ORAL ORDER

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

Heard the learned counsel for the petitioner and perused the record.

2. This petition under Article 227 of the Constitution of India invoking the supervisory jurisdiction of this Court has been filed challenging the judgment and order dated 05.01.2023 passed by the learned Judge, Commercial Court, City Civil Court, Ahmedabad in rejecting the application Exh.18 filed by the defendant-the petitioner herein for condonation of delay in filling the reply (written statement) in the Commercial Civil Suit No. 1403 of 2021.

3. The order impugned records that the Commercial Suit is a summary suit filed under Order XXXVII Rule 3 of the Code of Civil Procedure. As per the procedure prescribed under Order XXXVII, the defendant was required to file appearance within a period of ten days from the date of receipt of the summon. The defendant-namely the petitioner herein was served with the summon on 06.12.2019 and put in appearace on 02.12.2019 before the Court when he filed an application seeking time to engage a lawyer, which was duly allowed. The advocate engaged by the defendant filed his vakalatnama on 01.01.2020 and thereafter, the application Exh.18 for condonation of delay in filling the written statement was filed on 17.06.2021.

4. It was, thus, noted that the defendant had been represented by the lawyer engaged by him who had filed vakalatnama on 01.01.2020, i.e. about 56 days after service of summons. The appearance put in by the defendant was itself beyond the period prescribed in Order XXXVII Rule 3, CPC.. The contention of the learned advocate appearing for the defendant that the defendant had put in appearance on 02.12.2019 and hence suit cannot be dismissed, has been rejected, noticing that even if the date 02.12.2019 is considered to be date of filling of an appearance on behalf of the defendant, no application for condonation of delay had been filed at that point of time.

4.1 These findings returned by the Commercial Court in rejecting the application seeking condonation of delay has been challenged on the ground that due to onset of Covid-19 pandemic, the Apex Court in Re: Cognisance for Extension of Limitation extended limitation in filling petitions/applications/suits/appeals/all other proceedings prescribed under the general law of limitation as also the special laws (both Central and State) uptill 2022. The submission is that the application seeking condonation of delay was required to be allowed by the Commercial Court.

5. At the outset, we may note that this argument seems to have been taken for the first time in the present petition and has not been agitated before the Commercial Court, inasmuch as, there is no whisper about the submission made on behalf of the defendant before it.

5.1 The judgment and order dated 05.01.2023 cannot be faulted for non-consideration of this submission. Moreover, the submission has been taken that the ground of extension of time by the Apex Court due to onset of Covid-19 had been taken in the review petition, which has been rejected by the Judge, Commercial Court by the judgment and order dated 16th March, 2024 in the review application preferred by the petitioner/defendant.

6. Suffice it to note that the plea of the petitioner/defendant to condone the delay in filling the written statement in a summary suit, is misconceived, inasmuch as, summons were served upon the defendant on 06.11.2019, at the time when no one knew about the Covid-19. For the first time, Covid-19 virus presence was felt in India in the month of March, 2020, when the first lockdown was declared on 23.03.2023.

7. As noted hereinabove, the learned advocate engaged by the petitioner/defendant had filed vakalatnama in the summary suit on 01.01.2020 without filing any reply. No application for condonation of delay in filing the written statement was filed. The petitioner took almost one year in filling the application, which has been rejected vide order d