ORAL ORDER

(PER : HONOURABLE THE CHIEF JUSTICE MRS. JUSTICE SUNITA AGARWAL)

This petition is directed against the judgment and order dated

14.02.2023 passed by the Commercial Court at City Civil Court, Ahmedabad, in Commercial Trade Mark No. 29 of 2019, whereby right of the defendant/petitioner herein to file the written statement has been closed.

2. The order impugned records that the defendant had put in appearance before the Commercial Court on 31.05.2019, but since then, the learned advocate for the defendant had not filed any written statement. After expiry of the statutory period of 30 days, it was within the jurisdiction of the Commercial Court to extend the period for filling the written statement upto 120 days, that too by giving reasons for the same. However, the petitioner did not file the written statement upto 120 days. It is further noted that in Commercial Suits, it is mandatory to file written statement within 120 days from the date of service of the summons upon the defendant. The trial court has relied upon the judgment of the Apex Court in M/s. SCG Contacts India Private Limited vs. K.S.Chamankar Infrastructure Pvt. Ltd. & Ors. [(2019) 12 SCC 210], wherein by reading the proviso added to O. VIII R.1 by amendment brought in w.e.f. 23.10.2015, it was noted that the said proviso prescribes the maximum time period which can be allowed in a suit in respect of a commercial dispute. The provision prescribes for forfeiture of the right of the defendant to file written statement. As a consequence of forfeiting the right to file written statement, the Commercial Court shall not allow extension in time invoking Section 151 of the Code of Civil Procedure, 1960. This reasoning given by the Commercial Court in closing the right of the defendant/petitioner herein to file written statement after expiry of period of 120 days, cannot be said to suffer from any error of law.

3. The submission of the learned counsel for the petitioner that the time period provided in Order VIII Rule 1, CPC for filling written statement, is directory and not mandatory based on the decision of the Apex Court in Sambhaji and Others vs. Gangabai and Others [(2008) 17 SCC 117) is in ignorance of the correct legal position. In a recent order of the Apex Court dated 03.05.2024 in Special Leave to Appeal (C) No. 9675 of 2024 arising out of a judgment and order dated 28.03.2024 in Special Civil Application No. 5024 of 2024 passed by this Court, it has clarified that in view of the proviso to Order V Rule 1 and Order VIII Rule 1 of the Code of Civil Procedure, 1908, the Commercial Courts cannot condone the delay in filling the written statement beyond the period of 120 days from the date of service of summons. The said mandate must be adhered to and is binding.

4. In view of the above, we do not find any good ground to invoke extraordinary supervisory jurisdiction under Article 227 of the Constitution of India to find fault with the impugned order passed by the Commercial Court.

5. The petition is dismissed being devoid of merits.

(SUNITA AGARWAL, CJ )

(PRANAV TRIVEDI,J)

C.M. JOSHI