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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
MILIND N. JADHAV, J.
Nilesh Suresh Kene and Others – Appellants
Versus
Ashok Durga Pillay and Others – Respondents
W.P. No. 15949 of 2023
Decided On : 02-01-2025
(A) Commercial Courts Act, 2015 - Section 6A - Writ Petition challenging the condonation of delay in filing Written Statement to Counter-claim - The District Judge condoned delay beyond the prescribed period of 120 days, which was contested by Defendants - Court held that service of Counter-claim must comply with statutory provisions, and the limitation period did not commence due to improper service. (Paras 22, 21)
(B) Limitation - The court found that the time limit for filing a Written Statement to Counter-claim is governed by the same rules applicable to plaints - The impugned order condoning delay was upheld as the limitation had not commenced. (Paras 21, 22)
Facts of the case:
The Plaintiffs filed a Commercial Suit for declaration and damages, and Defendants filed a Counter-claim. The Plaintiffs and supporting Defendants filed their Written Statements after the statutory period, which was condoned by the Court, leading to the current challenge. (Paras 10.1, 10.8)
Findings of Court:
The Court upheld the impugned order condoning delay as the service of Counter-claim was not properly executed, thus the limitation period did not begin. (Paras 21, 22)
Issues: Whether the court had the power to condone delay in filing Written Statement beyond 120 days and the proper service of Counter-claim. (Paras 10, 21)
Ratio Decidendi: The court ruled that the Counter-claim must be treated as a plaint, and all related rules must be followed for the limitation period to commence, which was not done in this case. (Paras 21, 22)
Result: Writ Petition dismissed.
JUDGMENT :
MILIND N. JADHAV, J.
1. Heard learned Advocates appearing for the parties.
2. Writ Petition is filed by Petitioners who are Original Defendant Nos. 1 to 4 challenging the impugned common Order dated 13.01.2023, passed below Exhibit “72” and “88A” by District Judge-2, Kalyan in Commercial Suit No. 02 of 2021. Parties are referred to as “Plaintiffs” and “Defendants” for convenience.
3. Application below Exhibit “72” is filed by Plaintiffs seeking condonation of delay in filling their Written Statement to the Counter-claim filed by Defendant Nos. 1 to 4 below Exhibit “63.”
4. Application below Exhibit “88A” is filed by Defendant Nos. 5 to 13 seeking condonation of delay in filing their Written Statement to the Counter-claim filed by Defendant Nos. 1 to 4 below Exhibit “63.”
5. Defendant Nos. 5 to 13 are supporting the Plaintiffs. Contesting Defendants are Defendant Nos. 1 to 4.
6. By the impugned Order dated 13.01.2013, delay in filing Written Statement to the Counter-claim is condoned with order of costs. Defendant Nos. 1 to 4 have challenged this Order allowing condonation of delay beyond the prescribed period of 120 days, this being a Commercial Suit.
7. Defendant Nos. 1 to 4 claim that Written Statement of Plaintiffs and Defendant Nos. 5 to 13 to the Counter-claim ought to have been filed within 30 days of service of the Counter-claim on them or at the highest within 90 days thereafter with leave of the Court.
8. Both Plaintiffs and Defendant Nos. 5 to 13 have filed their Written Statement after 142 and 155 days respectively from the date of service of Counter-claim on them. This delay is condoned by the Court. Defendant Nos. 1 to 4 are aggrieved and hence the challenge.
9. According to Defendant Nos. 1 to 4, since suit proceeding is a Commercial Suit, strict period of limitation of 120 days i.e. 30 days and the extended grace period of 90 days as prescribed under the Commercial Courts Act, 2015 would apply to Plaintiffs and Defendant Nos. 5 to 13 for filing their Written Statement to the Counter-claim filed by them. Defendant Nos. 1 to 4 would submit that condonation of delay beyond the said period of 120 days is not permissible in law.
10. By Order dated 26.06.2024, I appointed Mr. Akshay Pai as Amicus Curiae to assist the Court on the above issue and decide the question of power of Court to condone delay in filing Written Statement to Counter-claim in Commercial Suit proceeding beyond the period of 120 days. Before I advert to the submissions made by learned Advocates, following facts are relevant for consideration:
10.2 Defendant Nos. 1 to 4 appeared in the Commercial Suit and filed their Written Statement along with Counter-claim on 31.03.2022 below Exhibit “63.” They prayed in their Counter-claim that Plaintiffs and Defendant Nos. 5 to 13 are jointly and severally liable to return excess area admeasuring 5361.70 sq. ft. along with possession to them.
10.3 Counter-claim below Exhibit “63” is filed by Defendant Nos. 1 to 4 along with their Written Statement on 31.03.2022. Service of Counter-claim upon Plaintiffs and the Defendant Nos. 5 to 13 is made on 20.04.2022 and 10.06.2022, respectively. Plaintiffs and Defendant Nos. 5 to 13 did not file their Written Statement to the Counter-claim within 120 days from the date of service of Counter-claim on them.
10.4 In the meanwhile, Plaintiff No. 2 passed away on 09.05.2022, and his legal heirs were brought on record on 12.08.2022. On 20.08.2022, Application
The mandatory period of 120 days for filing Written Statements applies to Counter-claims, and improper service of the Counter-claim prevents the limitation period from commencing.
The mandatory period of 120 days for filing Written Statements applies to Counter-claims, and improper service of the Counter-claim prevents the limitation period from commencing.
The court clarified that there is no fixed time limit for filing additional written statements to counter-claims, and such filings can be made upon obtaining leave from the court.
The main legal point established in the judgment is the requirement for the defendant to file the written statement within the prescribed period, the consequences of failing to do so, and the applica....
The timeline for filing replies to counter claims under the Commercial Courts Act is strictly 120 days, and extensions must adhere to the provisions of the Civil Procedure Code.
The court affirmed that defendants lose the right to file a written statement if not submitted within the prescribed 120 days, highlighting the necessity of adhering to procedural timelines in commer....
The court holds that delays in filing additional written statements can be condoned under Rule 9 of Order VIII provided there is sufficient cause and no prejudice is caused to the opposing party.
The main legal point established in the judgment is that in commercial suits, the court does not have the power to condone the delay in filing the written statement beyond 120 days from the date of s....
Defendants must file a formal application to extend time for the written statement beyond thirty days, as failure to do so results in forfeiture of the right to file.
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