versus

1. Exemption allowed subject to all just exceptions. CM APPL. 19893/2023

2. The application stands disposed of.

3. The petitioners challenge the order dated 18.02.2022 passed in CS No. 124/2020 titled Suravi Bose vs. Mukesh Sharma & Anr, whereby an application filed under Order VIII Rule 1 read with Section 151 of the CM(M) 645/2023 & CM APP No. 19892/2023 (Stay) Code of Civil Procedure, 1908 (hereinafter as “CPC”) and read with Section 5 of the Limitation Act, 1963 seeking condonation of delay in filing the written statement, was dismissed.

4. Mr. K.K. Sharma, learned senior counsel appearing for the petitioners submits that the summons of the suit were issued on 06.03.2020 and upon service, the petitioners/defendants had put in their appearance on 19.03.2021. Mr. Sharma submits that on such appearance learned Trial Court had granted time to file the written statement within the stipulated period of time. Learned senior counsel submits that however, the petitioner filed its written statement only on 03.08.2021 without the supporting application seeking condonation of delay in filing the written statement.

5. However, Mr. Sharma, learned senior counsel submits that subsequently an application under Order VIII Rule 1 read with Section 5 of Limitation Act was filed before the learned Trial Court. Though, sufficient reasons were furnished for the delay which had occurred in filing the written statement beyond the period of 120 days as per the Code of Civil Procedure, however, the learned Trial Court did not appreciate the said reasons and dismissed the said application by way of the impugned order.

6. Learned senior counsel submits that the learned Trial Court had itself noticed the judgment of the Hon’ble Supreme Court in Suo Moto Writ Petition (C) No.3/2020 ‘In Re: Cognizance for Extension of Limitation’ whereby the Hon’ble Supreme Court had suspended the period of limitation commencing w.e.f. 15.03.2020 through till 28.02.2022. Learned senior counsel also submits that subsequently by way of the judgment of the Hon’ble Supreme Court in Prakash Corporates vs. Dee Vee Projects Limited reported as (2022) 5 SCC 112 further 90 days w.e.f. 01.03.2022 was also granted. Thus, Mr. Sharma, learned counsel submits that the filing of the written statement on 03.08.2021 could have been condoned by the learned Trial Court.

7. Mr. Sharma, learned senior counsel submits that despite the clear law laid down by the Hon’ble Supreme Court on the said subject, the learned Trial Court passed the impugned order and as such the impugned order is unsustainable in law.

8. Per Contra, Mr. Siddharth Dutta, learned counsel appearing for the respondent/plaintiff opposes the said submissions of learned senior counsel.

9. Mr. Dutta submits that it is an admitted case of the parties that that the written statement was filed beyond the stipulated period of 120 days. In fact, learned counsel submits that the learned Trial Court in the impugned order had categorically noted that the written statement was filed after 138 days from the date of appearance of the petitioners/defendants. Learned counsel submits that during the window period there was no order of the Hon’ble Supreme Court protecting litigants suspending the period of limitation.

10. On that basis, learned counsel submits that the impugned order is sustainable in law and the petitioners/defendants cannot be granted any liberty to file the written statement.

11. This Court has considered the rival contentions of the parties as also perused the impugned order placed on record.

12. At the outset, this Court observes that though the learned Trial Court considered the judgment of the Hon’ble Supreme Court in Suo Moto (supra), however, has completely overlooked the fact that subsequently by the order dated 08.03.2021 of the Hon’ble Supreme Court in the same writ petition, the period commencing from 15.03.2020 through atleast till 28.02.2022, the period of limitation was suspended in support of all petitions, applications, suits etc. so far as litigants are concerned. Having regard thereto, learned Trial Court appears to have overlooked the subsequent order passed by the Hon’ble Supreme Court which was binding.

13. In view of the aforesaid, this Court is of the considered opinion that the written statement, though having been filed beyond the prescribed period of 120 days, does get the benefit of suspension of limitation as per the judgment of the Hon’ble Supreme Court in Suo Moto (supra).

14. Thus, looking at it in any which way, the impugned order on that ground, becomes unsustainable in law. Accordingly, the impugned order is set aside and the written statement stated to have already been filed is directed to be taken on record.

15. The parties submit that the suit is now coming up for hearing on 27.04.2023.