6. After hearing learned advocate for the petitioner and perusing the material on record, the fact is not in dispute that the written statement to the suit was not filed by the petitioner within a span of 120 days from the date of receiving summons. The petitioner was aware about the suit which was instituted against the petitioner. Subsequent to the receipt of the notice, the petitioner appeared through an advocate before the learned Court. Thereafter, there was change in Page 4 of 8 Uploaded by SAJ GEORGE(HC01069) on Thu May 15 2025 Downloaded on : Sat May 17 05:09:59 IST 2025 NEUTRAL CITATION C/SCA/4656/2025 ORDER DATED: 28/04/2025 undefined advocate and second advocate appeared and prayed for time. There is nothing on record to show that the petitioner had made an effort to file written statement within a mandatory period of 30 days plus extended period of 90 days, making a period of total 120 days. Therefore, to appreciate the arguments made by Mr. Patel, the provisions of Civil Procedure Code are necessary to be perused.
7. The Commercial Courts, Commercial Division and Commercial Appellate Division of High Courts Act, 2015 came into force on 23.10.2015 bringing in their wake certain amendments to the Code of Civil Procedure. In Order V, Rule 1, sub-rule (1), for the second proviso, the following proviso was substituted:
"Provided further that where the defendant fails to file the written statement within the said period of thirty days, he shall be allowed to file the written statement on such other days, as may be specified by the Court, for reasons to be recorded in writing and on payment of such costs as the court deems fit, but which shall not be later than one hundred twenty days from the date of service of summons and on expiry of one hundred and twenty days from the date of service of summons, the defendant shall forfeit the right to file the written Page 5 of 8 Uploaded by SAJ GEORGE(HC01069) on Thu May 15 2025 Downloaded on : Sat May 17 05:09:59 IST 2025 NEUTRAL CITATION C/SCA/4656/2025 ORDER DATED: 28/04/2025 undefined statement and the court shall not allow the written statement to be taken on record."
8. Equally, in Order VIII Rule 1, a new proviso was substituted as follows:
"Provided that where the defendant fails to file the written statement within the said period of thirty days, he shall be allowed to file the written statement on such other day, as may be specified by the court, for reasons to be recorded in writing and on payment of such costs as the Court deems fit, but which shall not be later than one hundred and twenty days from the date of service of summons and on expiry of one hundred and twenty 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."
9. This was re-emphasized by re-inserting yet another proviso in Order VIII Rule 10 CPC, which reads as under:-
"Procedure when party fails to present written statement called for by Court.- Where any party from whom a written statement is required under Rule 1 or Rule 9 fails to present the same within the time permitted or fixed by the Court, as the case may be, the Court shall pronounce judgment against him, or make Page 6 of 8 Uploaded by SAJ GEORGE(HC01069) on Thu May 15 2025 Downloaded on : Sat May 17 05:09:59 IST 2025 NEUTRAL CITATION C/SCA/4656/2025 ORDER DATED: 28/04/2025 undefined such order in relation to the suit as it thinks fit and on pronouncement of such judgment a decree shall be drawn up.
Provided further that no Court shall make an order to extend the time provided under Rule 1 of this Order for filing of the written statement."
10. 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.
11. Therefore, the learned Court cannot allow the written statement to be taken on record from the fact that earlier Page 7 of 8 Uploaded by SAJ GEORGE(HC01069) on Thu May 15 2025 Downloaded on : Sat May 17 05:09:59 IST 2025 NEUTRAL CITATION C/SCA/4656/2025 ORDER DATED: 28/04/2025 undefined Order 8 Rule 1 on filing of the written statement has now been set at naught. The clear, definite and mandatory provision of Order VIII read with Rule 1 and 10 of the Code of Civil Procedure cannot be circumvented by taking any other recourse. This has been clearly laid down by the Hon'ble Apex Court in case of M/s. SCG Contracts India Pvt. Ltd. v. K.S. Chamankar Infrastructure Pvt. Ltd. and Ors, reported in 2019 (12) SCC 210. Therefore, the request made by Mr. Manish Patel that written statement of the petitioner should be accepted even after period of 120 days, cannot be accepted.
12. In view of the same, the petition being devoid of merit is hereby dismissed. No order as to costs.
(SUNITA AGARWAL, CJ ) (PRANAV TRIVEDI,J) SAJ GEORGE Page 8 of 8 Uploaded by SAJ GEORGE(HC01069) on Thu May 15 2025 Downloaded on : Sat May 17 05:09:59 IST 2025