Timely filing of pleadings and applications is crucial under the Commercial Courts Act, and pleadings filed beyond the prescribed period are non-existent in law unless taken on record.

JUDGMENT

Tushar Rao Gedela, J. (Oral)

[The proceeding has been conducted through Hybrid mode]

CM APPL. 5022/2023 (for exemption)

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

2. The application stands disposed of.

CM(M) 167/2023 & CM APPL. 19650/2023 (for stay)

3. Petitioner challenges the order dated 13.07.2022 in CS(COMM.) 354/2021 titled as "Adani Wilmar Ltd. vs. M/s Marv Global Services" whereby the learned Trial Court had dismissed the application under Section 5 of the Limitation Act, 1963 r/w Order VIII Rule 1 of the CPC, 1908 seeking condonation of delay in filing the written statement.

4. Learned counsel appearing for the petitioner submits that, no doubt that the written statement had been filed on 12.07.2022, which was beyond the prescribed period of 120 days so far as commercial suits are concerned. However, learned counsel submits that since the suit for rendition of accounts, as also recovery of the sums due, against the respondent, was filed by the petitioner on 01.04.2021, which was in the knowledge of the respondent, principles of Section 10 of CPC, 1908 would apply to the present suit, which was not considered by the learned Trial Court while passing the impugned order.

5. Learned counsel submits that the counsel for the respondent had, in fact, appeared in the suit filed by the petitioner on 10.11.2021 and keeping that in view, the learned Trial Court ought to have considered, even without formal application being filed under Section 10 CPC, 1908, that the subsequent suit filed by the respondent, wherefrom the present impugned order arises, ought to have been stayed.

6. Learned counsel submits that the learned Trial Court simply ignored the aforesaid submissions and took the written statement of the petitioner off the record as also simultaneously struck off the defence of the petitioner/defendant.

7. Learned counsel appearing for the petitioner submits that so far as the suit filed on behalf of the respondent is concerned, the summons were issued on 15.12.2021 and the fact that the earlier suit is pending was neither disclosed in the plaint nor informed by the counsel appearing before the learned Trial Court.

8. Learned counsel also relies upon the judgment of the Supreme Court in Prakash Corporates vs. Dee Vee Projects Limited, reported as (2022)5 SCC 112 in Civil Appeal No.1318/2022, rendered on 14.02.2022, particularly upon para 26.1, whereby the Supreme Court has observed that procedures are handmade of justice and insofar as the commercial suits are concerned, the Trial Courts ought to also consider other provisions of the Code of Civil Procedure like those of Section 10 of the CPC, 1908.

9. On that basis, learned counsel submits that the learned Trial Court ought to have taken the said observation of the Supreme Court in consideration and condoned the delay in filing the written statement, which was filed on 12.07.2022 and the same ought to have been taken on record.

10. Learned counsel submits that the rejection of the written statement without considering the applicability of Section 10 CPC or the applicability of the judgment of the Supreme Court in Prakash Corporates (supra) warrants interference by this Court under Article 227 of the Constitution of India.

11. Per contra, learned counsel appearing for the respondent vehemently disputes the facts as narrated by the learned counsel for the petitioner.

12. Learned counsel submits that the application under Section 10 of the CPC was filed on 14.09.2022 and not along with the written statement or even prior to the written statement.

13. Learned counsel submits that having regard to the fact that this issue was never brought to the notice of the learned Trial Court in time, more particularly on 13.07.2022, when the impugned order was passed, it cannot be expected from the learned Trial Court to have considered any of the aforesaid submissions at all.

14. Learned counsel also submits that, admittedly learned counsel for the petition