2025:BHC-AS:4 Amberkar/Anand IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO. 15949 OF 2023 Nilesh Suresh Kene & Ors. Petitioners (Orig. Defendant Nos. 1 .. to 4)

Versus Ashok Durga Pillay & Ors. .. Respondents ....................

 Mr. Vijay Killedar, Advocate, for Petitioners  Mr. Dnyaneshwar Deshmukh for Respondent Nos. 1 & 2a to 2c  Mr. Deepak C. Natu a/w Ms. Gayatri K. Soni i/by M/s. N. Deepak &

Co. for Respondent Nos. 5 & 6, Power of Attorney Holder of Respondent Nos. 7 to 13  Mr. Akshay Pai, Amicus Curiae ...................

CORAM : MILIND N. JADHAV, J.

DATE : JANUARY 02, 2025 J U D G M E N T

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:-

10.1 Respondent No. 1 and 2 – Plaintiffs filed Commercial Suit No. 02 of 2021 for declaration and damages in respect of properties bearing Survey/Hissa No. 52/11/1 and 52/2, having area admeasuring 3600 sq. mts. and 950 sq. mts. respectively. Suit is filed seeking entitlement of 45% share i. e. balance carpet area in “A” Wing Building constructed on the suit property i. e. 20,418 sq. ft. along with damages/compensation amounting to Rs. 3,66,85,000/- along with 24% interest to be recovered from Petitioners – Defendant Nos. 1 to 4.

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 ar