Bombay High Court
Bhambhani Shipping Ltd vs The Board Of Mumbai Port Authority on 7 November, 2025
Author: Abhay Ahuja
Bench: Abhay Ahuja
2025:BHC-OS:20359
37. IA 1489-25 in COMAS 81-21.doc
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
Digitally
signed by
ADMIRALTY AND VICE ADMIRALTY JURISDICTION
NIKITA NIKITA
YOGESH
YOGESH GADGIL
GADGIL Date:
2025.11.08
INTERIM APPLICATION NO. 1489 OF 2025
20:18:50
+0530 IN
COMMERCIAL ADMIRALTY SUIT NO. 81 OF 2021
Bhambhani Shipping Ltd. Applicant
In the matter between
The Board of Mumbai Port Authority ...Plaintiff
V/s.
Halani Star & Ors. ...Defendants
Mr. Dhruva Gandhi with Ms. Charmi Shah i/b Crawford Bayley & Co.
for the Applicant/Defendant No.2.
Mr. Ajai Fernandes with Mrs. Nina Motiwalla, Ms. Janhavi Kandekar
and Ms. Anjali Kotecha for the Plaintiff.
CORAM : ABHAY AHUJA, J.
DATE : 7th NOVEMBER, 2025
ORAL ORDER. :
1. This Interim Application seeks condonation of delay of
approximately 684 days in filing the additional written statement and a
direction to take the same on record.
2. Mr. Gandhi, learned Counsel appearing for the Applicant submits
that this Application has been filed on behalf of the Defendant No.2.
Learned Counsel submits that the Plaint was filed on 27 th August, 2021
and was registered on 18th December, 2021. The written statement was
filed on behalf of the Defendant No. 2 on 8 th November, 2021, well
37. IA 1489-25 in COMAS 81-21.doc
before the expiry of 120 days. That by Interim Application (L) No. 7315
of 2023, the Plaintiff sought to amend the Plaint to incorporate certain
claims that had arisen after the filing of the Suit. The said Interim
Application was allowed by order dated 11 th April, 2023 and by the said
order, the Defendants were permitted to file additional written
statement to the amended Plaint within a period of three weeks from
the service of the amended Plaint.
3. Mr. Gandhi submits that unfortunately the additional written
statement on behalf of the Defendant No. 2 remained to be filed and
when the Suit came up on 31st January, 2025, leave was sought on
behalf of the Defendant No. 2 to file an additional written statement to
deny the additional claim by the Plaintiff. Mr. Gandhi submits that at
that juncture a question arose as to whether there is any time limit for
filing of additional written statement in the context of a commercial
suit under the provisions of the Code of Civil Procedure, 1908 ("CPC")
as amended by the Commercial Courts Act, 2015.
4. When the matter came up on the 7 th March, 2025, reliance was
placed on behalf of the Applicant on the following three decisions
rendered in the context of Order VIII Rule 9 and 10 of the CPC to
37. IA 1489-25 in COMAS 81-21.doc
submit that since there was no restriction in order VIII Rule 10 of the
CPC, that after expiry of 90 days further time to file written statement
cannot be granted, the same logic would also apply to Rule 9 with
respect to the filing of the additional written statement and that the
Court would have discretion to allow filing of the additional written
statement even after the expiry of 30 days as there is no restriction
even after the enactment of Commercial Courts Act, 2015 in Order VIII
Rule 10 of the CPC that after the expiry of 30 days further time cannot
be granted.
(i) Salem Advocate Bar Association, T. N. Vs. Union of India1
(ii) Olympic Industries Vs. Mulla Hussainy Bhai Mulla Akberally and
Ors.2
(iii) Shobha w/o Wasudeo Tadas and Ors. Vs. Namdeo s/o Balaji Tadas
and Ors.3
5. Mr. Gandhi, learned Counsel submits that it was at the said
hearing that the learned Counsel appearing for the Plaintiff contended
that it would be appropriate that an application / affidavit is filed on
behalf of the Applicant and that is how this application came to be filed
on 26th March, 2025.
1 (2005) 6 SCC 344
2 (2009) 15 SCC 528
3 (2016) 2 Mh. L. J. 178
37. IA 1489-25 in COMAS 81-21.doc
6. Mr. Gandhi submits that under Order VIII Rule 9 of the CPC
although the time to file additional written statement is not to be more
than 30 days, however, in exceptional cases this Court can extend the
same. Mr. Gandhi submits that this Rule is unlike Rule 1 of Order VIII.
