Substantial justice prevails over technicalities; delay in filing Written Statement within 120 days can be condoned if justified.

ORDER :

R.I.Chagla, J. - By this Interim application the Applicants/Original Defendants have sought condonation of delay in filing Written Statement and for directions to the Registry to take the Written Statement on record.

2. The Applicants/Original Defendants have in the Interim Application stated that the Writ of Summons had been served on 9th June, 2023, though the present Suit was instituted on 9th December, 2022 as per records available on the Bombay High Court website. The copy of the Writ of Summons duly served on the Applicants is annexed at Exhibit-A to the Interim Application.

3. The Applicants have further stated in Paragraph 6-8 of the Interim Application that upon service of Writ of Summons, Applicant No.2 being the owner of Applicant No.1 had to gather all documents pertaining to the Suit. Thereafter, the Applicants upon collection of the relevant documents, E-mails and Bank Statements pertaining to the subject matter of the present Suit had taken time to understand and prepare the defence which involves reading and understanding voluminous documents. A draft Written Statement was prepared for the Applicants' comments and perusal. Thereafter, the Advocates for the Applicants had to obtain multiple documents pertaining to the contracts entered into by the Plaintiff viz. Bank Statements for financial years from 2020-2021 till 2022-2023, relevant E-mails from the year 2019 till 2023, various Invoices raised by the Plaintiff towards the Applicants. Accordingly, in view of the aforementioned, there has been delay in filing of the Written Statement.

4. The Applicants have stated in Paragraph 9 of the Interim Application that the Written Statement was lodged on 5th October, 2023, being the 118th day from service of Writ of Summons.

5. The Applicants further state that they were prevented by bonafide reasons from filing the Written Statement within the prescribed period of 30 days. However, the Written Statement was affirmed and the present Interim Application is preferred within the permissible 120 days from date of service of Writ of Summons.

6. Mr.Kamat, learned Counsel appearing for the Applicants/Original Defendants states that the Written Statement having been lodged within 120 days, this Court may exercise its powers under Order VIII Rule 1 read with the Amendments brought in by the Commercial Courts Act, 2015 to condone the delay which is not beyond the permissible 120 days from service of Writ of Summons. He has accordingly, submitted that the delay in filing the Written Statement be condoned.

7. Ms.Isha Sawant, the learned Counsel appearing for the Plaintiff has tendered an Affidavit-in-Reply dated 1st February, 2024 which is taken on record. There is an objection to the grant of relief sought for in the Interim Application on the ground that no proper reasons have been furnished by the Applicants/Original Defendants for delay in filing of the Written Statement.

8. Ms.Sawant has submitted that the statutory period for filing of the Written Statement is 30 days after service of Writ of Summons and further 90 days is upon exercise of discretion of this Court in condoning the delay. She has submitted that the Defendants were aware in December 2022 when the Order of Arrest of the Defendant-Vessel was passed on 9th December, 2022 that the above Suit had been filed. The Applicants had filed an Application for allowing the Defendant-Vessel to ply under arrest on 15th December, 2022. This was allowed by order dated 23rd December, 2022 on the Defendants furnishing security by way of Demand Draft. The Defendants have merely stated that they were instructing their Advocates, providing E-mails and Bank Statements which are not sufficient grounds for condonation of delay. He has accordingly submitted that the Defendants should have taken steps for filing their Written Statement within the mandatory period of 30 days from service of Writ of Summons as they would have been aware of the documents which they have now sought lack of a