JYOTI STRUCTURES LTDversusAFRICA POWER COMPANY CC

                                                                        WP-10803-26.DOC

                           IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                                   CIVIL APPELLATE JURISDICTION

                                    WRIT PETITION NO. 10803 OF 2026


                   Jyoti Structures Limited
                   a Company incorporated under the
                   Companies Act, 1956, and having
                   its office at 6th Floor, Valecha Chambers,
                   New Link Road, Andheri (W), Mumbai,
                   Maharashtra, India – 400053
                   through its Authorized Signatory
                   Mr. Abdul Hameed Khan.                                ...Petitioner

                           Versus

                   Africa Power Company CC,
                   a close corporation duly registered
                   and incorporated under the Close
                   Corporations Act 69 of 1984,
                   having its registered address at
                   40 Potgieter Street, Alrode, 1451,
                   South Africa, through its authorized
                                                                      …Respondent
                   representative Mr. Pradeep Kamble.
                                                                     _________
                   _____________ _______ ___

                   Mr. Ashish Kamat, Senior Counsel, a/w Mr. Ashwin Bhadang,
                   Mr. Abhilash Chaudhary, Mr. Amandeep Saini, i/b Shardul
SAINATH            Amarchand Mangaldas & Co., for the Petitioner.
SANJAY
BODKHE
Digitally signed
                   Ms. Megha Chandra, a/w Mr. Vijay Purohit, Ms. Nikita
by SAINATH
SANJAY BODKHE
Date: 2026.09.11
                        Bangera, Mr. Abhilash Gaur, i/b P & A Law Offices,
21:47:55 +0530
                        for the Respondent.
                   _____________________________________

                                            CORAM :         N. J. JAMADAR, J.
                                            DATE      :     07th September 2026




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JUDGMENT:


1.      In view of the short question that arises for consideration,

Rule. Rule made returnable forthwith, and, with the consent of

learned Counsel for the parties, heard finally.


2.      By this petition under Article 227 of the Constitution of

India, the Petitioner – original Defendant No.1 takes exception

to an order dated 18th June, 2026, passed by the learned

Judge, Commercial Court at Dindoshi, Mumbai in Notice of

Motion        No.4044/2025   in   Commercial    Suit   No.86/2025,

whereby the said Notice of Motion seeking condonation of delay

in filing the written statement came to be rejected on the

premise that, the Notice of Motion was filed on 121 st day from

the service of the writ of summons on the Defendant No.1.


3.      The background facts leading to this petition, can be

summarized as under :-


4.1     The respondent – plaintiff has instituted a Commercial

Suit seeking recovery of the amounts due and payable under

the agreements purportedly executed by the Defendant No.1 in

favour of the plaintiff. The writ of summons was served on the

Defendant No.1 on 22nd May, 2025.


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4.2     Defendant No.1 claims that, the initial 30 days time limit

for filing the written statement expired on 21 st June, 2025. The

extended 90 days period provided by the Order VIII Rule 1 of

the Code of Civil Procedure, 1908, (“Code, 1908”), in its

application to the commercial disputes under the Commercial

Courts Act, 2015, would have expired on 19 th September, 2025.

On that day itself, i.e. 120th day from the service of the writ of

summons, the Defendant No.1 filed the Notice of Motion

alongwith the written statement seeking condonation of delay

in filing the written statement. It was the contention of the

Defendant No.1 that, the date of service of writ of summons i.e.

22nd May, 2025, was required to be excluded in computing the

120 days period for filing the written statement.


4.3     By the impugned order, the learned Judge, Commercial

Court, was persuaded to reject the application observing, inter

alia, that, the date of service of the writ of summons, cannot be

excluded while computing the maximum period prescribed for

filing the written statement, as the provisions contained in

Section 9 of the General Clauses Act, 1897, (“Act, 1897”) had no

application    to   a   commercial    suit   instituted    under     the

Commercial Courts Act, 2015 (“Act, 2015”).


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4.4     The learned Judge, Commercial Court drew support to

his view from an order passed by this Court in the case of

Ashish Pradyuman Bhankaria & ors. Vs. Amit Pradyuman

Bhankaria & ors.1.


4.5     Being aggrieved, the Defendant No.1 has invoked the writ

jurisdiction of this Court.


4.      I have heard Mr. Ashish Kamat, the learned Senior

Advocate for the Petitioner, and Ms. Megha Chandra, the

learned Counsel for the Respondent, at some length. With the

assistance of learned Counsel for the parties, I have perused

the material on record.