Further, another feature of Order VIII, which is found in Rule 10, which
has been made applicable to commercial disputes vide the Commercial
Courts Act is that no Court shall make an order to extend the time
provided under Rule 1 of Order VIII for filing a written statement, but
such fetters have not been placed on the power of the Court under Rule
9. Mr. Gandhi submits that this necessarily implies that while the time
line prescribed in Rule 1 is a strict time line, which cannot be extended
under any circumstances, the time line prescribed in Rule 9 is
prescriptive and the Court continues to enjoy a discretion to extend the
time in exceptional facts and circumstances.
7. Mr. Gandhi further submits that the Hon'ble Supreme Court has
observed in the case of Olympic Industries Vs. Mulla Hussainy Bhai
Mulla Akberally and Ors.(supra) that mere delay is not a sufficient
ground to refuse to file an additional written statement or to dismiss an
application under Rule 9, where no prejudice would be caused to the
party opposing the additional written statement.
37. IA 1489-25 in COMAS 81-21.doc
8. Mr. Gandhi submits that there is sufficient cause for delay in
filing the Application. Although three weeks' time to file additional
written statement was granted by order dated 11 th April, 2023,
however, since the Plaintiff had filed an Interim Application (L) No.
26301 of 2023 under Order XIII-A of the CPC seeking a summary
judgment, the Defendant No. 2 had drained all its energies in
defending the said Interim Application, which was rejected on 18 th
September, 2024. Mr. Gandhi submits that it was due to the diligent
defending by the Applicant that the Interim Application for summary
judgment filed by the Plaintiff came to be rejected. That, therefore, the
additional written statement could not be filed in the three weeks' time
granted. Mr. Gandhi submits that thereafter on the very first
opportunity when the Suit came up for directions, after the Application
for summary judgment was rejected that the Defendant No. 2 sought
leave to file an additional written statement. Mr. Gandhi submits that
the bona-fides of the Defendant No. 2, therefore, cannot be doubted.
9. Mr. Gandhi further submits that in the present case, no prejudice
would be caused to the Plaintiff if the delay in filing the additional
written statement is condoned. That the delay is a pre-trial delay as
issues have also not been framed and the trial is yet to commence. That
37. IA 1489-25 in COMAS 81-21.doc
condonation of delay would permit the holistic adjudication of the case
and that the Defendant No. 2 would get an opportunity to deny the
additional claim made by the Plaintiff. Mr. Gandhi submits that
originally the claim of the Plaintiff was for Rs. 1,48,00,642.18, but after
the amendment the claim has increased to Rs. 1,66,65,170/-. In other
words the claim has been enhanced by Rs. 18,64,527.83.
10. Mr. Gandhi has also made submission on the conduct of the
Plaintiff in seeking to amend the Plaint and include additional claims
nearly 15 months after the cause of action has arisen in his favour. Mr.
Gandhi submits that the claims that have been introduced were known
to the Plaintiff as far as back on 2 nd December, 2021 itself but the
Interim Application for amendment came to be filed only on 15 th
March, 2023, which was allowed on 11th April, 2023. Mr. Gandhi
submits that the Plaintiff has itself delayed amending its own claim by
a period of nearly one and a half years and it cannot be heard to say
that the delay in filing additional written statement on behalf of the
Defendant No. 2 should not be condoned, more so, when in the
interregnum the Defendant No. 2 was diligently defending an Interim
Application moved by the Plaintiff under Order XIII-A of the CPC.
37. IA 1489-25 in COMAS 81-21.doc
11. As regards the period between 31 st January, 2025 to 26th March,
2025 is concerned, Mr. Gandhi submits that it cannot be said that there
is any delay for the said period as the issue of Rule 9 of Order VIII has
been discussed before this Court during this period.
12. Mr. Gandhi submits that accordingly there is a sufficient cause
made out explaining the delay in filing the Interim Application.
13. Mr. Gandhi has submitted that the Plaintiff in its reply has
adopted a hyper technical approach regarding format of the Interim
Application or its verification and the same cannot be given any weight.
14. Mr. Gandhi submits that his client is willing to be put to any
terms that this Court may impose for allowing the Application.
