Gujarat High Court
Kothari Feb vs Rohini Enterprise on 19 January, 2023
Bench: A.J.Desai
C/SCA/409/2023 ORDER DATED: 19/01/2023
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 409 of 2023
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KOTHARI FEB
Versus
ROHINI ENTERPRISE
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Appearance:
MR JAY K PUROHIT(9147) for the Petitioner(s) No. 1
MR JAYDEEPSINH H RAJPUT(8185) for the Petitioner(s) No. 1
for the Respondent(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE A.J.DESAI
and
HONOURABLE MR. JUSTICE RAJENDRA M. SAREEN
Date : 19/01/2023
ORAL ORDER
(PER : HONOURABLE MR. JUSTICE A.J.DESAI)
[1.0] By way of the present petition under Articles 226 and 227
of the Constitution of India, the petitioner herein - original
defendant has challenged an order dated 29.11.2022 passed
below application Exh.10 in Commercial Civil Suit No.164 of 2022
by the learned Judge, Commercial Court, City Civil Court,
Ahmedabad (hereinafter referred to as "learned Judge") by
which the application Exh.10 filed under Section 5 of the
Limitation Act to condone the delay caused in filing the written
statement came to be rejected on the ground that the written
statement was filed subsequent to completion of limitation
period as provided for filing of written statement under proviso
to Rule 1 of Order VIII of the Code of Civil Procedure, 1908
(hereinafter referred to as "CPC").
[2.0] Short facts emerging from the record of the case are as
C/SCA/409/2023 ORDER DATED: 19/01/2023
follows:
[2.1] That, the present respondent - original plaintiff filed a suit
being Commercial Civil Suit No.164 of 2022 valued at
Rs.10,82,381.53 new paise under the provisions of the
Commercial Courts, Commercial Division and Commercial
Appellate Division of High Courts Act, 2015 (hereinafter referred
to as "Commercial Courts Act").
[2.2] The summons issued by the learned Judge came to be
served upon the original defendant on 27.06.2022. The petitioner
herein - original defendant filed its appearance through
Advocate on 01.09.2022. An application Exh.9 seeking
adjournment was submitted by the petitioner herein which was
granted and accordingly the suit was adjourned to 03.11.2022
but as none remained present on behalf of the petitioner herein,
the suit was adjourned to 29.11.2022.
[2.3] The petitioner herein - original defendant did not file the
written statement within the period prescribed under Order VIII
Rule 1 of the CPC. Having found that there was a delay in filing
the written statement, an application Exh.10 was filed by the
petitioner herein under Section 5 of the Limitation Act
requesting to condone the delay of 143 days caused in filing the
written statement and to take the written statement on record.
[2.4] The learned Judge by impugned order and considering the
provisions of the CPC and a decision dated 12.02.2019 of the
Hon'ble Apex Court rendered in the case of M/s. SCG Contracts
India Pvt. Ltd. vs. K.S. Chamankar Infrastructure Pvt. Ltd. &
C/SCA/409/2023 ORDER DATED: 19/01/2023
Ors. [Civil Appeal No.1638 of 2019] refused to condone the
delay.
Hence, present petition.
[3.0] Learned advocate Mr. Vimal Purohit appearing for the
petitioner herein - original defendant would submit that the
learned Judge could have condoned the delay by imposing
appropriate cost considering the fact that infact there is a delay
of only 23 days excluding the period which is provided under 2 nd
proviso to sub-Rule (1) of Rule 1 of Order V of the CPC.
[4.0] We have heard learned advocate Mr. Vimal Purohit
appearing for the petitioner and perused the order impugned in
the present petition.
[4.1] Order VIII of the CPC deals with the written statement, set-
off and counter-claim to be filed by the original defendant.
Amended provisions for filing the written statement, which was
given effect from 23.10.2015, of Rule 1 of Order VIII of the CPC
reads as follow:
"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
C/SCA/409/2023 ORDER DATED: 19/01/2023
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."
[4.2] In view of the above provision, the petitioner herein -
original defendant is supposed to file the written statement
within a period of 30 days from the date the defendant is served
with the summons. However, the powers have been given to the
Court to condone the delay if the written statement is not filed
within a period of 30 days with a rider that further delay can be
condoned only for additional 90 days and not beyond the total
period that would come to 120 days.
[4.3] In the present case, it is an undisputed fact that the
summons issued by the learned Judge was served to the
petitioner herein - original defendant on 27.06.2022 and
therefore, the defendant was supposed to file the written
statement on or before 27.07.2022. It is undisputed fact that no
written statement was filed before 27.07.2022.
[4.4] It is pertinent to note that the petitioner herein - original
defendant appeared through Advocate on 01.09.2022 and also
filed an application Exh.9 for adjournment which was granted by
the Court. As per the proviso the Court could have condoned the
delay beyond the period of 30 days but not the period of further
90 days i.e. in all 120 days from the date of service of summons
upon the defendant. In the present case, the petitioner herein -
original defendant did not file the written statement within 120
days and has been filed at the end of 143 days from the date of
serving of the summons.
C/SCA/409/2023 ORDER DATED: 19/01/2023
[4.5] We have gone through the judgment dated 12.02.2019
passed by the Hon'ble Supreme Court in the case of M/s. SCG
Contracts India Pvt. Ltd. (Supra) wherein the Hon'ble Apex
Court after relying upon several decisions has held that delay
cannot be condoned if the written statement is filed beyond the
period of 120 days.
[5.0] Therefore, in our considered opinion, the learned Judge has
committed no error in rejecting the application Exh.10 seeking
condonation of delay caused in filing the written statement
beyond the period permissible under the law. Hence, present
petition is dismissed.
(A.J. DESAI, J.)
(RAJENDRA M. SAREEN, J.)
Ajay