5.      The short question that crops up for consideration is,

whether the day of service of the writ of summons on the

defendant, is required to be excluded while computing the time

prescribed under Order VIII Rule 1 of the Code, 1908 for filing

the written statement ?


6.      Mr. Kamat, the learned Senior Advocate for the petitioner,

submitted     that   the   learned    Judge,   Commercial   Court,

committed an error of law in holding that, the provisions

1       IA/3447/2022 in Comm. Suit/600/2018
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contained in Section 9 of the Act, 1897 would not govern the

computation of time for filing the written statement in a

commercial suit before the Commercial Court. The provisions

contained in Section 9 of the Act, 1897 govern any Central Act

or Regulation made after the commencement of the former Act.

The principle incorporated in Section 9 of the Act, 1897 that,

where the words “from” and “to” are used, the first day is to be

excluded and the last day is to be included, is applied to

diverse enactments, even where the provisions contained in the

Limitation Act, 1963, are not attracted. To lend support to this

submission, Mr. Kamat placed reliance on the judgments of the

Supreme Court in the cases of Tarun Prasad Chatterjee Vs.

Dinanath Sharma2, and M/s. Anvita Auto Tech Works Pvt. Ltd.

Vs. M/s. Aroush Motors & anr.3. Reliance was also placed on a

Division Bench judgment of the Delhi High Court in the case of

Next Gen Pharma India Pvt. Ltd. & anr. Vs. CD Pharma India

Pvt. Ltd.4


7.      Mr. Kamat would urge, the learned Judge, Commercial

Court, misdirected himself in placing reliance on the order

dated 14th October, 2022 in the case of Ashish Bhankaria

2       (2000) 8 SCC 649
3       2025 INSC 1202
4       FAO(OS) (COMM) 129/2025 & CM APPL. 51255/2025 dt. 08/09/25.
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(supra), which was rendered in completely a different fact-

situation. In that case, this Court held that the provisions of

Section 9 of the Act, 1897 and Section 12(1) of the Limitation

Act, 1963, are inapplicable as the period of limitation has been

determined by the Supreme Court in exercise of its power

under Article 142 of the Constitution of India when, on account

of Covid-19 pandemic situation, the period of limitation was

suspended.


8.      Per contra, Ms. Chandra, the learned Counsel for the

respondent – plaintiff, submitted that, the trial Court has

taken a correct view of the matter. The object of enacting the

Act, 2015, is required to be kept in view while determining the

aspect of applicability of the provisions contained in Section 9

of the Act, 1897.


9.      A two-pronged submission was canvassed by Ms. Chandra.

Firstly, in view of the provisions contained in Section 21 of the

Act, 2015, the provisions contained therein have an overriding

effect over anything inconsistent therewith contained in any other

law or in the instrument having effect by virtue of any law for the

time being in force. Resultantly, the provisions contained in Order

VIII Rule 1 of the Code, 1908, as amended by the Act,


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2015, will prevail over the provisions contained in the Act,

1897. Therefore, the benefit of the provisions contained in

Section 9 of the Act, 1897 would not be available to a

defendant.


10.     Secondly, Ms. Chandra submitted that, it is well settled

that, in consonance with the object of the Act, 2015, the

provisions therein are required to be construed strictly. To

buttress this submission, Ms. Chandra placed reliance on the

judgment of the Supreme Court in the case of Ambalal

Sarabhai Enterprises Ltd. Vs. K. S. Infraspace LLP & anr. 5,

wherein it was enunciated that, in the matter of determining

the jurisdiction of the Commercial Court, the provisions

contained therein are required to be construed strictly.


11.     I have given anxious consideration to the submissions

canvassed across the bar. The provisions contained in Order

VIII Rule 1 of the Code, 1908 in its application to a suit under

the Act, 2015, read as under :-

                              ORDER VIII




5       (2020) 15 SCC 585
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        “[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 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 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.”


12.     From a bare perusal of the aforesaid provision, it

becomes abundantly clear that, the Parliament has substituted

the proviso to Rule 1 of Order VIII of the Code, 1908. Under the

main part of Rule 1, like in an ordinary suit, the defendant is

enjoined to file written statement within 30 days from the date

of service of summons on him. The proviso to Rule 1, however,

provides that, the defendant who fails to file the written
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statement in a Commercial Suit within the said period of 30

days, shall be allowed to file the written statement on such

other day, as may be specified by the Court, but which shall

not be later than 120 days from the date of service of summons

and on the expiry of 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.

13.     The Parliament has, thus, provided the consequences

that ensue upon the failure of the defendant to file written

statement within 120 days from the date of service of the writ

of summons. First, the defendant forfeits the right to file the

written statement. Second, the Court is precluded from

permitting such defendant to file the written statement.


