The court upheld that the provisions for filing written statements are mandatory, and any delay beyond 120 days forfeits the right to file.

ORAL ORDER

(PER : HONOURABLE MR. JUSTICE PRANAV TRIVEDI)

1. The present petition is preferred challenging the order dated 8.7.2024 passed by the 4th Additional Senior Civil Judge and Additional Chief Judicial Magistrate, Surat (hereinafter referred to as 'the learned Court' for short) in an application below Exh-9 in Commercial Civil Suit No.90 of 2024.

2. The factual matrix leading to filing of the present writ petition is that the petitioner is in business of Textile in the name of 'Gatiswam Creation'. The petitioner purchased goods worth Rs.12,78,069/- from 'Vidhi Textile' (hereinafter referred to as 'the respondent' for short) for which invoices and challans were also issued. Subsequent to the business transaction, dispute arose between the petitioner and the respondent. In view of the same, respondent filed a Civil Suit before the learned Court which came to be numbered as Commercial Civil Suit No. 90 of 2024 for seeking recovery of amount of Rs.12,78,069/-. The suit was instituted after following procedure of Pre-litigation Mediation at District Legal Services Authority at Surat. Pursuant to filing of the suit, a summons came to be issued to the defendant i.e. present petitioner on 8.2.2024. The returnable date on the summons was 16.4.2024.

3. The summons came to be dispatched for service to the petitioner on 17.2.2024. On 4.3.2024, the summons came to be served upon the petitioner. Pursuant to the service of summons, the petitioner in person appeared before the learned Court on 16.4.2024 and asked for adjournment for filing written statement as well as to engage an advocate. In view of the adjournment sought by the petitioner, the next date in the Commercial Suit was given by the learned Court was 8.7.2024.

4. It is the case of the petitioner that he appeared through his lawyer on 8.7.2024 and filed his written statement. However, since written statement was filed beyond 120 days, there was a delay of 4 days in filing the written statement. In such situation, the petitioner preferred an application at Exh- 9 seeking condonation of delay of 4 days and also prayed to the learned Court to take on record his written statement. The learned Court vide order dated 8.7.2024 below Exh-9 rejected the application for condonation of delay of 4 days as well as denied to take on record the written statement on the ground that there is no provision in the Commercial Courts Act to condone the delay and take the written statement on record. Being aggrieved by the impugned order dated 8.7.2024 passed by the learned Court below Exh-9, present writ petition is preferred.

5. We have heard Mr. S.M. Kikani, learned advocate for the petitioner. Though notice has been issued, no one has appeared for the respondent.

6. Mr. S.M. Kikani, learned advocate for the petitioner has submitted that the learned Court has failed to consider that the petitioner appeared in person in Court on 16.4.2024 and had asked for adjournment for filing the written statement. Date given by the learned Court was 8.7.2024, which was beyond the period of 120 days. The petitioner being unaware of the intricacies of law or provision of 120 days for filing the written statement, had agreed to the date of 8.7.2024. On the date fixed i.e. 8.7.2024, the petitioner was ready with his written statement. However, as the date itself was beyond 120 days, he has also preferred application for condonation of delay of 4 day. Therefore, there were bonafides on the part of the petitioner. There was no intention to file written statement on delayed date. As the learned Court had given date beyond 120 days, the petitioner was not in a position to file his written statement. Therefore, the learned Court ought to have considered the delay condonation application of the pet