Gujarat High Court
Invoke Medical System Pvt Ltd Through ... vs Kunal Structure (India) Pvt Ltd on 10 October, 2018
Author: Akil Kureshi
Bench: Akil Kureshi, B.N. Karia
C/SCA/15720/2018 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 15720 of 2018
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INVOKE MEDICAL SYSTEM PVT LTD THROUGH CHAIRMAN/MANAGING
DIRECTOR RAKESH KUMAR PANDEY
Versus
KUNAL STRUCTURE (INDIA) PVT LTD
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Appearance:
MR HB CHAMPAVAT(6149) for the PETITIONER(s) No. 1
for the RESPONDENT(s) No. 1
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CORAM: HONOURABLE MR.JUSTICE AKIL KURESHI
and
HONOURABLE MR.JUSTICE B.N. KARIA
Date : 10/10/2018
ORAL ORDER
(PER : HONOURABLE MR.JUSTICE AKIL KURESHI)
1. Petitioner is a private limited company and is the original defendant in Commercial Suit No. 106 of 2016 pending before the Commercial Court, Rajkot. Petitioner has challenged an order dated 16.02.2017 passed by the said Court refusing to take the petitioner's written statement on record on the ground that the same was tendered beyond the maximum period of time that the Commercial Court could allow for filing such written statements.
2. The facts on record would suggest that the respondent herein had filed a suit for recovery of Rs. 2,45,75,000/- from the present petitioner before the Principal Senior Civil Judge, Rajkot in the year 2014. The summons was duly served on the Page 1 of 4 C/SCA/15720/2018 ORDER defendant on or around 16.06.2014. Upon establishment of the Commercial Courts, the suit was transferred to the Commercial Court, Rajkot, since it involved a commercial dispute of specified value. Upon transfer, the Commercial Court had issued a fresh summons on the defendant. Record is not clear whether such summons was served or not. However, learned advocate for the defendant had appeared on his own on 11.08.2016. All this while, written statement was not filed. On 16.02.2017, the petitioner moved application Exh 35 before the Commercial Court and requested that due to oversight, written statement had not been filed. To enable the defendant to file such written statement, one adjournment may be granted. On this application, the Commercial Court passed the impugned order on the same date holding that maximum time that can be granted to defendant to file written statement is 120 days from the date of service of summons. In the present case, the appearance of the advocate for the defendant i.e. 11.08.2016 was taken as starting point for such limitation. Application was rejected since the request was to extend the time beyond such period.
3. Having heard learned counsel for the petitioner and having perused the documents on record, we do not see any reason to interfere. This Court in case of Jaymata Informatics Pvt. Ltd vs. HCL Infosystems Limited by judgement dated 02.11.2017 in Special Civil Application No. 13430 of 2017 had held that the time limit for filing written statement in the suits before Page 2 of 4 C/SCA/15720/2018 ORDER Commercial Court is non-extendable. Again in case of Indian Overseas Bank vs. Jason Deckor P Ltd in a judgement dated 05.09.2018 in Special Civil Application No. 11710 of 2018 this view was reiterated.
4. Petitioner would however, contend that in the present case, there was no service of summons on the defendant after the suit was transferred to the Commercial Court and that therefore, the period of limitation prescribed under Order 8 Rule 1 as amended for the Commercial Court, cannot be computed from the date of appearance of the advocate. However, for several reasons, we are not inclined to examine this contention. Firstly, after the service of summons of the suit originally in June 2014, for years together the defendant had not filed written statement. It may be that by virtue of the judgement of Supreme Court in case of Salem Advocate Bar Association, Tamil Nadu vs. Union of India reported in [2005] 6 SCC 344 the amended provisions of Order 8 Rule 1 of CPC laying down time limits for filing written statement, may have been interpreted as directory and not mandatory, nevertheless, judicial pronouncements suggest that such time limit should not be lightly allowed to be violated. Even after the suit was transferred to the Commercial Court and the defendant's advocate appear, no steps were taken to file written statement. Application Exh 35 was also not for taken written statement on record. It was an application for adjournment so that the written statement on the next date can be filed. No Page 3 of 4 C/SCA/15720/2018 ORDER reasons have been cited why written statement was not filed earlier except a brief reference that due to oversight, the same had not been filed. This one line explanation is not enough to ignore non-filing of written statement for years together. Even after the Commercial Court dismissed the application on 16.02.2017, the present petition came to be filed more than a year and a half later. At all stages, the petitioner had shown lethargy.
Petition is dismissed.
(AKIL KURESHI, J) (B.N. KARIA, J) JYOTI V. JANI Page 4 of 4