The Calcutta High Court dismissed an application filed to condone the delay of more than 120 days and allow the filing of the written statement. The Court observed that no extension of time beyond 120 days can be allowed in case of a suit instituted in the Commercial Division of this Court as the defendant forfeits its right to file the written statement.
Brief Facts:
The defendant no. 1 received the writ of summons on 20th June 2022 along with a copy of the plaint. By the said writ of summons, defendant No. 1 was directed to file the written statement within 35 days from the date of service. The defendant no. 1 did not file the written statement within such time. In the meantime, the plaintiff took out an application for amendment of the plaint. This application was allowed and a fresh summons was issued. The defendant again did not file the written statement. The plaintiff was directed to serve a copy of the plaint with the amendments allowed on 4th July 2022 inserted therein. On 15th March 2023 defendant no. 1 was served with a fresh copy of the plaint. On receipt of the copy of the plaint, defendant no. 1 found that the said defendant was never served with the amended plaint. The original and/or unamended plaint was served with the second writ of summons.
Contentions of the Plaintiffs:
The learned counsel for the Plaintiffs submitted that the 120-day period has expired long back. Even if 11th July 2022 is taken into consideration as the date of issuance of the writ of summons, no written statement has been filed within 120 days from the date of receipt of the writ of summons, and as such defendant no. 1 has forfeited its right to file the written statement.
Contentions of the Defendants:
The learned counsel for the Defendants submitted that the time to file the written statement did not commence with the receipt of the writ of summons as the amended plaint was served only on 15th March 2023. The time to file a written statement should, therefore, be computed from 15th March 2023 and not from the date of receipt of the first writ of summons. Going by such computations, defendant no. 1 says that it has approached this Court much prior to the expiry of 120 days from the date of receipt of a copy of the amended plaint i.e., 15th March, 2023.
Observations of the Court:
The Court noted that defendant No. 1 did not file its written statement pursuant to the receipt of a copy of the plaint along with the first writ of summons. The defendant no. 1 did not approach the court for an extension of the time for filing the written statement. Defendant no. 1 also did not file any written statement pursuant to receiving a copy of the plaint along with the second writ of summons. No application was filed even then for an extension of time to file a written statement. Thus a 120-day time period has elapsed from the receipt of the first writ of summons as also from the date of the receipt of the second writ of summons.
The Court observed that when an amendment is allowed, the defendant/defendants are given time to file additional written statements. In the instant case, the defendant was required to file the written statement pursuant to the receipt of the first writ of summons within the time frame provided thereunder. Defendant no. 1 upon the amendment being allowed had the right to file an additional written statement even if the unamended copy of the written statement was served along with the second writ of summons.
The Court said that the contention of defendant no. 1 could have been accepted for the purpose of filing an additional written statement if defendant no. 1 had filed the written statement either after receipt of the first writ of summons or upon receipt of the second writ of summons. In that situation, the Court could have exercised its discretion to permit defendant No. 1 to file an additional written statement. It is too late in the day for defendant no. 1 to contend that the time to file a written statement should be computed from 15th March 2023. No extension of time beyond 120 days can be allowed in case of a suit instituted in the Commercial Division of this Court as the defendant forfeits its right to file the written statement.
The decision of the Court:
The Calcutta High Court, dismissing the application, held that the prayer for an extension of time to file a written statement by condoning is refused
Case Title: Rajesh Kumar Sonthalia & Anr. vs ICICI Bank Limited & Ors.
Coram: Hon’ble Justice Arindam Mukherjee
Case no.: G.A. No. 4 of 2023
Advocate for the Plaintiffs: Mr. Debnath Ghosh
Advocate for the Defendants: Mr. Sakya Sen
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