- Case
- NILESH SURESH KENE AND ORS v. ASHOK DURGA PILLAY AND ORS (Bombay High Court, 02-01-2025)
- Law
- Code of Civil Procedure, Commercial Courts Act.
Facts: A commercial suit was filed by the Plaintiffs (Respondent Nos. 1 and 2) seeking declaration and damages. The Defendants (Petitioners/Original Defendant Nos. 1 to 4) filed a Written Statement along with a Counter-claim. Plaintiffs and Defendant Nos. 5 to 13 filed their Written Statements to the Counter-claim beyond the 120-day period prescribed under the Commercial Courts Act, 2015. The District Judge condoned the delay. Defendant Nos. 1 to 4 challenged the order condoning the delay, arguing that it exceeded the permissible 120 days.
Procedural Posture: The Petitioners (Original Defendant Nos. 1 to 4) filed a Writ Petition in the High Court of Judicature at Bombay, challenging the order of the District Judge that condoned the delay in filing the Written Statement to the Counter-claim.
Issue: Did the District Judge err in condoning the delay beyond the 120-day period prescribed under the Commercial Courts Act, 2015, for filing a Written Statement to a Counter-claim in a commercial suit? Specifically, does the 120-day limitation apply to Written Statements filed in response to counterclaims, and is service of a writ of summons required for the counter-claim to trigger the limitation period?
Holding: No, the District Judge did not err. The High Court dismissed the Writ Petition, holding that the period of limitation for filing a Written Statement to a Counter-claim had not commenced because the Defendant Nos. 1 to 4 (who filed the Counter-claim) did not effect service of the Writ of Summons of the Counter-claim on the Plaintiffs and Defendant Nos. 5 to 13.
Reasoning: The Court reasoned that a Counter-claim is to be treated as a plaint, and therefore, all rules applicable to a plaint apply to a Counter-claim, including the requirement of serving a Writ of Summons. The Court emphasized that Order VIII Rule 6A(4) of the Code of Civil Procedure (CPC) mandates that a Counter-claim shall be treated as a plaint. The Court disagreed with the argument that merely serving a copy of the Counter-claim is sufficient, stating that this would lead to an anomalous situation where different procedures apply for the original plaint and the Counter-claim within the same suit. The court relied on decisions from the Delhi and Madras High Courts, which emphasized the mandatory requirement to register the Counter-claim and serve summons to ensure the limitation period commences. Since the Writ of Summons was not served, the limitation period had not begun, and the District Judge's order condoning the delay was justified.
