IMPORTANT POINT
Failure to comply with the statutory period for filing a written statement and failure to approach the Trial Court for supply of the paper book can lead to the forfeiture of the right to file the written statement.

JUDGMENT

Manmeet Pritam Singh Arora, J. (Oral)

1.  The present petition filed under Article 227 of the Constitution of India impugns the order dated 19.12.2022 passed by the District Judge (Commercial Court), North, Rohini, Delhi in CS (Comm) 282/22 (`Trial Court') whereby the Trial Court struck off the defence of the Petitioners herein.

1.1.  The Petitioners are original defendant Nos. 1 to 3 and Respondent No. 1 is the plaintiff and Respondent No. 2 is defendant No. 4 before the Trial Court.

1.2.  The commercial suit has been filed by Respondent No. 1 seeking recovery of Rs. 65,01, 674/- along with interest against the Petitioners and Respondent No. 2 and is governed by provisions of Commercial Courts Act, 2015 (`Act of 2015').

2.  The Trial Court in its order dated 19.12.2022 recorded that the Petitioners herein have failed to file their written statement within the statutory period of 120 days and further, no application was preferred before the Trial Court for seeking enlargement of time to file the written statement. In view of the said facts, the Trial Court as per Order VIII Rule 1 of Civil Procedure Code, 1908 (`CPC') as amended by the Act of 2015 struck off the defence of the Petitioners herein.

3.  Learned counsel for the Petitioners states that though the summons were served on 27.07.2022 through post, however, the paper book received with the summons was incomplete. He states that an e-mail was, thereafter, issued by counsel for the Petitioners on 10.11.2022 to the counsel for Respondent No. 1 for supply of the complete paper book. He has, however, fairly conceded that the Petitioners do not have in their possession the copy of the said e-mail.

3.1.  He states that the complete paper book was received by the Petitioners after passing of the impugned order dated 19.12.2022, from Respondent No. 1, upon a request being sent through e-mail dated 19.12.2022.

3.2.  He states that since the complete paper book was not served upon the Petitioner on 27.07.2022, therefore, the period of limitation does not commence from the said date of summons received and he, therefore, prays that the impugned order be set aside.

3.3.  Learned Counsel for the Respondent No. 1 on instructions states that the Respondent No. 1 are not in receipt of the e-mail dated 10.11.2022, which has been pleaded by the Petitioners herein. He states that he has as well verified the e-mails addresses of the Respondent No. 1 before making the said statement. He refers to the following email addresses:

(i) legal.jindal@gmail.com,

(ii) jindald30@gmail.com; and

(iii) vijayahlawat86@gmail.com.

3.4.  He states that in view of the proviso to Order VIII Rule 1 of the CPC as amended by the Act of 2015 the statutory period of 120 days is to be reckoned from 27.07.2022 i.e., the date of service of summon. He, therefore, states that there is no infirmity in the impugned order dated 19.12.2022 passed by the Trial Court.

4.  This Court has considered the submission of the Counsel for the parties and perused the record.

5.  It is admitted by the Petitioners that the summons was duly served upon the Petitioners on 27.07.2022 and with the receipt of the summons, the Petitioners were put to unequivocal notice that they are obliged in law to file the written statement within 30 days from the receipt of summons.

6.  The Petitioners have admitted that they received a paper book along with the summons, however, it is now sought to be alleged that the said paper book was incomplete. This submission of the Petitioners is not borne out from the record.

6.1.  Though the Petitioners was duly represented before the Trial Court on 19.12.2022 through a counsel; however, no such plea of service of incomplete paper book was raised before the Trial Court.

6.2.  The plea of the Petitioners that their counsel issued an e-mail on 10.11.2022 is also not substantiated from the record; no such email has been placed on record. The Respondent has categorically denied receipt of any such alleged e-mail.

6.3.  The