IN THE COURT OF RUBY ALKA GUPTA

DISTRICT JUDGE, (COMMERCIAL COURT)-02, EAST

DISTRICT, KARKARDOOMA COURTS, DELHI

CS (COMM.) No. 163/2023

CNR No. DLET01- 006404-2023

In the matter of:

M/s Usha Martin Limited …….Plaintiff

Vs.

Dharamraj Contract (India) pct. Ltd. ...….Defendant

ORDER ON APPLICATION SEEKING CONDONATION OF

DELAY IN FILING WS

1. This order shall dispose off the application seeking condonation

of delay in filing the WS filed on behalf of plaintiff to the counter
claim. No reply to the said application was filed on behalf of the
defendant/counter claimant. Submissions have been heard. File has
been perused.

2. In the present suit for specific performance, the defendant no. 1

filed a counter claim. WS to the counter claim was filed alongwith the
present application.

CS(COMM) 163/2023 Order dated 06.02.2025

M/s Usha Martin Ltd. Vs. Dharamraj Contract (India) Pvt. Ltd. Page no. 1 of 7
3. Ld. Counsel for the plaintiff has submitted that the counter
claim was filed on 22.11.2023. It was, however, registered on
02.03.2023. The Ld. Counsel for the plaintiff relies upon order dated
17.09.2019 passed by the Hon’ble High Court of Delhi in CM(M) No.
04/19 titled as M/s P.S.A. Nitrogen Ltd. Vs. M/s MAEDA
Corporation India and Order. In the said decision, the Hon’ble High
Court has laid down that the time period for filing WS to counter
claim shall commence once a specific order is passed for registration
of the counter claim and number being allotted to it and service of
summons being accepted by the plaintiff or the Ld. Counsel for the
plaintiff if present in court or upon summons being served on the
plaintiff, if not represented in court. It is further submitted that the
WS to the counter claim was filed on 29.04.2024. There is thus stated
to be a delay of 28 days. It was further submitted that the Ld. Counsel
for the plaintiff was unwell, leading to delay in filing the WS. Bills of
medicines being purchased have been placed on record.

4. It would be appropriate to note out here that it is stated in their

application that the Ld. Predecessor had perused the counter claim on
22.02.2024 and had given the liberty to the plaintiff to file the WS.
Copy of the counter claim was not supplied to the plaintiff. Certified
copy was applied on the same date and was received by the plaintiff
on 29.02.2024. It is thus claimed that the statutory period of 30 days
for filing the WS would have started from 01.03.2024. Thus
considered, there is stated in the application, to be, a delay of 30 days
CS(COMM) 163/2023 Order dated 06.02.2025
M/s Usha Martin Ltd. Vs. Dharamraj Contract (India) Pvt. Ltd. Page no. 2 of 7
in filing WS to the counter claim. Further, it is mentioned that the Ld.
Counsel was down with viral fever in the third week of February,
2024 and was isolated at home. He joined office on 11.03.2024. It is
further mentioned that the statutory period of filing WS is extendable
by 90 days. Condonation of delay is therefore sought.

5. Ld. Counsel for the defendant/counter claimant submitted that

the counter claim was filed on 22.04.2023 and a copy was given to the
plaintiff on the same day. It is stated that the WS to the counter claim
was filed on 29.04.2024 and therefore it is beyond the period of 120
days. Ld. Counsel has also referred to para 8 and 11 of the cited
decision i.e. M/s P.S.A. Nitrogen Ltd. (supra).

6. Before delving into the facts of the case it would be appropriate

to refer to the decision cited. In para 8 thereof, it has been observed
that the counter claim in the case before the Hon’ble High Court was
filed prior to the notification of the Commercial Courts Act. Further in
the said case, the Hon’ble Court laid down the procedure in respect of
counter claims in para 11. Same is as follows:

a. Trial Courts ought to ensure that Counter-Claims are examined

by the Presiding Officer at the time when the same are presented
before the Court.