14.     In the context of the controversy at hand, what is of

material significance is the use of the word “from” in the main

part of Rule 1 as well as twice in the proviso to Rule 1. This use

of the word “from” assumes salience in the determination of the

question, whether the date of service of the writ of summons is

to be included or excluded in computing the time prescribed

and limited by Order VIII Rule 1 of the Code, 1908.



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15.     At this stage, the provisions contained in Section 9 of the

Act, 1897 deserve to be extracted. They read as under :-



              “9. Commencement and termination of time. - (1) In
              any [Central Act] or Regulation made after the
              commencement of this Act, it shall be sufficient, for
              the purpose of excluding the first in a series of days or
              any other period of time, to use the word “from”, and,
              for the purpose of including the last in a series of days
              or any other period of time, to use the word “to”.
              (2) This section applies also to all [Central Acts] made
              after the third day of January, 1868, and to all
              Regulations made on or after the fourteenth day of
              January, 1887.”


16.     In plain terms, Section 9 of the Act, 1897 provides that,

while computing the period of limitation the first day in a series

of days shall be excluded and the last day in a series of days

shall be included where the words “from” and “to”, respectively,

are used in any Central Act or Regulation, enacted after the

commencement of the Act, 1897. In a sense, Section 9 of the

Act, 1897 gives statutory recognition to the well established

principle applicable to the construction of statutes prescribing

a timeframe, that, ordinarily, in computing the time prescribed,

the rule is to exclude the first and include the last day.




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17.     The aforesaid principle has received a wide acceptance

and judicial imprimature          in a number of decisions across

various       types   of   legislations   wherein   the   question    of

computation of time, arose for consideration, even where the

provisions contained in the Limitation Act, 1963, were not

attracted.


18.     In the case of State of H. P. & anr. Vs. M/s. Himachal

Techno Engineers & anr.6, wherein the Supreme Court

considered the aspect of limitation for filing a petition under

Section 34 of the Arbitration and Conciliation Act, 1996 (“Act,

1996”) to set aside an arbitral award, which also precludes the

Court from condoning the delay beyond 30 days of the initial

three months period, the Supreme Court resorted to the

provisions contained in Section 9 of the Act, 1897 to hold that,

the date on which the award was received by the party who

applies for setting aside of the award shall be excluded for

computing the period of limitation for filing a petition under

Section 34 of the Act, 1996.


19.     In the case of Tarun Prasad Chatterjee (supra), the

applicability of the provisions contained in Section 9 of the Act,



6       (2010) 12 SCC 210
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1897 to an Election Petition under Section 81 of the

Representation of the People Act, 1951 (“RP Act, 1951”) was

examined by a three-Judge Bench of the Supreme Court. In the

said case, a contention was raised on behalf of the appellants

therein that, in view of the specific language employed in

Section 81(1) of the RP Act, 1951, the words “within” and “from”

used therein would indicate that, Section 9 of the Act, 1897

had no application to the Election Petition. Repelling the

submission, the Supreme Court enunciated the law as under :-

         “10. Section 9 of the General Clauses Act, 1897 gives
         statutory recognition to the well-established principle
         applicable to the construction of statutes that ordinarily
         in computing the period of time prescribed, the rule
         observed is to exclude the first and include the last day.
         11.   In Halsbury Laws of England, 37th Edn., Vol. 3, p.
         92, it is stated as follows:-

               “Days included or excluded - When a period of time
         running from a given day or even to another day or event
         is prescribed by law or fixed as contract, and the
         question arises whether the computation is to be made
         inclusively or exclusively of the first-mentioned or of the
         last- mentioned day, regard must be had to the context
         and to the purposes for which the computation has to be
         made. Where there is room for doubt, the enactment or
         instrument ought to be so construed as to effectuate and
         not to defeat the intention of Parliament or of the parties,
         as the case may be. Expressions such as "from such a
         day" or "until such a day" are equivocal, since they do
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         not make it clear whether the inclusion or the exclusion
         of the day named may be intended. As a general rule,
         however, the effect of defining a period in such a manner
         is to exclude the first day and to include the last day."

