The main legal point established is the balancing of the exemption from the Limitation Act with the party's diligence in taking steps on time.

JUDGMENT :

Tushar Rao Gedela, J.

[The proceeding has been conducted through Hybrid mode]

CAV 130/2023

1. Since the counsel for the respondent enters appearance, the caveat stands discharged.

CM APPL. 12208/2023 (for exemption)

2. Exemption is allowed, subject to all just exceptions.

3. The application stands disposed of.

CM(M) 409/2023 & CM APPL. 12207/2023 (for stay)

4. Petitioner challenges the order dated 16.01.2023 in CS (COMM) No. 304/2021 titled as “Arcing Solutions India Private Limited vs. Ritesh Chauhan”, whereby the application under Section 5 of the Limitation Act seeking condonation of delay in filing the written statement filed on behalf of the petitioner/ defendant was dismissed and written statement was taken off record. Simultaneously, the learned Trial Court also struck off the defense of the petitioner/ defendant.

5. Learned counsel appearing for the petitioner submits that vide order dated 28.08.2021, the learned Trial Court had passed orders issuing process. Learned counsel invites attention of the Court to the endorsement of the postal authorities dated 17.09.2021 on the envelope placed at page 204 of the present petition, to the effect that the addressee is not available at the said address and that the addressee had left the said address, to submit that copies of the plaint and documents were not received by the petitioner.

6. Learned counsel further invites attention of this Court to the email dated 18.07.2021 received by the petitioner, whereby the petitioner was made aware of the present suit pending before the learned Trial Court.

7. Learned counsel submits that the petitioner appeared in person on 18.12.2021 before the learned Trial Court vide the VC proceedings, as also on subsequent hearings. While the matter was pending, it was on 17.05.2022 that the petitioner sought copy of the plaint along with the documents.

8. Learned counsel submits that the learned Trial Court furnished the copy of the plaint along with the documents from its own record, subject to a costs of Rs. 10,000/-, and directed that the written statement thereto, be filed within thirty days from the said date.

9. Learned counsel submits that the written statement was finally filed on Trial Court Record on 18.07.2022 after copies were received by the counsel for the petitioner.

10. Learned counsel submits that reckoned from 17.05.2022, the day when the set of plaint along with the documents was furnished to the petitioner/ defendant, the filing of the written statement on 18.07.2022 would fall within the prescribed outer limit period of 120 days under the provisions of Order VIII Rule 1 of the CPC, 1908, as amended by the Commercial Courts Act, 2015.

11. Per contra, Mr. Garg, learned counsel for the respondent vehemently opposes the petition and invites attention of this Court to the order dated 29.03.2022, whereby the learned Trial Court had closed the opportunity to file the written statement on the basis that vide the order dated 18.11.2021, it was specifically noted that if no settlement is arrived at on 29.01.2022, the written statement must be filed within ten days thereafter.

12. On the basis that no such written statement was filed in compliance of the said order, the learned Trial Court had closed the opportunity to file the written statement.

13. Learned counsel submits that it is an admitted case of the petitioner that the petitioner had indeed appeared on 18.11.2021 before the learned Trial Court.

14. Learned counsel next invited the attention of this Court to the order dated 17.05.2022 to submit that despite the earlier orders, the learned Trial Court had granted indulgence to the petitioner/ defendant by supplying copy of the plaint along with the documents, subject to a payment of cost of Rs. 10,000/- to be paid to the respondent/ plaintiff.

15. Learned counsel submits that even this direction was violated by the petitioner, both in terms of the non-filing of the written statement within 30 days thereof, nor the payment of cost of Rs. 10