Calcutta High Court
Usha Devi Chokhani And Anr vs Kusum Surekha And Anr on 14 September, 2022
OC-11 ORDER SHEET
IN THE HIGH COURT AT CALCUTTA
Ordinary Original Civil Jurisdiction
ORIGINAL SIDE
IA No. GA/2/2022
In CS/263/2021
USHA DEVI CHOKHANI AND ANR.
Versus
KUSUM SUREKHA AND ANR.
BEFORE:
The Hon'ble JUSTICE ARINDAM MUKHERJEE
Date : 14th September, 2022.
Appearance:
Mr. Chayan Gupta, Adv.
Mr. Dwip Raj Basu, Adv.
Mr. Shashwat Nayak, Adv.
... for the petitioners.
Mr. Rudraman Bhattacharyya, Adv.
Mr. Satyaki Mukherjee, Adv.
Mr. Lalit Baid, Adv.
Mr. Tomoghna Saha, Adv.
... for the respondents.
The Court: This is an application filed by the defendants in the
suit. The defendants waived service of the Writ of Summons on 25th
January, 2022 in course of the hearing of an interlocutory application
filed by the plaintiff. The copy of the plaint was served on the defendants
on 16th February, 2022. The defendants had prepared a joint written
statement and intended to file the same on 119th day from 16th February,
2022 being the date on which the copy of the plaint have been served.
The plaintiff objected to the filing on the ground that 120 days time
period from 25th January, 2022 had expired before the written statement
was intended to be filed and as such no written statement can be filed by
the defendants. This has necessitated the filing of the instant
application for extension of time to permit the filing of the written
statement by the defendants. The defendants have given certain
explanations for the delay owing to the health reason of the defendants
and other reasons for the delay in filing the written statement beyond 30
days from 16th February, 2022 being the date on which the plaint was
received by them. The dates respectively on which the defendants had
waived service of the Writ of Summons and the date on which the copy of
the plaint had been served on the defendants are not in dispute. The
plaintiff says that the defendant was all along aware about the filing of
the suit and had contested the interlocutory application filed by the
plaintiffs even after service of the copy of the plaint. There was as such
no impediment according to the plaintiff, in filing the written statement
within 30 days. The delay, according to the plaintiff is intentional and
this Court should disbelieve the defendants. The written statement
should not, therefore, be allowed to be filed particularly when there is a
statutory embargo under the Commercial Courts Act, 2015 and
extension is not for mere asking. The fact remains that till up to 31st
March, 2022 by virtue of the orders passed by the Hon'ble Supreme
Court the rigors of the limitation period under the statute were not made
applicable in the judicial proceedings. A considerable period of time
between 25th January, 2022 when the service of the Writ of Summons
was waived and from the date of service of the copy of the plaint on 16th
February, 2022 and upto 31st March, 2022 passed away with the
limitation period not being in operation. The plaintiff has not been able
to demonstrate that a copy of the plaint has been served on the
defendants prior to 16th February, 2022 though the plaintiff says that the
defendants were all along aware about the proceedings. The plaintiff has
relied upon the judgments reported in 2021 SCC Online, Delhi
5398(HT Media Ltd. & Anr. Vs. Brainlink International, Inc. & Anr.)
and 2022 SCC Online, Delhi 913 (Exide Industries Limited Vs.
Krishna International & Ors.) and the order of the Hon'ble Supreme
Court dated 14th March, 2022. The judgments of the Delhi High Court in
HT Media (Supra) and Exide Industries (Supra) are not applicable in
the instant case in view of the factual difference between the cases
considered in those two judgments and the case in hand. The order of
the Hon'ble Supreme Court which arises out of HT Media (Supra) is also
not applicable for the same reasons. It is difficult to conceive a situation
that a party should file the written statement without actually getting a
copy of the plaint even if he/she has waived service of writ of summons
and is contesting the plaintiff's interlocutory application. In the instant
case, admittedly, the copy of the plaint was served on 16th February,
2022 and the written statement was intended to be filed by 120 days
therefrom. The explanation given by the defendants with the supporting
documents for medical grounds for which the defendants were prevented
from filing the written statement sufficiently explains the reasons for
delay beyond 30 days either from 25th January, 2022 or from 16th
February, 2022 and the subsequent period of delay.
I am satisfied with the explanations given by the defendants for
being prevented from filing the written statement till 30 days from 25th
January, 2022 and 16th February, 2022. I am also satisfied with the
explanation given by the defendants for filing written statement on the
119th days from 16th February, 2022 that is date on which a copy of the
plaint was actually served.
The Department is directed to accept the joint written statement of
the defendants and register the same within a period of 10 days from
date.
The suit is one in the Commercial Division and has to be further
proceeded within specific time frame as per the provisions of The
Commercial Courts Act, 2015 and the amendments made by the said Act
to the provisions of Code of Civil Procedure, 1908.
The inspection and discovery of documents shall be completed by
15th November, 2022.
The parties shall then take steps to make the suit ready for
hearing.
The application being GA/2/2022 is accordingly disposed of
without any order as to costs.
(ARINDAM MUKHERJEE, J.)
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