15. On the other hand, Mr. Fernandes, learned Counsel for the
Plaintiff reiterates the grounds taken in the reply. Mr. Fernandes
submits that in view of the decision of the Hon'ble Supreme Court in
the case of SCG Contracts (India) Private Limited Vs. K. S. Chamankar
Infrastructure Private Limited and Others4 Rules 1 and 10 of Order VIII
4 (2019) 12 SCC 210
37. IA 1489-25 in COMAS 81-21.doc
of the CPC are clearly mandatory and that the mandate cannot be
circumvented as the Court has no power to extend the time to file
additional written statement beyond 30 days as provided in Rule 9.
16. Mr. Fernandes further submits that even otherwise there is no
sufficient cause for condoning the delay of 684 days and that if this
Court in any circumstance is inclined to allow the Application, the same
ought to be subject to costs.
17. I have heard the learned Counsel and considered their
submissions.
18. Order VIII Rules 1, 9 and 10 of the CPC are usefully reproduced
as under:-
"1. Written statement.-- The defendant shall, within thirty
days from the date of service of summons on him, present
a written statement of his defence:
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 same on such other day, as
may be specified by the Court, for reasons to be recorded
in writing, but which shall not be later than ninety days
from the date of service of summons.
9. Subsequent pleadings.-- No pleading subsequent to the
written statement of a defendant other than by way of
37. IA 1489-25 in COMAS 81-21.doc
defence to set-off or counter-claim shall be presented
except by the leave of the Court and upon such terms as
the Court thinks fit; but the Court may at any time require
a written statement or additional written statement from
any of the parties and fix a time of not more than thirty
days for presenting the same.
10. Procedure when party fails to present written
statement called for by Court.-- Where any party from
whom a written statement is required under rule 1 or rule
9 fails to present the same within the time permitted or
fixed by the Court, as the case may be, the Court shall
pronounce judgment against him, or make such order in
relation to the suit as it thinks fit and on the
pronouncement of such judgment a decree shall be drawn
up."
19. Before proceeding further it would be appropriate to consider the
law thus far.
20. In the case of SCG Contracts (India) Private Limited Vs. K. S.
Chamankar Infrastructure Private Limited and Others (supra) the
Hon'ble Supreme Court had an opportunity to elucidate the statutory
provisions that were introduced pursuant to the Commercial Courts
Act, 2015 in Order VIII of the CPC. Paragraph 8 of the said decision
quoted the following proviso, which was not only added to Order V but
also to Order VIII Rule 1 of the CPC:
37. IA 1489-25 in COMAS 81-21.doc
"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 and twenty days from the
date of service of summons and on expiry of the one hundred
and twenty days from the date of service of summons, the
defendant shall forfeit the right to file the written statement
and the court shall not allow the written statement to be taken
on record."
21. The aforesaid proviso was re-emphasized by reinserting yet
another proviso to Order VIII Rule 10 of the CPC as under:-
"10. Procedure when party fails to present written statement
called for by court---Where any party from whom a written
statement is required under Rule 1 or Rule 9 fails to present
the same within the time permitted or fixed by the court, as
the case may be, the court shall pronounce judgment against
him, or make such order in relation to the suit as it thinks fit
and on the pronouncement of such judgment a decree shall be
drawn up.
Provided further that no court shall make an order to extend
the time provided under Rule 1 of this Order for filing of the
written statement."
(emphasis supplied)
22. The Hon'ble Supreme Court after analyzing the aforesaid
provisions observed that ordinarily a written statement is to be filed
within a period of 30 days. However, grace period of further 90 days is
granted, which the Court may employ for reasons to be recorded in
writing on payment of such costs as it deems fit to allow such written
37. IA 1489-25 in COMAS 81-21.doc
statement to come on record. What is significant is that beyond 120
days from the date of service of summons the Defendant shall forfeit
the right to file the written statement and the Court shall not allow the
written statement to be taken on record. This is further buttressed by
the proviso in Order VIII Rule 10 also adding that the Court has no
power to extend the time beyond this period of 120 days.
23. The Hon'ble Supreme Court observed in paragraph 16 that
clearly the clear, definite and mandatory provisions of Order V read
with Order VIII Rules 1 and 10 cannot be circumvented by recourse to
the inherent powers under Section 151 of the CPC.
