Calcutta High Court
Dipankar Ghosh And Anr vs Cesc Limited on 15 November, 2022
OC-5
ORDER SHEET
IN THE HIGH COURT AT CALCUTTA
ORDINARY ORIGINAL CIVIL JURISDICTION
ORIGINAL SIDE
(COMMERCIAL DIVISION)
IA NO:GA 3 OF 2022
CS 108 OF 2022
DIPANKAR GHOSH AND ANR.
Versus
CESC LIMITED
BEFORE:
The Hon'ble JUSTICE ARINDAM MUKHERJEE
Date : 15th November, 2022.
Appearance:
Mr.Soumabho Ghose, Adv.
Ms.Tiana Bhattacharyya, Adv.
Ms. Anshumala Bansal, Adv.
Ms. Prarthana Singha Roy, Adv.
For plaintiffs/respondents
Mr. Subir Sanyal, Adv.
Mr. Rishav Dutt, Adv.
For CESC
The Court:- This is an application by the sole defendant for extension
of time to file written statement in a suit instituted in the Commercial
Division of this Court.
Admittedly, the writ of summons was served on 23rd May, 2022 and
the defendant entered appearance through an advocate on 9th June,
2022. In a suit instituted in the Commercial Division of this Court, the
written statement is required to be filed within 30 days from the date of
service of writ of summons. The time to file the written statement can be
extended on sufficient cause being shown subject to maximum up to 120
days from the date of receipt of the writ of summons. The time cannot be
extended for even a day beyond 120 days in view of the amended
provisions of Order VIII of the Code of Civil Procedure read with Section
16 of the Commercial Courts Act, 2015.
In the instant case, the written statement was verified as also affirmed
on 16th September, 2022. The application for extension of time to file the
written statement was also filed on 16th September, 2022. The Master's
Summons has been taken out on 16th September, 2022 and was made
returnable on 22nd September, 2022. The affidavit in support of the
Master's Summons was affirmed on 16th September, 2022. The defendant
says that the time to file the written statement be extended even by a
couple of days so that verified and affirmed written statement can be
formally filed in the department.
The plaintiffs oppose this application, inter alia, on the ground that no
time beyond 120 days to file the written statement can be permitted in
view of the provisions of Order VIII of the Code of Civil Procedure read
with Section 16 of the Commercial Courts Act, 2015.
The plaintiffs say that in view of the above mentioned provisions the
Courts are denuded with the authority to grant any extension beyond 120
days and this issue has been set to rest by the Hon'ble Supreme Court in
the judgment reported in (2019) 12 SCC 210 [ SCG Contracts (India)
Private Limited Vs. K.S. Chamankar Infrastructure Private Limited And
Others]. The plaintiffs also say that there is no explanation given by the
defendant in its application with regard to the delay in filing in the
application and in absence thereof the Court should not extend the time
to file the written statement. The plaintiffs on this point rely upon a
judgment dated 26th February, 2021 passed in GA 3,4,5,6,7,8,9 and 10 of
2021 filed in CS 177 of 2019 ( IL and FS Financial Services Ltd. Vs. Aditya
Khaitan And Ors.). The plaintiffs also say that the Master's Summons was
made returnable on 22nd September, 2022 when the 120 days period had
expired. There was no application as such for extension of time before the
expiry of 120 days.
After hearing the parties and considering the materials on record as
also the judgments cited at the Bar, I find that the written statement was
verified and affirmed on the 115th/116th day from the date of service of the
writ of summons. The Master's Summons being application for extension
of time was taken out on the 115th/116th day from the service of the writ
of summons. The service of the Master's Summons and its return is
specified under Rule 5 of Chapter VI of the Original Side Rules of this
Court. Although, there is a provision for short service but no litigant can
be penalised by inflicting a sentence by which his right to file written
statement is taken away. The learned Master had made the Summons
returnable on 22nd September, 2022 keeping three clear working days as
16th September, 2022 was a Friday. Considering the Master's Summons
to be the application it was made on 16th September, 2022 although made
returnable on 22nd September, 2022. The Master's Summons was
admittedly served on the learned advocate for the plaintiffs on 16th
September, 2022. The application was thus made prior to expiry of 120
days. Once an application is filed it is the prerogative of the Court to take
up and dispose of the same though the carriage of proceedings remain
with the applicant-petitioner. The applicant-petitioner at the highest can
make an endeavour to have the matter listed but ultimately it depends on
the Court. It is well settled that a party can approach the Court on the
last date of the limitation period. The defendant in the instant case may
have delayed in filing the written statement but have approached the
Court prior to expiry of 120 days. Although, the period of 120 days has
expired on 20th September, 2022 but was during pendency of the
application for extension of time to file written statement. A litigant, as it
is now well settled, cannot be made to suffer for any fault on the part of
the Court. The non-disposal of the application prior to expiry of 120 days
can be at the highest construed to be a wrong on the part of the Court for
not being able to dispose of the application within such time frame. In the
instant case the regular Bench was not available till 31st October, 2022 as
the Judge concerned being in the Port Blair Court. The business of the
Court which had the determination during the interregnum may have
been unable to take up the matter due to heavy pressure before the
annual vacation. The matter appeared in the monthly list of November,
2022 and though called on prior to this date could be heard only today as
both sides are present. The defendant cannot, therefore, be made to face
extreme hardship in such a case by denying it the right to file the written
statement. The explanation given in the application for extension of time
to file written statement may not be very satisfactory but only on such
ground when there is at least some explanation, I am not inclined to
penalise the defendant by denying the defendant of its right to file the
written statement.
The time to file the written statement is extended till 18th November,
2022. The extension is, however, subject to the defendant paying a cost
assessed at Rs.10,000/- to the plaintiffs either by separate cheques of
Rs.5,000/- each or to any of the plaintiffs for Rs. 10,000/- by 17th
November, 2022. The payment can be made through the learned advocate
for the plaintiffs. The department shall accept the written statement if the
written statement verified and affirmed on 16th September, 2022 if the
same is in proper format and in complete form and filed by such extended
time but subject to payment of costs.
The application being GA 3 of 2022 is accordingly disposed of.
(ARINDAM MUKHERJEE, J.)
sb.
