Gujarat High Court
Niravbhai Mahendrabhai Trivedi vs Nico Scientific And Medical Devices ... on 25 June, 2024
Author: Sunita Agarwal
Bench: Sunita Agarwal
NEUTRAL CITATION
C/SCA/9129/2024 ORDER DATED: 25/06/2024
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 9129 of 2024
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NIRAVBHAI MAHENDRABHAI TRIVEDI
Versus
NICO SCIENTIFIC AND MEDICAL DEVICES PVT. LTD.
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Appearance:
MR YUSUFKHAN PATHAN(3799) for the Petitioner(s) No. 1
MR.RAJESH P VYAS(7267) for the Petitioner(s) No. 1
for the Respondent(s) No. 1
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CORAM:HONOURABLE THE CHIEF JUSTICE MRS. JUSTICE
SUNITA AGARWAL
and
HONOURABLE MR. JUSTICE PRANAV TRIVEDI
Date : 25/06/2024
ORAL ORDER
(PER : HONOURABLE THE CHIEF JUSTICE MRS. JUSTICE SUNITA AGARWAL)
Heard the learned counsel for the petitioner and perused the record.
2. This petition under Article 227 of the Constitution of India
invoking the supervisory jurisdiction of this Court has been filed
challenging the judgment and order dated 05.01.2023 passed by the
learned Judge, Commercial Court, City Civil Court, Ahmedabad in
rejecting the application Exh.18 filed by the defendant-the petitioner
herein for condonation of delay in filling the reply (written statement) in
the Commercial Civil Suit No. 1403 of 2021.
NEUTRAL CITATION
C/SCA/9129/2024 ORDER DATED: 25/06/2024
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3. The order impugned records that the Commercial Suit is a
summary suit filed under Order XXXVII Rule 3 of the Code of Civil
Procedure. As per the procedure prescribed under Order XXXVII, the
defendant was required to file appearance within a period of ten days
from the date of receipt of the summon. The defendant-namely the
petitioner herein was served with the summon on 06.12.2019 and put in
appearace on 02.12.2019 before the Court when he filed an application
seeking time to engage a lawyer, which was duly allowed. The advocate
engaged by the defendant filed his vakalatnama on 01.01.2020 and
thereafter, the application Exh.18 for condonation of delay in filling the
written statement was filed on 17.06.2021.
4. It was, thus, noted that the defendant had been represented by the
lawyer engaged by him who had filed vakalatnama on 01.01.2020, i.e.
about 56 days after service of summons. The appearance put in by the
defendant was itself beyond the period prescribed in Order XXXVII Rule
3, CPC.. The contention of the learned advocate appearing for the
defendant that the defendant had put in appearance on 02.12.2019 and
hence suit cannot be dismissed, has been rejected, noticing that even if
the date 02.12.2019 is considered to be date of filling of an appearance on
behalf of the defendant, no application for condonation of delay had been
NEUTRAL CITATION
C/SCA/9129/2024 ORDER DATED: 25/06/2024
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filed at that point of time.
4.1 These findings returned by the Commercial Court in rejecting the
application seeking condonation of delay has been challenged on the
ground that due to onset of Covid-19 pandemic, the Apex Court in
Re: Cognisance for Extension of Limitation extended limitation in
filling petitions/applications/suits/appeals/all other proceedings
prescribed under the general law of limitation as also the special laws
(both Central and State) uptill 2022. The submission is that the
application seeking condonation of delay was required to be allowed by
the Commercial Court.
5. At the outset, we may note that this argument seems to have been
taken for the first time in the present petition and has not been agitated
before the Commercial Court, inasmuch as, there is no whisper about the
submission made on behalf of the defendant before it.
5.1 The judgment and order dated 05.01.2023 cannot be faulted for
non-consideration of this submission. Moreover, the submission has been
taken that the ground of extension of time by the Apex Court due to
onset of Covid-19 had been taken in the review petition, which has been
NEUTRAL CITATION
C/SCA/9129/2024 ORDER DATED: 25/06/2024
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rejected by the Judge, Commercial Court by the judgment and order dated
16th March, 2024 in the review application preferred by the
petitioner/defendant.
6. Suffice it to note that the plea of the petitioner/defendant to
condone the delay in filling the written statement in a summary suit, is
misconceived, inasmuch as, summons were served upon the defendant on
06.11.2019, at the time when no one knew about the Covid-19. For the
first time, Covid-19 virus presence was felt in India in the month of
March, 2020, when the first lockdown was declared on 23.03.2023.
7. As noted hereinabove, the learned advocate engaged by the
petitioner/defendant had filed vakalatnama in the summary suit on
01.01.2020 without filing any reply. No application for condonation of
delay in filing the written statement was filed. The petitioner took almost
one year in filling the application, which has been rejected vide order
dated 05.01.2023. The extension of limitation period by the Apex Court
during the currency of Covid-19 pandemic started from the month of
March, 2020. Any delay prior to the month of March, 2020, could not
have condoned based on the extension of the limitation period granted by
the Apex Court in the aforesaid writ petition due to onset of Covid-19.
NEUTRAL CITATION
C/SCA/9129/2024 ORDER DATED: 25/06/2024
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8. The reliance placed by the learned advocate for the petitioner upon
the decision of the Apex Court in the case of Aditya Khaitan & Ors. vs.
IL and FS Financial Services Limited [2023 LiveLaw (SC) 845] is of
no avail to the petitioner in the facts and circumstances of the present
case.
9. For the aforesaid, we do not find any infirmity in the impugned
judgment and order passed by the Commercial Court in rejecting the
application Exh. 18, as also the order passed in the review petition
namely application Exh.22.
10. The instant petition is, accordingly, dismissed.
(SUNITA AGARWAL, CJ )
(PRANAV TRIVEDI,J)
C.M. JOSHI