         12.   Section 9 says that       in any Central Act          or
         Regulation made after the commencement of the General
         Clauses Act, 1897, it shall be sufficient for the purpose of
         excluding the first in a series of days or any other period
         of time, to use the word "from", and, for the purpose of
         including the last in a series of days or any period of
         time, to use the word "to". The principle is that when a
         period is delimited by statute or rule, which has both a
         beginning and an end and the word "from" is used
         indicating the beginning, the opening day is to be
         excluded and if the last day is to be excluded the word
         "to" is to be used. In order to exclude the first day of the
         period, the crucial thing to be noted is whether the
         period of limitation is delimited by a series of days or by
         any fixed period. This is intended to obviate the
         difficulties or inconvenience that may be caused to some
         parties. For instance, if a policy of insurance has to be
         good for one day from the 1st January, it might be valid
         only for a few hours after its execution and the party or
         the beneficiary in the insurance policy would not get
         reasonable time to lay claim, unless the 1st January is
         excluded from the period of computation.”

                                                (emphasis supplied)


20.     Another three-Judge bench of the Supreme Court in the

case of Econ Antri Ltd. Vs. Rom Industries Ltd. & anr. 7

7       AIR 2013 SC 3283
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examined          the   question    of     applicability   of   the   principle

contained in Section 9 of the Act, 1897 to the computation of

period of one month prescribed under Section 142(b) of the

Negotiable Instruments Act, 1881 (“N. I. Act, 1881”) for filing the

complaint for an offence punishable under Section 138 of the

N. I. Act, 1881. The Supreme Court expressly approved the

enunciation of law in the case of Tarun Prasad Chatterjee

(supra), and, thereafter, exposited the position as under :-

              “20.      As the Limitation Act is held to be not
              applicable to N. I. Act, drawing parallel from Tarun
              Prasad Chatterjee where the Limitation Act was held
              not applicable, we are of the opinion that with the aid
              of Section 9 of the General Clauses Act, 1897 it can be
              safely concluded in the present case that while
              calculating   the   period    of   one    month   which    is
              prescribed under Section 142(b) of the N. I. Act, the
              period has to be reckoned by excluding the date on
              which the cause of action arose. It is not possible to
              agree with the counsel for the respondents that the
              use of the two different words ‘from’ and ‘of’ in Section
              138 at different places indicates the intention of the
              legislature to convey different meanings by the said
              words.”
                                                       (emphasis supplied)


21.     The three-Judge Bench approved the correctness of the

view recorded by the Supreme Court in the case of M/s. Saketh


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India Ltd. & ors. Vs. M/s. India Securities Ltd. 8 In that case,

the Supreme Court had considered the question whether for

calculating the period of one month which is prescribed under

Section 142(b) of the N. I. Act, 1881, the period has to be

reckoned by excluding the date on which the cause of action

arose ?

22.     Applying the principle of excluding the day from which

the period is to be reckoned, incorporated under Section 12 of

the Limitation Act, 1963 and Section 9 of the Act, 1897 and

following its earlier decision in the case of Haru Das Gupta Vs.

State of W. B.9, the Supreme Court held that, there was no

reason for not adopting the rule enunciated in the said case

which was consistently followed and which was adopted in the

Act, 1897 and the Limitation Act, 1963. Ordinarily, in

computing the time, the rule to be observed was to exclude the

first day and to include the last day.


23.     In the light of the aforesaid enunciation of law, reverting

to the facts of the case, given the use of the word “from” in the

main part of Rule 1 and twice in the proviso to Rule 1 of Order

VIII of the Code, 1908, the provisions contained in Section 9 of


8       AIR 1999 SC 1090
9       (1972) 1 SCC 639
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the Act, 1897 are clearly attracted. It is pertinent to note that,

the provisions contained in Section 9 of the Act, 1897 have

been made applicable even where the different words like

“within”, “of” and “after” were used to denote the time. Thus,

the use of the word “from” squarely brings the case within the

ambit of the provisions contained in Section 9 of the Act, 1897.


24.     The submission on behalf of the Respondent that, having

regard to the object of the Act, 2015 and the provisions

contained in Section 21 of the Act, 2015, the provisions

contained in Section 9 of the Act, 1897, have no application,

does not carry much substance. By virtue of the non obstante

clause contained in Section 21 of the Act, 2015, the provisions

contained therein, will prevail over anything inconsistent

contained in any other law for the time being in force. However,

the provisions contained in Section 9 of the Act, 1897, do not

contain anything inconsistent with the provisions contained in

the Act, 2015. Section 9 of the Act, 1897 incorporates the rule

of construction of statute in the matter of computation of time.

Section 9 of the Act, 2015, does not provide a different period of

time for filing the written statement, nor does it permit the

extenstion of time to file the written statement beyond the one

prescribed under Order VIII Rule1 of the Code, 1908.
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25.     It is well recognized that, a non obstante clause cannot be

given a wider interpretation than the intendment of the

legislature. A non obstante clause must be given effect to, to

the extent the Parliament intended and not beyond the same.

