JUDGMENT :

N.V. Anjaria, J.

1. Heard learned advocate Mr. Pratik Bhatia for the petitioner and learned advocate Mr. Kunal Shah for the respondent, at length.

2. The challenge in this Special Civil Application is directed against order dated 14.9.2021 passed below Exhibit 17 application by learned Principal Senior Civil Judge, Commercial Court, Vadodara in Commercial Civil Suit No. 144 of 2019. Thereby, the court rejected the application of the petitioner for leave to defend. The merit were not gone into by the court, however on the ground that there was delay in giving the leave to defend application and that the same was not accompanied by plausible explanation for delay, the application for leave to defend was required to be rejected.

3. Narrating the facts in nutshell, the respondent herein-original plaintiff instituted Summary Suit No. 15 of 2012 against the petitioner-defendant on 8.2.2012 before the court at Vadodara for recovery of Rs. 8,38,626/- with interest. It was the case pleaded that the petitioner had approached the plaintiff for purchasing Redimix Concrete material for its project. As per the purchase order dated 15.2.2009, though the delivery was made, the petitioner failed to make outstanding payments as per the invoices made.

3.1. While the petitioner entered his appearance upon issuance of summons in the suit, it is stated that the respondent did not provide neither the list of documents nor the documents forming part of the plaint and referred to in the suit. It was stated that respondent did not serve the summons for judgment on petitioner-defendant within ten days of petitioner entering his appearance in the suit. It appears that the said Summary Suit No. 15 of 2012 came to be renumbered as Commercial Suit No. 144 of 2019 upon coming into force of the Commercial Courts Act and came to be transferred to the Commercial Court.

3.2. The respondent filed summons for judgment on 23.1.2019 under Order 37Rule 3(4) of the Code of Civil Procedure, 1908 which was served to the petitioner on 28.2.2019, however without necessary documents the petitioner requested the respondent-plaintiff to provide the documents based on which the plaint and the summons for judgment were filed, however such documents were not provided, stated the petitioner.

3.3. On 8.3.2019, the petitioner filed the application seeking extension of time to file leave to defend on the ground that the requisite documents were not made available. The suit was next listed on 1.4.2019 and then adjourned to 26.4.2019 but the documents were not provided by the respondent-plaintiff. It appears that respondent finally provided all the documents to the petitioner on 13.6.2019 and the suit proceedings came to be adjourned to 29.6.2019. On that day the petitioner submitted his leave to defend. The copy of the Rojkaam is produced by the petitioner in the compilation of the petition, also figures on record the list of documents bearing endorsement of receipt dated 13.6.2019.

3.4. The prayer of petitioner to grant the leave to defend came to be refused by the court resulting into the order impugned.

4. Learned advocate for the petitioner assailed the impugned order to submit that it is erroneous in law in as much as the fact has not been considered that the respondent filed application for summons for judgment on 23.1.2019 which was served on 28.2.2019 without necessary documents forming part of the plaint or application for summons for judgment. It was submitted that therefore the application filed by the petitioner seeking extension of time for filing leave to defend was allowed by the court but the proceedings were adjourned to 26.4.2019 and on that date also plaintiff did not provide the documents, which were provided only on 13.6.2019, as above. It was submitted that the court failed to considered that as per the order XXXVII Rule (2) (1) CPC, the documents were required to be supplied by the plaintiff on the date when the defendant enters appearance. Learned advocate