IN THE HIGH COURT OF GUJARAT AT AHMEDABAD R/SPECIAL CIVIL APPLICATION NO. 16159 of 2025 ==========================================================

MAGOTTEAUX INDUSTRIES PRIVATE LIMITED & ANR.

Versus SHREE CEMENT LIMITED & ORS.

==========================================================

Appearance:

GARGI R VYAS(7983) for the Petitioner(s) No. 1,2 ========================================================== CORAM:HONOURABLE THE CHIEF JUSTICE MRS. JUSTICE SUNITA AGARWAL and HONOURABLE MR.JUSTICE D.N.RAY Date : 01/12/2025

ORAL ORDER

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

1. The amendments are formal in nature, the draft amendments are hereby allowed. Let the necessary incorporation be made at the relevant places during the course of the day.

2. Having heard the learned counsel for the petitioner and perused the record, it seems that the petitioners herein objected to the act of the Court in accepting the written statement filed by the defendant on record after expiry of period of 120 days from the date of service of summons upon them. The contention of the learned counsel for the petitioners is that within the scheme of Order VIII Rule 1 of Civil Procedure Code, in view of the proviso therein, the Commercial Court had no jurisdiction to entertain the application for filing of the written statement by the defendant after expiry of the period provided therein. The submission is that as the forfeiture clause comes into operation after the period of 120 days, the Court had no jurisdiction to allow the written statement to be taken on record. It was the duty of the Court to adhere to the provisions of the proviso to Order VIII Rule 1 of the Code of Civil Procedure, 1908 and the question as to whether the plaintiff had objected to filing of the written statement beyond the period prescribed therein would be immaterial.

3. By placing the order-sheet of the suit proceedings from the record, it was sought to be demonstrated by the learned counsel for the petitioners that on 16.11.2022, the next date fixed in the matter was 29.12.2022, but there is an interpolation in the order-sheet of the next date being 06.01.2023. On 29.12.2022, however, on an application filed by the defendant, the case was taken on board and the application seeking to file a written statement was accepted on record, that too in the absence of the plaintiff.

4. Even on the next dates fixed in the matter, the plaintiff was not aware of the filing of the written statement by the defendant, inasmuch as, the copy of the written statement was served upon the plaintiffs’ counsel only on 27.11.2024. Much prior to the said date, the plaintiff had filed an application dated 20.11.2023 for closing of the opportunity of the defendant to file the written statement which was kept pending for long and has been decided by the order impugned dated 20.02.2024.

5. From the copy of the order-sheet, it was sought to be demonstrated by the learned counsel for the plaintiff that even the plaintiff’s lawyer had stopped appearing in the matter after February, 2025, when the order impugned was passed and the petitioners came to know of the factum of filing of the written statement by the defendant and the proceedings in the suit, only in the Month of December, 2024. Various assertions have been made by the petitioners about the efforts made by the petitioners for procuring the certified copy of the order impugned, the engagement of another lawyer to seek advice and the decision taken to file the present petition.

6. It is contented that the suit is at the stage of hearing of Order VII Rule 11 application and the defendant’s lawyer is not appearing as on date. This assertion made by the learned counsel for the petitioners is substantiated from the order- sheet of the month of November, 2025. The next date fixed for hearing of Order VII Rule 11 application is reported as

09.12.2025.

7. Taking note of the above, we proceed to entertain the present petition. Let a notice be issued to th