The Bombay High Court has ruled that the statutory time limit for filing a written statement does not begin unless a writ of summons is properly served, expressly waived, or the court specifically directs the defendant to file its defence. Holding that mere appearance in court or filing a reply to an interim application is not enough, the Court set aside the trial court's refusal to accept the developer's written statement and allowed it to defend two long-pending property suits.
Background of the Case
The case arose from two civil suits filed in 2011 by M/s. East Tradvest Pvt. Ltd. and M/s. Mayuresh Structure Pvt. Ltd. against M/s. Real Gem Buildtech Pvt. Ltd. seeking specific performance under the Maharashtra Ownership Flats Act (MOFA). The plaintiffs alleged that despite paying more than 25% of the agreed sale consideration for flats, the developer failed to execute and register the agreements.
Although the developer appeared in court and contested the plaintiffs' applications for interim relief, it did not file written statements. More than seven years later, it sought condonation of delay so that its written statements could be taken on record.
The trial court rejected the request, holding that the developer's participation in the proceedings amounted to a waiver of formal service of summons and that the delay was unexplained.
Court's Observations
Justice Gauri Godse examined whether the limitation period under Order VIII Rule 1 of the Code of Civil Procedure could begin without formal service of a writ of summons.
The Court noted that the developer had undoubtedly received copies of the plaint and annexures and had filed replies opposing interim relief. However, it found that no writ of summons had ever been served, no express waiver had been made, and no order had directed the defendant to file its written statement.
Rejecting the reasoning adopted by the trial court, the bench clarified that earlier decisions treating service of summons as a formality were rendered in different factual contexts concerning restoration of suits, not the commencement of limitation for filing written statements.
The bench observed,
"Mere filing of the Vakalatnama and reply to the application for interim relief would not mean that the period contemplated under Order VIII Rule 1 of the CPC would commence for filing the written statement."
The Court further stressed that denying a defendant the opportunity to file a written statement results in forfeiture of the right to defend the suit, making strict compliance with the legal requirements for commencement of limitation essential.
Decision
Allowing both writ petitions, the Bombay High Court quashed the City Civil Court's orders refusing to condone the delay and permitted M/s. Real Gem Buildtech Pvt. Ltd. to file its written statements in both suits within four weeks.
The Court also directed the trial court to dispose of the 2011 suits as expeditiously as possible and asked both parties to cooperate by avoiding unnecessary adjournments.
Case Details
Case Title: M/s. Real Gem Buildtech Pvt. Ltd. v. M/s. East Tradvest Pvt. Ltd. & Anr. (Connected with M/s. Real Gem Buildtech Pvt. Ltd. v. M/s. Mayuresh Structure Pvt. Ltd. & Anr.)
Case Number: Writ Petition No. 10181 of 2019 and Writ Petition No. 10076 of 2019
Judge: Justice Gauri Godse
Decision Date: 9 July 2026
