Gujarat High Court

Hareshkumar Valjibhai Golani vs State Of Gujarat on 28 April, 2025

Author: Sunita Agarwal

Bench: Sunita Agarwal

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                             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

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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

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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

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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

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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

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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

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such order in relation to the suit as it thinks fit and on pronouncement of such judgment a decree shall be drawn up.