Bombay High Court
Ashwini Infra Development Pvt Ltd ... vs Municipal Corporation Of Greater ... on 4 October, 2021
Bench: G.S. Patel
19-COMS281-2019.DOC
Atul
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
IN ITS COMMERCIAL DIVISION
COMMERCIAL SUIT NO. 281 OF 2019
Ashwini Infra Development Pvt Ltd & Ors ...Plaintiffs
Versus
Municipal Corporation of Greater Mumbai ...Defendants
Ms Panthi Desai, i/b MP Vashi & Associates, for the Plaintiffs.
Mr Sagar Patil, for the Defendant-MCGM.
CORAM: G.S. PATEL, J
DATED: 4th October 2021
PC:-
1.
The learned Advocate for the Plaintiffs is correct in saying
that the written statement by the sole Defendant (the MCGM) is
hopelessly barred by limitation. This is a commercial suit and is
governed by the Commercial Courts Act 2015. That Act amended
the Code of Civil Procedure 1908 extensively including substituting
Digitally the second proviso to Order V Rule 1. This amendment grants a
signed by
ATUL
ATUL
GANESH Defendant time of 30 days after service of writ of summons to enter
GANESH KULKARNI
KULKARNI Date:
2021.10.05
a written statement. The Court may, for reasons to be recorded in
10:41:32
+0530 writing, and on payment of such costs as the Court determines,
extend the time but not beyond 120 days from the date of service of
the writ of summons. The Hon'ble Mr Justice SJ Kathawalla has in
4th October 2021
19-COMS281-2019.DOC
Axis Bank Ltd v Mira Gehani1 categorically held that the Court has
no power to extend time beyond 120 days of the service of the writ
of summons.
2. In this case, the writ of summons was served on the MCGM
along with a copy of the plaint on 15th March 2019. There is an
Affidavit of Service dated 22nd April 2019.
3. Consequently, there is no question of adjourning the matter
for a written statement or extending the time. The written statement
is held to be barred by limitation.
4. List the matter for an ex parte decree or judgment for want of
the written statement in accordance with the provisions of the
Commercial Courts Act 2015 on 21st October 2021.
5. The Plaintiffs must keep its witnesses present along with a
compilation of their documents.
6. I clarify that even if the MCGM has not entered a written
statement, it will nonetheless be entitled to cross-examine the
witness of the Plaintiffs on the basis of the pleadings in the plaint.
The MCGM cannot and will not be entitled to place an affirmative
case to the witness, because it has pleaded none, not having entered
a written statement.
1 2019 SCC Online Bom 358.
4th October 2021
19-COMS281-2019.DOC
7. The Affidavit in lieu of examination-in-chief of the Plaintiffs'
two witnesses must be filed and served by 14th October 2021.
8. List the matter on 21st October 2021.
9. All concerned will act on production of a digitally signed copy
of this order.
(G. S. PATEL, J)
4th October 2021
