The main legal point established is that the doctrine of relation back can be applied to deem a written statement as filed within the limitation period, considering the circumstances preventing its timely filing.

JUDGMENT :

N.V. ANJARIA, J.

1. The questions that arise, in the peculiar facts and circumstances of the case, is whether the written statement by respondent-defendant in the Commercial Suit instituted by the petitioner, could be treated to have been filed within permissible period of 120 days. What could be the effect if the written statement available to be filed within the stipulated period could no be filed for the reason that the suit proceedings stood adjourned on account of absence of learned advocate for the plaintiff, even-though, on that day, the written statement was available and was proposed to be filed.

2. The challenge in this Special Civil Application by the petitioner-original plaintiff is addressed to order dated 22.11.2019 below Exh.12 passed by learned 2nd Additional Senior Civil Judge, Surat the Commercial Court, in Commercial Civil Suit No. 17 of 2019. Thereby the commercial court below rejected the prayer of the plaintiff to forfeit the right of the defendant to file written statement and to pass decree in plaintiff’s favor. The court permitted the defendant to file written statement.

3. The facts inter alia are that the respondent Surat Municipal Corporation invited tender in October, 2009 for the purpose of work of development of BRTS corridor from Dumus esort Club to Kharvanagar. The petitioner herein came to be awarded the project work at the estimated cost of Rs.86,70,00,000/-.

3.1 On 3.7.2019 the petitioner filed Commercial Civil Suit No. 70 of 2019 against the present respondent Corporationoriginal defendant for recovery of Rs.14,63,30, 345/- for damages and loss of property before the Commercial Court at Vadodara. The said commercial suit came to be transferred to the court of learned Additional Senior Civil Judge, Surat.

3.2 The court issued summons to the respondent- defendant on 10.7.2019. The returnable date was 30.7.2019. The summons was served upon the defendant Surat Municipal Corporation on 12.7.2019. On 30.7.2019, which was the returnable date, the suit was adjourned to 14.9.2019 since learned Judge was on leave. On the said date, learned advocate for the defendant Corporation appeared and filed Vakalatnama and also submitted application praying for time to file the written statement.

3.3 The case was adjourned to 19.10.2019 The defendant’s case was that upto that date it could not file written statement for want of information, instructions and documents which were required to be collected from the departments of the Corporation. Adjournment application was filed seeking further time, which was rejected by the court. The stage for filing written statement was closed. The case stood adjourned to 8.11.2019.

3.4 It is not in dispute that the written statement of the defendant Corporation was notarized on 26.10.2019, when the proceedings of the suit were posted on 8.11.2019. The defendant filed application Exh.12 in which it was prayed for reopening of right to file the written statement and condone the delay. The limitation for filing written statement had started to run from 13.7.2019 as the summons was served, as stated above, on 12.7.2019. The day of 8.11.2019 was 119th day, reckoned from the date of service of summons. As on 8.11.2019, learned advocate for the plaintiff was absent therefore the court below adjourned the application Exh.12 to 22.11.2019 for reply and hearing of application.

3.5 On 21.12.2019, application by plaintiff at Exh.13 was moved seeking to forfeit the right of the defendant to file written statement and for pronouncement of judgment against the respondent on the ground that the defendant- respondent had not filed the written statement. According to the defendant, the total period of 120 days available for filing written statement had expired on 9.11.2019, which being a non-working Saturday, the written statement was required to be filed on or before 11.11.2019 and that it had become barred by limitation. It was the case that the court below could not have allowed the appl