← Library
Madras High CourtCRP(MD)/1455/2019disposed of

Vigneshprabhu v. Parameshwari

2019-10-01Honourable Mr Justice Krishnan Ramasamy3 pages

BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED : 01.10.2019

CORAM:

THE HONOURABLE MR.JUSTICE KRISHNAN RAMASAMY Vigneshprabhu ... Petitioner/Petitioner/ Plaintiff Vs.

Parameshwari ... Respondent/Respondent/ Defendant PRAYER: This Civil Revision Petition is filed under Article 227 of Constitution of India to direct the learned Principal District Judge, Virudhunagar District at Srivilliputhur to number the unnumbered the IA.SR.NO.4657 of 2019 in O.S.No.78 of 2018, on file. For Petitioner : Mr.D.Rameshkumar

ORDER

This Civil Revision Petition is filed to direct the learned Principal District Judge, Virudhunagar District at Srivilliputhur to number the unnumbered the IA.SR.NO.4657 of 2019 in O.S.No.78 of 2018, on file.

2. The revision petitioner/plaintiff has filed a suit in O.S. No.78 of 2018 for recovery of amount of Rs.40,11,800/-with interest and cost, before the learned Principal District Judge, Srivilliputhur, Virudhunagar District. During the pendency of the suit, the plaintiff has filed a interlocutory application in unnumbered IA.SR.NO.4657 of 2019 in O.S.No.78 of 2018, under 8 Rule 1 & 10 read with Section 151 of Civil Procedure Code to not to permit the respondent from filing any written statement to the main suit and also written statement if any filed in the meanwhile will also be taken off from the record and the same may returned by the learned Principal District Judge, Srivilliputhur. However, the said I.A. was returned stating that written statement already filed. Aggrieved over the same, the instant Civil Revision Petition is filed.

3. According to the learned counsel appearing for the revision petitioner, as per Order 8 Rule 1 and 10 of Civil Procedure Code, the defendant has not taken any steps to file a written statement within 120 days from the date of filing as per the amended Proviso in Order 8, Rule 1. He also relied upon the Judgment reported in 2019(2) CTC 294, SCG Contracts India Pvt. Ltd. Vs. K.S. Chamankar 1/3

infrastructure Pvt. Ltd and Others, wherein the Court held that if the written statement is not filed within 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. Therefore, he contended that the Court below should not have rejected the application, but on the other hand should have numbered the application and pass an order on merits.

4. On perusal of the aforesaid order 8 Rule 1 and 10 of CPC.,and amended proviso Order 8, Rule 1 of CPC., it appears that the said mandated proviso is applicable only for the commercial disputes. The Hon'ble Supreme Court has also held that by referring the mandated proviso and categorically held that the factum of the said proviso, the rights of filing written statement forfeited if the parties to the commercial dispute has failed to file written statement within 120 days from the date of service of summons.

5. Admittedly, the present suit was filed in the year 2018 and summons was served on 30.8.2018. But, as on date of filing the aforesaid interlocutory application, the defendant has not filed any written statement even after the expiry of time from the date of service of summons. Now the question is to be decided is that whether the present suit is a commercial suit and the present dispute requires to be decided by the Commercial Court?.

6. According to the revision petitioner, he has borrowed a sum of Rs. 40,11,800/-, during the ordinary course of business for developing his business. It is necessary to note that the whether the plaintiff is a financier to lent money as defined Section 2(1) (g)(1) of the Commercial Act. Obviously, the plaintiff has not filed any proof with regard to carry on the business of financial activities and he has admitted the fact that he has not a money lender and he has also not a financier, obviously, even opposing the present dispute is not a commercial dispute. The concerned District Court also not redesignated as Commercial Court and accordingly, the Court below has rightly rejected the application filed by the revision petitioner to return the written statement filed by the defendant. This Court does not find any infirmity in the order passed by the Court below.

7. Further, as per Judicial Notification No.C-5 CAS/2007, Tamil Nadu (Case Flow Management in Subordinate Courts), Rules, 2007, the money suit would be disposed of within a period of 9 months. Hence, the petitioner is pleased before this Court for issuance of a direction to the Court below for the disposal of the suit at the earliest point of time.

8. Considering the facts and circumstances of the case and in view of the Judicial Notification and also the submission made by the learned counsel appearing for the petitioner, the suit would be 2/3

disposed of within a period 9 months from the date of filing, however, the same is pending for more than 15 months. Therefore, this Court is inclined to issue a direction to the Court below to dispose of the suit within a time frame.

9. Accordingly, while upholding the return of written statement by the Court below, the learned Principal District Judge, Srivilliputhur, is hereby directed to dispose of the suit in O.S.No. 78 of 2018, within a period of four months, from the date of receipt of a copy of this order.

10. With the above observations, the Civil Revision Petition is disposed off. No Costs.

Sd/- Assistant Registrar(CS-I) // True Copy // Sub Assistant Registrar(CS) ksa To 1.The Principal District Judge, Srivilliputhur, Virudhunagar District.

+1CC TO MR.D.RAMESHKUMAR, Advocate Sr. No. 90936 01.10.2019 SGS(CO) TR(26.11.2019)3P 3C 3/3