Page No.# 1/7 GAHC010100982025 THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH) Case No. : CRP(IO)/172/2025 M/S SELECTION SHOES AND ANR A PROPRIETARY BUSINESS ESTABLISHMENT SITUATED AT MAIN ROAD, GOLAGHAT TOWN, P.O. AND DIST- GOLAGHAT, ASSAM, PIN-785621, REPRESENTED BY ITS PROPRIETOR, RAJU KARMAKAR 2: RAJU KARMAKAR PROPRIETOR M/S SELECTION SHOES S/O SRI BIJOY KARMAKAR R/O WARD NO. 5 GOLAGHAT TOWN P.O. AND DIST- GOLAGHAT ASSAM PIN-78562 VERSUS M/S A.P. TRADES AND COMMERCE AND 2 ORS. A REGISTERED PARTNERSHIP FIRM UNDER THE PARTNERSHIP ACT, 1932, HAVING ITS PRINCIPAL PLACE OF BUSINESS AT 402, RAM KUMAR PLAZA, 4TH FLOOR, CHATRIBARI ROAD, GUWAHATI, DIST- KAMRUP (M), ASSAM, PIN-781001, CONSTITUTED WITH ITS PARTNERS, VIZ. PRABHAKAR TIWARI AND SMTI SMITA TIWARI 2:PRABHAKAR TIWARI S/O LATE DHELA TIWARI PARTNER OF M/S A.P. TRADE AND COMMERCE SITUATED AT 402 RAM KUMAR PLAZA 4TH FLOOR CHATRIBARI ROAD GUWAHATI DIST- KAMRUP (M) ASSAM PIN-781001 Page No.# 2/7 3:SMTI SMITA TIWARI W/O SHRI PRABHAKAR TIWARI PARTNER OF M/S A.P. TRADE AND COMMERCE SITUATED AT 402 RAM KUMAR PLAZA 4TH FLOOR CHATRIBARI ROAD GUWAHATI DIST- KAMRUP (M) ASSAM PIN-78100 Advocate for the Petitioner : MR. M DUTTA, S DAS Advocate for the Respondent : MR H MAURYA, MR. S K BHATTACHARYYA BEFORE HONOURABLE MR. JUSTICE MRIDUL KUMAR KALITA ORDER Date : 14.10.2025 1. Heard Mr. M. Dutta, learned counsel for the petitioners. Also heard Mr. H. Maurya, learned counsel appearing for all the respondents. 2. This application under Article 227 of the Constitution of India has been filed by the petitioners impugning the impugning the order dated 21.02.2025 passed in Commercial Suit No. 13/2022 by the Court of learned Civil Judge (Senior Division) No. 3, Kamrup(M). 3. By this said order, the Trial Court rejected the prayer of the petitioners to take the written statement which was filed on 29.11.2024 on record mainly on the ground that same was filed beyond the outer limit of the time of 120 days prescribed in Order 5 Rule 1 of the Code of Civil Procedure. 4. The learned counsel for the petitioner has submitted that initially the Commercial Suit No. 13/2022 was registered as a Money Suit. However, later on Page No.# 3/7 it was converted into Commercial Suit. He further submits that though the summons were received in the aforesaid case by the present petitioners (defendants in the aforesaid Commercial Suit). However, it was not accompanied with the documents annexed along with the plaint, therefore, on 26.09.2023, the present petitioner filed an application before the Trial Court for directing the plaintiff (respondents) in this case to furnish the documents annexed along with the plaint. 5. The learned counsel for the petitioners submits that though the Court directed the plaintiffs to furnish the documents to the present petitioners, however, the plaintiffs submitted the documents in the Court only on 30.05.2024. The learned counsel for the petitioners further submits that the aforesaid commercial case was fixed before the Trial Court on 19.09.2024. He submits that on the said date due to wrong recording of the dates in the diary of the counsel of the petitioners, the learned counsel for the petitioners could not appear before the Trial Court on 19.09.2024. Accordingly, Trial Court directed the matter to proceed ex-parte against the present petitioners and fixed the matter on 29.11.2024. 6. The learned counsel for the petitioners submits that he had recorded the next day in his diary as 25.09.2024 and he came to know that the case was already posted on 29.11.2024 for ex-parte hearing. The learned counsel for the petitioners submits that on 29.11.2024, the petitioners had filed an application under Order 9 Rule 7 of the Code of Civil Procedure, 1908 along with the written statement with a prayer to set aside the ex-parte order dated 19.09.2024 and also to accept the written statement which was filed on the said date. However, by the impugned order passed on 21.02.2025, the Trial Court, though set aside Page No.# 4/7 the ex-parte order, did not allow the written statement filed by the petitioners to be taken on record as the same was filed beyond the outer limit of 120 days prescribed by Order 5 Rule 1 of the Code of Civil Procedure, 1908. 7. The learned counsel for the petitioners has submitted that as the plaintiff had furnished the documents, which were annexed with the plaint, before the Court only on 30.05.2024, the outer limit of filing written statement i.e., 120 days would have lapsed only on 27.09.2024. He, however, submits that the Trial Court on 19.09.2024 fix the next date on 29.11.2024 thereby depriving the petitioners with some additional days which he would have got had the case been listed again on 27.09.2024 instead of 29.11.2024. 8. The learned counsel for the petitioners has submitted that as the outer limit of 120 days would have expired on 27.09.2024, the Trial Court ought to have fixed the next date after 19.09.2024 on 27.09.2024. 9. The learned counsel for the petitioners submits that the Trial Court has rightly set aside the ex-parte order passed on 19.09.2024. However, he submits that it erred in not taking the written statement filed by the petitioners on record by ignoring the fact that the outer time limit of 120 days would have expired on 27.09.2024, however, the case was fixed on 29.11.2024. He submits that the petitioners would be highly prejudiced if there written statement filed by them is not taken on record. 