CAPITAL RETREAT PRIVATE LIMITED Vs. GOPAKUMAR

JUDGEMENT

(1.) The question that arise for consideration in this Original Petition is whether the defendant can forfeit the right to file a written statement, if the same is not filed within 120 days from the date of service of summons.

(2.) The petitioner is the defendant in C.S.No.73 of 2021 on the files of Principal Sub Court, Thiruvananthapuram. The respondent filed the suit under Sec. 26 read with Order 37 Rules 1 and 2 CPC read with Sec. 6 of the Commercial Courts Act, 2015 (for short 'the C.C.Act'), for the realisation of an amount of Rs.5,03,79,000.00 from the defendant, together with future interest at the rate of 18% p.a., from the date of institution of the suit till realisation. On receipt of summons, the petitioner entered appearance and sought leave of the court to defend the suit under Order 37 Rule 3(5) CPC as I.A.No.8 of 2021. By order dtd. 10/3/2022, leave was granted to the defendant, who was directed to file a written statement within 10 days. On 25/3/2022, the defendant sought time for filing a written statement, which was refused by the court and the defendant was set ex parte.

(3.) Meanwhile, the respondent/plaintiff challenged the order in I.A. No.8 of 2021 before this court, in O.P.(C) No.1234 of 2022 and the entire proceedings were stayed till the O.P. was dismissed on 25/7/2023. Immediately, a petition was filed by the petitioner to set aside the ex-parte order, along with a written statement and a petition to accept the same. An application to condone the delay in setting aside the ex-parte order, an application for setting aside the ex-parte order, and to accept the written statement were filed as I.A.Nos.15, 16 and 17 of 2023, respectively. The court below heard all the I.As together and dismissed as per Ext.P1 common order dtd. 16/2/2024. The petitioner has filed this Original Petition to set aside Ext.P1 and for a direction to the trial court to accept the written statement filed by the petitioner.