Point of Law: Section 15 of Act, 2015 deals with transfer of pending cases.

JUDGMENT :

1. Heard Mr. S. Deori, learned counsel for the petitioner. Also heard Ms. S. Das, learned counsel for the respondents.

2. The present revision petition is filed assailing an order dated 03.12.2022 passed by the learned Court of Civil Judge No. 2, Kamrup (M) at Guwahati in M.S. No. 92/2021, whereby the application filed by the defendant under Order VII Rule 11 of C.P.C. 1908, was rejected on the ground that the defendants have not taken any steps to file written statement inspite of the fact that they have entered appearance on 17.01.2022 and accordingly directed the suit shall proceed ex-parte.

3. The respondent/plaintiff filed a money being M.S. No. 92/2021 claiming recovery an amount of Rs. 1,52,00,000/-(one Crore Fifty Two Lakhs Only) from the defendants. The respondent entered appearance in the suit on 17.01.2022 and thereafter, filed an application under Order 7 Rule 11 of the CPC, 1908 for rejection of the plaint, as according to the defendants the dispute redressal is covered by an agreement which includes an arbitration clause. However, the defendants failed to produce any such agreement. Accordingly, the learned trial Court below under its order impugned dated 03.12.2022, dismissed the aforesaid application and also directed that suit should proceed ex-parte as the defendants have in the meantime has not filed the written statement.

4. The impugned order whereby the prayer for rejection of plaint was dismissed is not under challenged, what is under challenge is that the direction to proceed the suit ex-parte.

5. The petitioners contends that he may be granted a chance to file written statement inasmuch as the written statement was not filed for the pendency of the application under Order VII Rule 11 of the CPC, 1908 and therefore, on the rejection of the aforesaid petition, the learned Court below ought to have given a chance to file the written statement.

6. Countering such argument, Ms. Das, learned counsel for the respondent/plaintiff submits that the learned trial Court is not within its competence and jurisdiction to extend time maximum beyond 120 days from the date of receipt of summons by the defendants for the reason that the suit was a commercial suit and the Hon’ble Apex Court in the case of M/s Scg Contracts India Pvt. Ltd. –Vs-Ks Chamankar Infrastructure Pvt. Ltd reported in AIR 2019 SC 2691 held that in terms of Order V Rule 1 (1) of the CPC, 1908, the period of 120 days as mandated cannot be extended by a Court.

7. Ms. Das, learned counsel also contends that the suit in question was a commercial suit in its nature, value and subject matter. The suit was filed on 23.11.2021 and the Commercial Courts Act, 2015 came into existence from 23.10.2015. A notification under Section 3 of the Commercial Courts Act, 2015 (hereinafter referred to as Act, 2015) was issued for the State of Assam on 13.02.2019. Therefore, according to Ms. Das, learned counsel on the date of filing of the suit, the suit was, for all meaning and purport, a commercial suit. Therefore, in view of the decision in M/s Scg (supra), this Court in exercise of power under Article 227 of the Constitution of India may not extend the time of filing written statement beyond the period of 120 days.

8. Countering such argument, Mr. Deori, learned counsel for the petitioner submits that though the suit was filed on 23.11.2021, however, the mandatory provision of Order V Rule 1 (1) of the CPC, 1908 regarding the issuance of notice and putting defendants under notice that suit is a commercial suit was not issued and therefore, the petitioners cannot be deprived of their rights to file written statement taking the recourse to the provision of the Act, 2015.

9. Mr. Deori, learned counsel further contends that the procedure as required under Section 12A read with 3 of the Commercial Courts (Pre-Institution Mediation and Settlement) Rules, 2018 has also not been followed. The learned counsel for the petitioners further submits that as none of the provisions