Bombay High Court
Vicon Automobiles (I) Private Limited ... vs Ppg Asian Paints Private Limited on 14 July, 2022
Author: R.I. Chagla
Bench: R.I. Chagla
908-IAL-20894-22.doc
Sharayu Khot.
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
INTERIM APPLICATION (L) NO. 20894 OF 2022
WITH
INTERIM APPLICATION NO. 1689 OF 2021
IN/WITH
COMMERCIAL SUIT NO. 129 OF 2021
Vicon Automobiles Private Limited & Ors. ...Applicants
In the matter between
PPG Asian Private Limited ...Plaintiff
Versus
Vicon Automobiles Private Limited & Ors. ...Defendants
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Mr. Bhavik Lalan a/w Ms. Gaurangi Patil, Ms. Anjali Shahi i/by GP
and Associates for the Applicants/Defendants.
Ms. Rashmi Tiwari i/by Legalite Advisors LLP for the Plaintiff.
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CORAM : R.I. CHAGLA J
DATE : 14 July 2022
ORDER :
1. Heard learned Counsel for the Applicants/Defendants SHARAYU PANDURANG and the learned Counsel for the Plaintiff.
KHOT Digitally signed by SHARAYU PANDURANG KHOT Date: 2022.07.20 19:04:24 +0530
2. By this Interim Application, the Applicants have sought condonation of delay in filing the Written Statement which 1/6 908-IAL-20894-22.doc admittedly is being filed beyond the 120 days after taking into account the period from 15th March 2020 to 28th February 2022 which stood excluded for the purpose of limitation by the order of the Supreme Court in Re : Cognizance for extension of limitation Suo Motu Writ Petition (C) No. 3 of 2020.
3. Learned Counsel appearing for the Applicants/Defendants has submitted that under Order VIII Rule 1 of the Code of Civil Procedure, 1908 it is provided that the limitation for filing the Written Statement in a Commercial Suit is 30 days. Where the Defendants fail to file the Written Statement within 30 days, the Court may allow the same for reasons to be recorded in writing but which shall not be later than one hundred twenty days from the date of service of writ of summons. However, the Court has inherent jurisdiction to condone the delay beyond 120 days.
4. Learned Counsel appearing for the Applicants has submitted that it would be necessary for this Court to accept the filing of the Written Statement in order for a full and proper determination of the defence of the Defendants in the adjudication of the Commercial Suit.
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908-IAL-20894-22.doc
5. Learned Counsel appearing for the Plaintiff has referred to the Affidavit in Reply filed on behalf of the Plaintiff, wherein it is stated that the interlocutory application has been filed by the original Defendants to condone the delay of 92 days beyond the statutory period of 30 days in filing the Written Statement which delay is intentional. The writ of summons dated 12th August 2021 was served upon the original Defendants on 20th August 2021 and it was admittedly received by the original Defendants giving them ample time to file the Written Statement. As per the statutory period of 30 days to file the Written Statement, the Written Statement should have been filed on 19th September 2021. Taking into account the exclusion of the period for the purpose of limitation by the aforesaid order of the Supreme Court, which period is from 20th August 2021 till 28th February 2022, the 30 day period for filing the Written Statement would expire on 30th March 2022 and the 90 days period therefrom would expire on 28th June 2022. The interlocutory application has been filed on 30th June 2022 i.e. beyond the 120 days mandatory period. She has submitted that beyond the statutory period of 30 days for filing the Written Statement, there is 90 days grace period which this Court has discretion to grant subject to the Defendants furnishing just and reasonable explanation and/or on 3/6 908-IAL-20894-22.doc payment of costs as fixed by this Court. The Defendants in the present case, have clearly ignored the process of law and taken for granted the grace period of 90 days without even bothering to move before this Court. The Interim Application for condonation of delay beyond 120 days i.e. 92 days beyond the statutory period of 30 days is accordingly liable to be rejected by this Court.
6. Learned Counsel appearing for the Plaintiff has relied upon the decision of the Supreme Court in SCG Contracts India Pvt.Ltd. Vs. K.S. Chamankar Infrastructure Pvt.Ltd.1, wherein it is observed that the proviso added to the Code of Civil Procedure by the Commercial Courts, Commercial Division, Commercial Appellate Division of High Courts Act, 2015 makes it mandatory that no Written Statement can be taken on record in commercial suits, if it is filed beyond 120 days from the date of service of summons of the Suit. It is accordingly made clear that the Written Statement not filed within 120 days, the right of the Defendants to file Written Statement would be forfeited.
7. In the present case, admittedly the Defendants are 1 Civil Appeal No. 1638 of 2019 4/6 908-IAL-20894-22.doc seeking condonation of delay beyond 120 days for filing Written Statement and this would be contrary to the proviso added to the Code of Civil Procedure, 1908 by Commercial Courts, Commercial Division, Commercial Appellate Division of High Courts Act, 2015 as well as the settled law.
8. In view thereof, the present Application should be rejected.
9. Having considered the submissions, in my view, the original Defendants cannot place reliance upon Section 151 of the Code of Civil Procedure, 1908, particularly, considering that the proviso to Order VIII Rule 1 of the Code of Civil Procedure, 1908, by virtue of the amendment applicable to the commercial disputes under the Commercial Courts, Commercial Division, Commercial Appellate Division of High Courts Act, 2015, makes it mandatory that no Written Statement can be taken on record in the Commercial Suits, if it is not filed within 120 days from the date of service of summons. The learned Counsel for the Plaintiff is correct in her submission that in the event the Written Statement is not filed within 120 days, the right of the original Defendants to file the Written Statement would 5/6 908-IAL-20894-22.doc be forfeited.
10. Thus, in any view of the matter, the Interim Application for condonation of delay in filing of the Written Statement beyond 120 days cannot be accepted, considering that it is a Commercial Suit and governed by the Commercial Courts Act, 2015. The decision in SCG Contracts India Pvt.Ltd. (supra) is apposite.
11. In view thereof, the reliefs sought for in the Interim Application is rejected.
12. The Interim Application is disposed of.
13. There shall be no order as to costs.
14. The Commercial Suit No. 129 of 2021 shall be listed as undefended Suit.
[R.I. CHAGLA J.] 6/6