10. On the other hand, the learned counsel for the respondents has vehemently opposed the prayer of the petitioners on the ground that suit in question being a commercial suit, the statutory prescription clearly provides the outer limit of 120 days which was within the knowledge of the petitioners and, Page No.# 5/7 therefore, the Trial Court by passing the impugned order has rightly rejected the prayer for taking written statements filed by the petitioners on records. 11. The learned counsel for the respondents has also submitted that even if the submissions made by learned counsel for the petitioners is accepted to be true, still the date recorded by him in his diary, i.e., 25.09.2024 was within the outer limit of 120 days for filing written statement and on that date, he could have filed an application before the Trial Court for accepting his written statement. However, same was not done and, therefore, he submits that the Trial Court has correctly rejected the prayer for accepting the written statement. 12. I have considered the submissions made by the learned counsel for both sides and have gone through the materials available on record. 13. The special amendment brought, in respect of Commercial Suits, to Order 5 Rule 1 of CPC clearly indicates that the time limit for filing written statement would normally be 30 days. However, for reasons recorded in writing and on payment of such costs as the Court deems fit, the defendant may, in a commercial suit, be allowed to file written statement within 120 days from the date of service of summons. It also clearly mandates that on expiry of 120 days from the date of service of summons, the defendant shall forfeit the right to file the written statement and the Court shall not allow the written statement to be taken on record. 14. In the instant case, it appears that in spite of the directions of the Trial Court passed on 26.09.2023 to furnish the documents annexed with the plaint to the petitioners, same was done after a lapse of eight months by the respondents which has caused delay in progress of the aforesaid commercial Page No.# 6/7 suit. It also appears that the summons served on the petitioner were not accompanied with the documents which were annexed along with the plaint, therefore, the date of effective service of summons for the purpose of filing of the written statement may be regarded as 30.05.2024 in this case, i.e., the date when the documents annexed along with the plaint were furnished in pursuant to the direction of the Trial Court. It is also a fact that the period of 120 days from the date of furnishing of the documents, i.e., 30.05.2024 would have lapsed only on 27.09.2024. However, the Trial Court had fixed the Commercial Suit on 29.09.2024 i.e., 8 days prior to the lapse of the outer limit of 120 days and the next date was fixed again on 29.11.2024, which is beyond the period of 120 days prescribed by the law. 15. Though, the Court cannot be held to be on the wrong side by fixing such a date beyond the period of 120 days, but it has certainly deprived the petitioners of additional 8 days for filing the written statement within the outer limit of 120 days. This Court also agrees with the submissions made by the learned counsel for the respondents that as the outer limit of 120 days prescribed by the law was known to the petitioners, they could have approached the Court on any day after 19.09.2024 and before 27.09.2024 to file their written statement, however, as same was not done, the Trial Court cannot be held to have erred in rejecting to take the written statement filed by them on record. 16. In the instant case, had the Trial Court fixed the next date on 27.09.2024 instead of 29.11.2024, the petitioners could have filed their written statement within the prescribed time. It is also to be taken into consideration that this aspect was not taken into consideration by the Trial Court while passing Page No.# 7/7 the impugned order, though, it has allowed the petition filed under Order 9 Rule 7 for setting aside the ex-parte order dated 19.09.2024. 17. This Court is of the considered opinion that as the stakes in the commercial suit is approximately to the tune of Rs.8,00,000/- (Rupees Eight Lakh), the Trial Court could have considered the fact that after 19.09.2024 it fixed the commercial suit on 29.11.2024 i.e., beyond the period of 120 days and thereby the petitioners were deprived of additional eight days of the outer limit for filing the written statement in pursuant to the provisions under Order 5 Rule 1 of the Code of Civil Procedure. 18. Though, apparently there appears to be no error in the order impugned in this revision petition, however, as the Trial Court has set aside the ex-parte order dated 19.09.2024 and as the written statement has already been filed by the petitioners, it is in the considered opinion of this Court, the purpose of justice would be served if the written statement has taken on record subject to payment of cost of Rs.20,000/- (Rupees Twenty Thousand) to the respondents by the petitioners in this case before the Trial Court. The said cost shall be deposited by the present petitioners before the Trial Court on the next date fixed in the Commercial Suit No. 13/2022. The deposit of cost shall be a condition precedent for taking the written statement on record by the Trial Court. If such cost is deposited, same shall be disbursed to the plaintiffs by the Trial Court. 19. This CRP is accordingly disposed of. JUDGE Comparing Assistant