Dismissed¶5

Mr. Alpesh Shah v. Mr. Ramnath P. Iyer

Bombay HC6 Feb 2025COMAO/1/2025

Case brief

AI extract

What is this about?

Condonation of delay; written statement; commercial suit; recovery of monies; Order VIII Rule 1 CPC proviso; Commercial Courts Act 2015 Section 16; 120 days limitation; forfeiture of right to file written statement; writ of summons; Bombay City Civil Court Borivali Division Dindoshi Branch; order dated 03/09/2024; appeal dismissed; Alpesh Shah v. Ramnath P. Iyer; Commercial Appeal from Order No.1 of 2025; Notice of Motion No.1834 of 2024; Commercial Suit No.255 of 2021; decided 06 March 2025; per Bharati Dangre, J.

What did the court decide?

Under the proviso to Order VIII Rule 1 CPC as amended by the Commercial Courts Act, 2015 (Section 16), upon expiry of 120 days from service of summons the defendant forfeits the right to file the written statement, and the Court has no power to extend that period by condoning the delay. ¶5

Mr. Alpesh Shah vs Mr. Ramnath P. Iyer — Bombay HC (2025) — LawSathi Research

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32-comao-1-2025.doc

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rajshree

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION

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COMMERCIAL APPEAL FROM ORDER NO.1 OF 2025

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NOTICE OF MOTION NO.1834 OF 2024

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COMMERCIAL SUIT NO.255 OF 2021

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Alpesh Shah ] .. Appellant (Org. Defendant) vs. Ramnath P. Iyer ] .. Respondent (Org. Plaintiff)

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Mr.S. K. Pise, for the Appellant. Ms.Isha Sawant i/b Ruben Fernandes for Respondent.

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CORAM : ALOK ARADHE, CJ & BHARATI DANGRE, J.

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DATE : 06^th MARCH, 2025.

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ORDER (PER BHARATI DANGRE, J) :-

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Present Appeal is filed, being aggrieved by the order dated 03/09/2024 passed by the Bombay City Civil Court, Borivali Division, Dindoshi Branch.

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The order is passed on Notice of Motion taken out by the Defendant to condone the delay of 95 days for filing the written statement and seeking permission to file written statement on record.

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Digitally signed RAJSHREEKISHOR by RAJSHREEKISHOR MOREDate: MORE 2025.03.10 16:47:04 +0530

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We have heard the learned counsel for the parties and perused the impugned order.

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32-comao-1-2025.doc

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The Respondent filed a Commercial Suit for recovery of certain monies, in which the present Appellant is impleaded as Defendant and on 01/10/2022 he received the writ of summons. Though the Advocate appearing on his behalf filed Vakalatnama, but he failed to file written statement within a period of 120 days from the date of service of writ of summons.

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On 30/11/2022 the Appellant sought time to file written statement and time was granted, but on account of some personal difficulties, the Appellant could not contact his Advocate and in result, the written statement was not filed.

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On 06/03/2023, the Appellant had taken out a Notice of Motion for condonation of delay in filing the written statement and the same came to be rejected by the learned Judge.

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We have perused the impugned order which specifically focuses upon the issue as to whether the Defendant is entitled for condonation of delay in filing written statement.

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The order record that the Suit was filed by the Plaintiff on 04/06/2019 and it received registration as a Commercial Suit on 07/04/2021. It is further noted that on 10/07/2021, writ of summon to defendants was issued and, therefore, it was imperative for him to file the written statement, in accordance with Order VIII, Rule 1 of the Code of Civil Procedure, as amended by the Commercial Courts Act, 2015 in terms of Section 16.

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The proviso appended to Order VIII Rule 1 reads thus :-

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“Provided that where the defendant fails to file the written statement within the said period of thirty days, he shall be allowed to file the written statement on such other day, as may be specified by the Court, for reasons to be recorded in writing and on payment of such costs as the Court deems fit, but which shall not be later than one hundred twenty days from the date of service of summons and on expiry of one hundred twenty days from the date of service of summons, the defendant shall forfeit the right to file the written

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32-comao-1-2025.doc

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statement and the Court shall not allow the written statement to be taken on record"

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In the wake of the clear provision to the aforesaid effect, no fault can be found in the impugned order, where the learned Judge has recorded that the Defendant has failed to file the Written Statement within a period of 120 days from 02/10/2022 when the summons was received. The application for condonation of delay was filed on 06/03/2022 and in the wake of the amended provision of Order VIII Rule 1 of the CPC, the learned Judge has rightly held that the Defendant has forfeited his right to file the written Statement and it is not within the powers of the Court to extend this period beyond 120 days, by condoning the delay.

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Finding no legal infirmity in the order, by upholding the same, Appeal is dismissed.

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(BHARATI DANGRE, J.)

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( CHIEF JUSTICE)

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Mr. Alpesh Shah v. Mr. Ramnath P. Iyer

Case brief

What is this about?

What did the court decide?

Mr. Alpesh Shah v. Mr. Ramnath P. Iyer

Case brief

What is this about?

What did the court decide?

What the court decided

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