Extension of limitation period and effective service date for filing written statement under the Commercial Courts Act, 2015.

JUDGMENT :

TUSHAR RAO GEDELA, J.

[The proceeding has been conducted through Hybrid mode]

CM APPL. 9941-42/2023 (Exemption)

1. This is an application seeking exemption from filing certified copies of the annexures.

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

3. Application stands disposed of.

CM(M) 324/2023 & CM APPL. 9940/2023

4. The petitioner challenges the order dated 17.12.2022 passed in CS (COMM) No. 3903/2021 titled ‘South DMC vs. Manoj Kumar & Anr.’ CM(M) 325/2023 & CM APP No. 9943/2023 (Stay) whereby the written statement filed by the petitioner/defendant was directed to be taken off record.

5. Mr. Jagjit Singh, learned counsel appearing for the petitioner submits that though the memorandum of appearance on behalf of petitioner/defendant was filed on 01.02.2022 however, the plaint alongwith the legible copies were not served upon the petitioner/defendant uptill 17.05.2022. Learned counsel points out to the order dated 17.05.2022 to submit that even by the order dated 17.05.2022, the learned Trial Court had directed the respondent/plaintiff to supply legible copy of the documents which were annexed to the plaint so as to enable the petitioner/defendant to file its written statement.

6. Mr. Singh, learned counsel admits that the complete set of documents alongwith plaint were served upon the counsel for the petitioner by the counsel for the respondent by whatsapp though the date is not available with him.

7. Mr. Singh, learned counsel for the petitioner/defendant submits that this Court may take 17.05.2022 as a date of effective service upon the petitioner/defendant of the complete set of legible documents. Learned counsel further submits that in case the service of copies of the plaint alongwith legible copies of the documents is taken to be furnished to the petitioner/defendant on 17.05.2022, the written statement filed on 06.08.2022 alongwith the application seeking condonation of delay in filing such written statement ought to have been considered as filed within the stipulated period of 120 days as prescribed under Order VIII Rule 1 of CPC, 1908 as amended by the Commercial Courts Act, 2015.

8. Learned counsel submits that the delay, if at all, from 17.05.2022 would at best be a delay of 83 days which is well within the outer limit of 120 days.

9. Learned counsel submits that, in view of the aforesaid facts, learned Trial Court ought to have taken the written statement on record.

10. Mr. Singh also submits that having failed to take the written statement on record, the impugned order prejudices the case of the petitioner/defendant irreparably.

11. Per Contra, Ms. Jagrati Singh, learned counsel appearing for the respondent/plaintiff draws attention of this Court to page 65 of the present petition which is the order dated 17.05.2022 to submit that the learned Trial Court had made it clear that the supply of legible copy of the documents within two days from the said date, would not be a ground to extend the period of filing of the written statement. On that basis, Ms. Jagrati submits that learned Trial Court had not reckoned 17.05.2022 as a date of effective service.

12. Learned counsel further submits that the condonation of delay application, which was filed by the petitioner/defendant, is bereft of any details and is ambiguous which does not give the correct factual position.

13. Learned counsel submits that having regard to the fact that there is no detail given as to when the defendant was originally served as also a doubt being whether the copies supplied were legible or not, there cannot be any fault found in the impugned order as passed by the learned Trial Court.

14. Ms. Jagrati submits that no prejudice has been caused to the petitioner/defendant and the learned Trial Court has acted in accordance with law and as such the impugned order is sustainable.

15. This Court has considered the rival submissions as well as perused the impugned order and other orders placed on record.

16. At the outset, it is observed that t