26.     A useful reference, in this context, can be made to a

judgment of the Supreme Court in the case of Central Bank of

India Vs State of Kerala and Ors ,10 wherein the following

observations were made:

        “103. A non obstante clause is generally incorporated in a
        statute to give overriding effect to a particular section or the
        statute as a whole. While interpreting non obstante clause, the
        Court is required to find out the extent to which the legislature
        intended to do so and the context in which the non obstante
        clause is used. This rule of interpretation has been applied in
        several decisions.”



27.     The second limb of the submission of Ms. Chandra that,

the provisions contained in the Act, 2015 are required to be

construed strictly and, thus, construed the benefit of the

provisions contained in Section 9 of the Act, 1897 cannot be

extended, also does not merit countenance.


28.     Undoubtedly, the time frame prescribed by the Order VIII

Rule 1 of the Code, 1908, in its application to the Act, 2015, is

10      (2009) 4 SCC 94.
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required to be construed strictly. Under no circumstances, after

the expiry of 120th day from the service of the writ of summons,

can a defendant be permitted to file the written statement.

However, the question as to whether the period of 120 days has

expired or not, is not a matter of strict or liberal construction of

the provisions of the Act, 2015. It is simply a matter            of

computation of the period, applying the well established

principle incorporated in Section 9 of the Act, 1897, in the

matter of computation of time. The strict construction of the

provisions contained in the Act, 2015, does not imply that, the

provisions of the Act, 2015, shall not be correctly construed. In

other words, the strict construction cannot be equated with an

erroneous interpretation of the provisions.


29.     The learned Judge, Commercial Court, does not seem to

have adverted to the import of the provisions contained in

Section 9 of the Act, 1897, in a correct perspective. The reliance

on an order passed by this Court in the case of Ashish

Bhankaria (supra), to arrive at the conclusion that, the day of

service of writ of summons is not required to be excluded, was

misplaced.

30.     In the said case, this Court was confronted with the

question whether 01st March, 2022, the date of commencement
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of the extended period granted by the Supreme Court, by

orders in Suo Motu Writ Petition whereby in the wake of the

Covid-19 pandemic the period of limitation was suspended, is

to be excluded while computing the period of 90 days from 01 st

March, 2022. In that context, this Court observed that, since

the period of limitation for filing the written statement had

been determined by the order of the Supreme Court, the

decision in the case of M/s. Saketh India Ltd. (supra), was

inapplicable to the said case.


31.     In the case at hand, as noted above, the provisions

contained in order VIII Rule 1 of the Code, 1908 properly fall

within the ambit of Section 9 of the Act, 1897, as the word

“from” has been specifically used therein. Thus, the reliance on

the order passed by this Court in the case of Ashish Bhankaria

(supra), to sustain the view that, the day of service of writ of

summons cannot be excluded in computing the 120 days

period appears to be erroneous.


32.     The conspectus of the aforesaid consideration is that, as

the principle that, in computing the period of limitation the

first day is to be excluded, has been consistently followed

across the spectrum of legislations, even where the provisions


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contained in Section 12 of the Limitation Act, 1963, were not

attracted, in computing the time for filing the written statement

in a suit governed by the Act, 2015, also, the day of service of

writ of summons is required to be excluded.


33.     On the facts, there is not much controversy that, if the

date of service of the writ of summons is excluded, the Notice

of Motion alongwith written statement was filed on the 120 th

day from the service of writ of summons.


34.     Ms. Chandra, the learned Counsel for the Respondent,

fairly submitted that, in the other petitions arising out of the

same suit, this Court has condoned the delay in filing the

written statement on account of identical reasons.

35.     In the affidavit in support of the notice of motion, the

petitioner has adverted to the circumstances, of the petitioner –

Company           having   undergone     the   Corporate     Insolvency

Resolution Process, and the resultant difficulties in obtaining

the information and documents to prepare and file the written

statement.

36.           Thus, as the delay in filing the written statement on

behalf of other defendants, has been condoned for substantially




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the same reasons, the delay in filing the written statement qua

the Defendant No.1 also deserves to be condoned.


37.     Hence, the following order :-

                               ::ORDER::


       (i)      The Writ Petition stands allowed.

       (ii)     The impugned order stands quashed and set

       aside.

       (iii)    The delay in filing the written statement stands

       condoned.

       (iv)     The written statement be taken on record.

       (v)      Rule made absolute in the aforesaid terms.


                                             [N. J. JAMADAR, J.]




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