Madras High Court
Unknown vs M/S.Shah Trading Corporation on 5 June, 2025
Author: N. Sathish Kumar
Bench: N. Sathish Kumar
C.R.P.No.5241 of 2024
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 05.06.2025
CORAM :
THE HONOURABLE MR. JUSTICE N. SATHISH KUMAR
C.R.P.No.5241 of 2024
and
C.M.P.No.29285 of 2024
1.M/s.K.M.Plastics,
Represented by its Partner cum Authorised Signatory,
M.Meenakshisundaram,
188/B2, Pollachi-Coimbatore Main Road,
Near Mullupadi Railway Gate,
Mettupalayam (P.O.) Pollachi,
Coimbatore District – 642 110.
2.M.Meenakshisundaram
Partner cum Authorised Signatory of M/s.K.M.Plastics,
188/B2, Pollachi-Coimbatore Main Road,
Near Mullupadi Railway Gate,
Mettupalayam (P.O.) Pollachi,
Coimbatore District – 642 110.
3.M.Promodhini
Partner of M/s.K.M.Plastics,
188/B2, Pollachi-Coimbatore Main Road,
Near Mullupadi Railway Gate,
Mettupalayam (P.O.) Pollachi,
Coimbatore District – 642 110.
Page 1 of 10
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C.R.P.No.5241 of 2024
4.M.Vijayavalli
Partner of M/s.K.M.Plastics,
188/B2, Pollachi-Coimbatore Main Road,
Near Mullupadi Railway Gate,
Mettupalayam (P.O.) Pollachi,
Coimbatore District – 642 110. ... Petitioners
Vs.
M/s.Shah Trading Corporation,
(A Registered Partnership Firm)
Represented by its Partner, Nitin P.Shah
Head Office, 64, Suramagalam,
Main Road, Leigh Bazzar,
Salem – 636 009. ... Respondent
PRAYER: Civil Revision Petition filed under Section 115 of the Code of
Civil Procedure against the fair and decretal order dated 21.09.2024 passed
in I.A.No.5 of 2024 in C.O.S.No.62 of 2023 on the file of the Commercial
Court, Coimbatore.
For Petitioners : Mr.N.C.Ashok Kumar
For Respondent : Mr.N.Nithianandam
ORDER
Challenging the order of the Commercial Court, Coimbatore, dated
21.09.2024, made in I.A.No.5 of 2024 in C.O.S.No.62 of 2023, dismissing
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the application under Section 5 of the Limitation Act to condone the delay
of 157 days in filing an application to set aside the ex parte decree passed
against the 2nd petitioner, the present revision has been filed.
2.The suit has been originally filed by the respondent in February,
2021, as Commercial Suit before the Principal District Court, Coimbatore,
for recovery of a sum of Rs.1,55,28,089/-. The 2nd petitioner herein is the
2nd defendant in the suit, representing the 1st defendant Company. In fact,
after establishment of the Commercial Court, the suit has been transferred
to the Commercial Court on 14.03.2023. Prior to such transfer, the
defendants had not filed written statement within 120 days as required
under the Commercial Courts Act, 2015. However, they had filed written
statement only in the month of November, 2021, i.e., beyond the period of
120 days as mandated under the Act. When the matter stood thus, the case
has been transferred to the Commercial Court on 14.03.2023. Before the
Commercial Court, as the defendants did not file their written statement,
they were set ex parte on 27.07.2023 and ex parte evidence was recorded
on 02.08.2023 and judgment was pronounced on 16.08.2023. Thereafter,
the present application has been taken out by the petitioners to condone the
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delay of 157 days in filing the application to set aside the ex parte decree,
contending inter alia that the 2nd petitioner met with an accident and
received a bullet injury accidentally and was admitted in Kovai Medical
Centre on 04.12.2022 and discharged on 10.12.2022. Even thereafter, he
was not in a position to appear before the Court physically. Therefore,
there was a delay of 157 days in filing the application to set aside the ex
parte decree. The said application has been dismissed by the trial Court.
Challenging the same, the present revision has been filed.
3.Learned counsel appearing for the revision petitioners would fairly
submit that, though the written statement was not filed within the period as
mandated under the Commercial Courts Act, even then, the petitioners'
right to participate in the trial cannot be taken away. In any event, the
petitioners/defendants ought to have been given an opportunity to cross-
examine the plaintiff, which has not been done in this case. Therefore, it is
his contention that, though ex parte decree cannot be set aside as written
statement has not been filed, the fact remains that the right of the petitioners
to participate in the trial cannot be taken away. In respect of his
submission, he has placed reliance on the judgment of the Hon'ble Apex
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Court in Ranjit Singh and another v. State of Uttarakhand and others
reported in 2024 SCC OnLine SC 2932.
