IN THE HIGH COURT OF GUJARAT AT AHMEDABAD R/SPECIAL CIVIL APPLICATION NO. 6780 of 2023 ==========================================================

M/S SHRINATH FABRICS PROPRIETOR MANISH RADHESHYAM SHAH Versus M/S BRIGHTSTAR SYNTAX PRIVATE LTD ==========================================================

Appearance:

MR LAKSHIT V PATEL(10734) for the Petitioner(s) No. 1 MR ASHISH H SHAH(2142) for the Respondent(s) No. 1 ========================================================== CORAM:HONOURABLE MR. JUSTICE ASHUTOSH SHASTRI and HONOURABLE MR. JUSTICE J. C. DOSHI Date : 03/05/2023

ORAL ORDER

(PER : HONOURABLE MR. JUSTICE J. C. DOSHI)

1. Heard learned advocates for the respective parties.

2. By way of present petition under Article 227 of the Constitution of India, the petitioner – M/s. Shrinath Fabrics challenges the order passed below Exh.29 in Commercial Civil Suit No.297 of 2020 by the learned Commercial Court, Ahmedabad whereby the purshis filed by the present petitioner for filing leave to defend has been denied inter-alia on the ground that the petitioner has not asked for condonation of delay in filing leave to defend application in Commercial Civil Suit No.297 of 2020.

3. The respondent – M/s. Brightstar Syntex Private Ltd. has preferred Commercial Civil Suit No.540 of 2020 which was re- numbered as Commercial Civil Suit No.297 of 2020 under the provision of Order 37 of Civil Procedure Code seeking recovery of Rs.8,10,222/- from the petitioner. The notice of suit was served to the present petitioner. Thereafter, the respondent has filed summons for judgment which was served upon the present petitioner on 22.09.2022. However, the present petitioner did not file leave to defend in view of Order 37 Rule 3 within 10 days from the service of summons for judgment which expired on 02.10.2022. But filed leave to defend after delay of 170 days and that too without seeking condonation of delay by filing purshish to take leave to defend on record. Learned Commercial Court, Ahmedabad on passing the order below Exh.29 refused to take leave to defend on record as the petitioner had not sought for condonation of delay. Hence, this petition.

4. During argument canvassed in the present petition, learned advocate Mr. Ashish Shah appearing for the respondent fairly submitted that the petitioner should be given opportunity to leave to defend. He argued that since the petitioner has not filed application seeking condonation of delay, no option was left for the learned Commercial Court to condone delay and take leave to defend on record. Learned advocate Mr. Ashish Shah having submitted so argued that necessary order be passed in the interest of justice.

5. On going through the purshish at Exh.29 produced in Commercial Civil Suit, it appears that the petitioner has not forwarded or pleaded any reason why he has filed leave to defend belatedly and what was the reason which prevented the present petitioner from filing leave to defend 170 days belatedly after filing of summons for judgment. Learned advocate Mr. Lakshit Patel for the petitioner fairly submitted to this Court that before learned Trial Court no reasons whatsoever has been assigned for putting the leave to defend in Commercial Civil Suit after expiry of 170 days. He submits that technicalities should not be allowed to override principle of substantial justice and therefore, he submits to overlook technicalities and further submits to pass necessary order.

6. It is admitted position that procedural law are hand maid to the substantial justice. Principle of substantial justice must be given vigor to decide actual controversy between the parties. Principle of natural justice also demands that every party to the lis must be afforded fair, reasonable and sufficient opportunity to defend allegations against them.

7. In the present case, it is admitted position that though there was no leave to defend on record, till purshish filed below Exh.29, learned Commercial Court has not proceeded the suit to pass j