24. As can be seen that the provisos to Order VIII Rule1 as well as to
Order VIII Rule 10 restrict the powers of the Court to extend the time
and also prohibit a written statement to be filed beyond the statutory
period and also forfeit the right of the Defendant to have the written
statement taken on record beyond the statutory period. These
amendments in view of the application of the Commercial Courts Act,
2015 to commercial suits but not to ordinary suits. As far as the
ordinary suits are concerned, the Hon'ble Supreme Court in the case of
37. IA 1489-25 in COMAS 81-21.doc
Kailash Vs. Nanhku & Ors.5, while highlighting that ordinarily the time
schedule prescribed in Order VIII Rule 1 has to be honoured and the
Defendant should be vigilant, has observed that the provision is
directory and not mandatory however the extension can be only by way
of an exception and for reasons assigned by the Defendant and also
recording reasons by the Court to its satisfaction. It has been spelt out
that the departure from the time schedule prescribed by Order VIII Rule
1 of the CPC was being allowed to be made because the circumstances
were exceptional, occasioned by reasons beyond the control of the
Defendant and such extension was required in the interest of justice,
and grave injustice would be occasioned if the time was not extended.
That although there is no straight jacket formula but the extension of
time is to be only by way of an exception and not in a case of laxity or
gross negligence. That the Court may impose costs for dual purpose: (i)
to deter the Defendant from seeking any extension of time just for the
asking and (ii) to compensate the Plaintiff for the delay and
inconvenience caused to him. Obviously, the aforesaid principles would
not come in handy as regards the filing of the written statement under
Order VIII Rule 1 of the CPC as applicable to commercial suits.
5 MANU/SC/0264/2025
37. IA 1489-25 in COMAS 81-21.doc
25. The restrictive proviso applicable to Order VIII Rule 1 or even the
proviso applicable to Order VIII Rule 10 as can be seen does not find
place as a proviso to Rule 9, which pertains to subsequent pleadings.
The proviso to Rule 10 refers to Rule 1 but not to Rule 9.
26. No doubt the present Suit is a Commercial Admiralty Suit to
which the Commercial Courts Act would apply and therefore the
aforesaid restrictive proviso to Order VIII Rule 1 and the interpretation
thereof by the Hon'ble Supreme Court would apply to filing of the
written statement in the Suit. But what we are concerned with in the
present application is filing of an additional written statement under
Rule 9 of Order VIII. Rule 9 of Order VIII provides that no pleading
subsequent to the written statement of the Defendant shall be
presented except by the leave of the Court and upon such terms as the
Court thinks fit and the Court may at any time require a written
statement or additional written statement from any parties and fix a
time of not more than 30 days for presenting the same. Therefore,
ordinarily the time schedule prescribed in Order VIII Rule 9 is 30 days.
Same was the case in the interpretation of Order VIII Rule 1 by the
Hon'ble Supreme Court in the case of Kailash Vs. Nanhku & Ors.
(supra). The language of Order VIII Rule 1 also gave 30 days for the
37. IA 1489-25 in COMAS 81-21.doc
written statement and the proviso permitted extension of time by the
Court beyond the 30 days period for reasons to be recorded in writing
but with a direction that the period shall not be later than 90 days from
the date of service of summons. That despite the said language, the
Hon'ble Supreme Court in the case of Kailash Vs. Nanhku & Ors.(supra)
observed that the proviso was directory and that in exceptional
circumstances the time could be extended.
27. As noted above, the Commercial Courts Act, 2015 has only
inserted the restrictive proviso to apply to Rule 1 but not to Rule 9. If
the legislature had intended that the said restriction to be applicable to
Rule 9 then the legislature would have said so. That is not the case
here. I am of the view that the language in Rule 9 is directory and not
mandatory. Until the legislature specifically provides for the same, in
my view, in exceptional circumstances but not ordinarily, for reasons to
be recorded in writing but not in a case of laxity or gross negligence
and of course subject to costs which are deterrent to the Defendant and
compensatory to the Plaintiff, the delay in filing the additional written
statement can be condoned if a case of sufficient cause is made out.
The discretion is to be exercised to the satisfaction of the Court. In
short, the principles enunciated by the Hon'ble Supreme Court in the
37. IA 1489-25 in COMAS 81-21.doc
case of Kailash Vs. Nanhku & Ors. for filing of a written statement in an
ordinary suit would apply to filing of an additional written statement
under Rule 9 of Order VIII even in the case of commercial suits.
28. Having observed as above, let us now consider whether the
Defendant No. 2-Applicant has made out a case of sufficient cause in
condoning the delay of 684 days.