CS(COMM) 163/2023 Order dated 06.02.2025

M/s Usha Martin Ltd. Vs. Dharamraj Contract (India) Pvt. Ltd. Page no. 3 of 7
b. A specific order shall be passed directing registration of the
counter claim and a number being allotted to the same.

c. If the plaintiff or the counsel for the plaintiff is present, a

specific order shall also be passed to the effect that service of
summons in the counter-claim is accepted.

d. If there is more than one plaintiff, and any of the plaintiffs is not
present or is not represented in the court, proper summons shall be
directed to be issued to the said plaintiffs.

e. The time period for filing of the written statement shall then
commence.

7. Reading of the above stated procedure makes it apparent that

the counter claim is to be considered from the date of perusal by the
Ld. Presiding Officer and directing its registration and not the date of
filing of the counter claim. The procedure further requires the plaintiff
to be served with summons, either in court orally or if the
plaintiff/his/her counsel is not present in the court then by service of
such summons. The counter claim in the present case was registered
on 02.03.2024. The Ld. Predecessor had perused the same and
directed its registration on 22.02.224. By the same order, the plaintiff
had been directed that they may file reply to the counter claim. Thus,
120 days for filing WS for commercial court shall be considered from
CS(COMM) 163/2023 Order dated 06.02.2025
M/s Usha Martin Ltd. Vs. Dharamraj Contract (India) Pvt. Ltd. Page no. 4 of 7
22.02.2024. The Predecessor had perused the counter-claim, directed
its registration and served notice of the counter-claim upon the
plaintiff on 22.02.2024.

8. During the hearing held on 02.05.2024, Ld. Counsel for the

plaintiff/respondent to the counter claim submitted that they had filed
the written statement to the counter claim on 29.04.2024 through
email. The said email is no longer in use. The reader of the court has
also been transferred and therefore it is not possible to verify the date
of sending the WS on the email of the court. The WS to the counter
claim was not e-filed. The hard copy of the said WS was filed on
02.05.2024. However, the defendant/counter claimant has accepted
that the WS was filed on 29.04.2024.

9. Considering the date of service of filing of counter claim to be

22.02.2024 and the date of filing of WS to the counter claim to be
29.04.2024, there is a delay of 39 days in filing the WS. The
Commercial Courts Act, 2015 amended the CPC as applicable to
commercial disputes within the jurisdiction of Commercial Courts
Act, 2015. By way of such amendment, the second proviso of Order V
Rule 1 (1) CPC was substituted as was the Rule 1 of Order VIII.

“Provided further 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

CS(COMM) 163/2023 Order dated 06.02.2025

M/s Usha Martin Ltd. Vs. Dharamraj Contract (India) Pvt. Ltd. Page no. 5 of 7
 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 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 statement and the Court shall not allow the written
statement to be taken on record.”

Both these provisions require the defendant to file the WS within 30

days. Upon failure to do so, the defendant was ‘allowed’ to file the
WS within 120 days from the date of service of summons for reasons
to be recorded in writing and on payment of such costs as the court
deems fit. After such 120 days, the defendant would forfeit the right to
file WS and the court could not allow the WS, filed after 120 days, to
be taken on record.

10. Ergo, the defendant may file WS beyond the period of 30 days
albeit within 90, thereafter days with the permission of the court. The
plaintiff has filed the WS on the 69th day from service of the counter
claim. It has been stated that the counsel was unwell which has not
been contested by the defendant/counter claimant. In the facts and
circumstances stated above, the delay in filing the WS to the counter
claim is condoned subject to the cost of Rs.15,000/-. Application
accordingly stands disposed off.

CS(COMM) 163/2023 Order dated 06.02.2025

M/s Usha Martin Ltd. Vs. Dharamraj Contract (India) Pvt. Ltd. Page no. 6 of 7
11. The application of the defendant seeking condonation of delay
Digitally signed
in filing the WS therefore stands allowed.
RUBY by RUBY ALKA
GUPTA
ALKA Date:
2025.02.20
GUPTA 16:20:14 +0530

(RUBY ALKA GUPTA)

District Judge (Comm. Court)-02,
East District/KKD Courts/Delhi
06.02.2025/M

CS(COMM) 163/2023 Order dated 06.02.2025

M/s Usha Martin Ltd. Vs. Dharamraj Contract (India) Pvt. Ltd. Page no. 7 of 7