4.Whereas, the learned counsel for the respondent would submit that
the reasons assigned in the petition to condone the delay of 157 days,
cannot be accepted for the simple reason that, even at the relevant point of
time, the 2nd petitioner had appeared before the criminal Courts in the same
campus and the said fact has been taken note of by the trial Court.
5.Heard the learned counsel on either side and perused the materials
available on record.
6.It is pertinent to note that the suit itself was laid as a Commercial
Suit and was pending before the District Court, whereas, written statement
has not been filed within a period of 120 days, which is mandatory under
the Commercial Courts Act. If any person fails to file his written statement
within the mandatory period, he forecloses his right to make his defence.
This is the position already settled by the Hon'ble Apex Court. Admittedly,
in this case, written statement has not been filed. Thereafter, the case been
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transferred to the regular Commercial Court on 14.03.2023. Even
thereafter, the defendants were not diligent in pursuing their case and
therefore, they were set ex parte on 27.07.2023 and ex parte evidence was
taken on 02.08.2023 and the suit has been decreed on 16.08.2023.
Therefore, any subsequent development or reason for not appearing before
the Court, will not serve any purpose. Even before the alleged accident in
the year 2022, the petitioners' right to make their defence was already lost
due to non-filing of the written statement within a period of 120 days.
Therefore, the contention of the learned counsel for the petitioners that the
ex parte decree should be set aside, cannot be countenanced.
7.However, the fact remains that the Hon'ble Supreme Court, in
Ranjit Singh and another v. State of Uttarakhand and others (supra), has
clearly held that “even if a defendant does not file a written statement and
the suit is ordered to proceed ex parte against him, the limited defence
available to the defendant is not foreclosed. A defendant can always cross-
examine the witnesses examined by the plaintiff to prove the falsity of the
plaintiff's case. A defendant can always urge, based on the plaint and the
evidence of the plaintiff, that the suit was barred by a statute such as the
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law of limitation. Therefore, notwithstanding an order passed earlier to
proceed ex parte, while deciding an application for striking out the
defence, it was the duty of the Court to give an opportunity of being heard
to the defendants. However, that was not done. As the suit was fixed on 30 th
May, 2002, the defendants were entitled to a notice that the suit would be
taken up on an earlier date for hearing the application for striking out the
defence.”
8.Therefore, even though the petitioners were set ex parte, the
Commercial Court ought to have granted one opportunity to them to atleast
cross-examine the witness examined on the side of the plaintiff. The
proceedings and findings of the trial Court do not indicate that any such
attempt has been made. Therefore, this Court is of the view that, though the
defendants have already lost their right to put forth their defence on record,
atleast they should have been given an opportunity to cross-examine the
witness, which has not been done in this case. In such view of the matter,
though the defendants have not specifically challenged the ex parte decree,
and the matter is now at the stage of condonation of delay, taking note of
the fact that opportunity has not been given as per the judgment of the
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Hon'ble Apex Court in Ranjit Singh and another v. State of Uttarakhand
and others (supra), this Court, in exercise of its powers under Article 227
of the Constitution of India, is inclined to condone and delay and also set
aside the ex parte decree to give one more opportunity to the defendants to
cross-examine the witness P.W.1.
9.Accordingly, the impugned order dated 21.09.2024 passed in
I.A.No.5 of 2024 in C.O.S.No.62 of 2023, is set aside, and further, the ex
parte decree and judgment in C.O.S.No.62 of 2023, dated 16.08.2023, is
also set aside for the limited purpose of granting one more opportunity to
the defendants to cross-examine the witness P.W.1. It is made clear that the
trial Court shall fix a date for cross-examination of P.W.1, and a maximum
of two days' time alone shall be given to the defendants for cross-
examination. After cross-examination, the suit shall be disposed of within a
period of one month thereafter.
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10.With the above directions, this Civil Revision Petition is disposed
of. No costs. Consequently, connected miscellaneous petition is closed.
05.06.2025
mkn
Internet : Yes
Index : Yes / No
Speaking order / Nonspeaking order
Neutral Citation : Yes / No
To
The Judge,
Commercial Court (District Judge Cadre),
Coimbatore.
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N. SATHISH KUMAR, J.
mkn
05.06.2025
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