29. By order dated 11th April, 2023, this Court had permitted the
Defendants to file additional written statement to the amended Plaint
within a period of three weeks from the date of service of the amended
Plaint on the said Defendants. Interim Application (L) No.26315 of
2023 under Order XIII-A of the CPC seeking summary judgment was
filed on 20th September, 2023. The said Application was heard on 18 th
September, 2024 and dismissed. The explanation given by the
Defendant No. 2 for not filing the additional written statement in three
weeks' time is that the said Defendant had trained all its energies in
defending the said Interim Application and that it was due to the
diligent defending by the Defendant No. 2 that the said Interim
Application was rejected on 18th September, 2024. The Court had
observed that the Suit cannot be decreed without oral evidence being
37. IA 1489-25 in COMAS 81-21.doc
led. That thereafter the matter came up on 31 st January, 2025, when
the Defendant No. 2 sought time to file additional written statement.
This fact is borne out from the record. On the 31 st January, 2025, after
it was pointed out to this Court that the additional written statement
had not been filed in the time granted by this Court, upon a query from
the Court as to whether there was any time limit for filing the
additional written statement, Mr. Gandhi for the Applicant-Defendant
No. 2 had fairly drawn this Court's attention to Order VIII Rule 9 of the
CPC with respect to subsequent pleadings which limits the time for
filing additional written statement to 30 days. However, Mr. Gandhi
had sought some time to examine the case law, if any, available for the
extension of this period. Mr. Fernandes, learned Counsel for the
Plaintiff-Port Authority has opposed any request to file additional
written statement and submitted that no application for the same
setting out the reasons on the ground had been filed. The matter was
then adjourned for Mr. Gandhi to examine case law.
30. On 7th March, 2025, when the matter was called out, Mr.
Gandhi had submitted that this Court has discretion to extend the time
and relied upon the proviso of Order VIII Rule 1 of the CPC in the
context of the decisions of the cases of Salem Advocate Bar Association,
37. IA 1489-25 in COMAS 81-21.doc
T. N. Vs. Union of India (supra), Olympic Industries Vs. Mulla Hussainy
Bhai Mulla Akberally and Ors. (supra) and Shobha w/o Wasudeo Tadas
and Ors. Vs. Namdeo s/o Balaji Tadas and Ors. (Supra) Mr. Gandhi had
further submitted that through inadvertence the written statement
could not be filed within a period of three weeks and that since the
Application for summary judgment had been rejected, this Court permit
filing of an additional written statement to deny the additional claim
made by the Plaintiff. However, since Mr. Fernandes for the Plaintiff
had raised a grievance that no explanation was offered for the delay or
for non filing of the written statement within the time granted, nor any
application was made in that regard, Mr. Gandhi had sought time to file
an application and this Court had directed filing of an appropriate
application on behalf of the Defendant No. 2 and accordingly this
Application came to be filed on 26th March, 2025.
31. In my view, therefore, the reason for the delay in not filing the
additional written statement as per order dated 11 th April, 2023 and in
filing the application seeking extension of time to file the additional
written statement has been sufficiently explained. The issues have still
not been framed. The trial is yet to commence. These are exceptional
circumstances in view of which the delay has occasioned for reasons
37. IA 1489-25 in COMAS 81-21.doc
beyond the control of the Defendant No. 2. The claim of the Plaintiff in
view of the amended Plaint as submitted has been enhanced from Rs.
1,48,00,642.18 to Rs. 1,66,65,170/- and if extension of time to file
additional written statement is not granted, in my view, grave injustice
would be caused. I agree with Mr. Gandhi that condonation of delay
and permitting the Defendant No. 2 to file additional written statement
to deal with the additional claim made by the Plaintiff would permit a
holistic adjudication of the case. However, to deter the Defendant from
seeking any extension of time just for the asking and to compensate the
Plaintiff for the delay and inconvenience caused, I propose to impose
costs of Rs. 1,00,000/-. It would, in view of the aforesaid, not be
necessary to comment on the conduct of the Plaintiff with respect to
the Application for amendment more so when the Application has been
allowed by the Court after hearing the parties.
32. In view of the above discussion, subject to payment of costs of
Rs. 1,00,000/- by the Applicant/Defendant No.2 to the Plaintiff, within
a period of three weeks, let additional written statement be filed and
served within a period of three weeks thereafter.
37. IA 1489-25 in COMAS 81-21.doc
33. The Interim Application accordingly stands allowed and disposed
as above.
(ABHAY AHUJA, J.)
