Defendants forfeiting their right to defend due to late filing may still retain the right to cross-examine witnesses, ensuring fairness in proceedings.

JUDGMENT :

Challenging the order of the Commercial Court, Coimbatore, dated 21.09.2024, made in I.A.No.5 of 2024 in C.O.S.No.62 of 2023, dismissing the application under Section 5 of the LIMITATION ACT to condone the delay of 157 days in filing an application to set aside the ex parte decree passed against the 2^nd petitioner, the present revision has been filed.

2. The suit has been originally filed by the respondent in February, 2021, as Commercial Suit before the Principal District Court, Coimbatore, for recovery of a sum of Rs.1,55,28,089/-. The 2^nd petitioner herein is the 2^nd defendant in the suit, representing the 1^st defendant Company. In fact, after establishment of the Commercial Court, the suit has been transferred to the Commercial Court on 14.03.2023. Prior to such transfer, the defendants had not filed written statement within 120 days as required under the Commercial Courts Act, 2015. However, they had filed written statement only in the month of November, 2021, i.e., beyond the period of 120 days as mandated under the Act. When the matter stood thus, the case has been transferred to the Commercial Court on 14.03.2023. Before the Commercial Court, as the defendants did not file their written statement, they were set ex parte on 27.07.2023 and ex parte evidence was recorded on 02.08.2023 and judgment was pronounced on 16.08.2023. Thereafter, the present application has been taken out by the petitioners to condone the delay of 157 days in filing the application to set aside the ex parte decree, contending inter alia that the 2^nd petitioner met with an accident and received a bullet injury accidentally and was admitted in Kovai Medical Centre on 04.12.2022 and discharged on 10.12.2022. Even thereafter, he was not in a position to appear before the Court physically. Therefore, there was a delay of 157 days in filing the application to set aside the ex parte decree. The said application has been dismissed by the trial Court. Challenging the same, the present revision has been filed.

3. Learned counsel appearing for the revision petitioners would fairly submit that, though the written statement was not filed within the period as mandated under the Commercial Courts Act, even then, the petitioners' right to participate in the trial cannot be taken away. In any event, the petitioners/defendants ought to have been given an opportunity to cross- examine the plaintiff, which has not been done in this case. Therefore, it is his contention that, though ex parte decree cannot be set aside as written statement has not been filed, the fact remains that the right of the petitioners to participate in the trial cannot be taken away. In respect of his submission, he has placed reliance on the judgment of the Hon'ble Apex Court in Ranjit Singh and another v. State of Uttarakhand and others reported in 2024 SCC OnLine SC 2932.

4. Whereas, the learned counsel for the respondent would submit that the reasons assigned in the petition to condone the delay of 157 days, cannot be accepted for the simple reason that, even at the relevant point of time, the 2^nd petitioner had appeared before the criminal Courts in the same campus and the said fact has been taken note of by the trial Court.

5. Heard the learned counsel on either side and perused the materials available on record.

6. It is pertinent to note that the suit itself was laid as a Commercial Suit and was pending before