Akil Kureshi, J.

Petitioner-Indian Overseas Bank [hereinafter to be referred to as, "the petitioner Bank"] has challenged an order dated 2nd April 2018 passed by the learned Judge, Commercial Court, Ahmedabad below Exh. 16 in Commercial Civil Suit No. 152 of 2017.

2. Facts leading to the said challenge are as under :

3. The petitioner is a public sector Bank. The respondents original plaintiffs had availed credit facilities from the petitioner-Bank. According to the Bank, the borrowers committed default in making repayment, due to which the Bank had taken steps under the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 ["SARFESI Act" for short] and the Recovery of Debts & Bankruptcy Act, 1993 ["RDBA Act" for short] and after which the respondents instituted Commercial Civil Suit No. 152 of 2017 against the Bank and prayed that the Bank may be directed to pay a sum of Rs. 30 Crores by way of damages and loss caused to the plaintiffs and a further sum of Rs. 10 Crores for loss of reputation. In the plaint, the plaintiffs have averred that the Bank had instituted proceedings for recovery of a sum of Rs. 18,89,05,602/- under the SARFESI Act and symbolic possession of the properties of the plaintiffs has been taken on 11th May 2017. According to the plaintiffs, there was non cooperation from the Bank which led to caused damage to the plaintiffs on account of non sanctioning and non disbursing further working capital, and loss of reputation on account of such non advances. It is further averred that the plaintiffs had written series of letters to the Bank, despite which the Bank refused to release further working capital which severely affected the operations of the plaintiffs' factory for which the Bank is directly responsible. The summons of this suit was served on the Bank on 9th August 2017. As per the provisions of the Code of Civil Procedure ["CPC" for short], as amended by the Commercial Courts, Commercial Division & Commercial Appellate Division of High Courts Act, 2015 ["Act of 2015" for short], the defendant was required to file its written statement within a maximum period of 120 days from the date of service of summons. This was admittedly not done. The defendant filed application Exh. 16 in the said Civil Suit on 1st February 2018 and requested the learned Judge to condone delay caused in filing the written statement. Along with the application, written statement was presented and a request was made to take it on the record and exhibit the same. Though in this application, the Bank has computed such delay to the extent of 153 days, counsel for the petitioner clarified that the delay actually was only of 33 days. He explained that the total period of 153 days is computed; including maximum period of 120 days available for filing the written statement. On 1st February 2018 itself, the appellant also filed an application for rejection of the plaint under Order VII Rule 11 CPC.

4. The Commercial Court passed the impugned order on application Exh. 16 and rejected prayer of the defendant for condoning delay, and taking the written statement on record. The learned Judge referred to provisions of Order VIII CPC; as amended by the Act of 2015 and came to the conclusion that he has no power to extend the time, beyond the period of 120 days from the date of service of summons, to enable defendant to file the written statement. This order of the Commercial Court is challenged before us in the present petition.

5. Learned advocate Shri Tejas Satta for the petitioner submitted that the suit is frivolous and vexatious, filed by the plaintiff in order to avoid the liability of repayment of Bank's dues. He submitted that the Bank had already initiated proceedings under the SARFESI Act and also taken symbolic possession of the secured assets at which stage, the suit came to be filed on wholly frivolous and vexatious grounds. Counsel further submitted that the provisions of CPC in rel