Calcutta High Court
Skm Agro Private Limited vs Paritosh Biswas on 15 September, 2022
CD -1
IN THE HIGH COURT AT CALCUTTA
Ordinary Original Civil Jurisdiction
ORIGINAL SIDE
IA NO. GA/2/2022
In CS/1/2022
SKM AGRO PRIVATE LIMITED
Vs
PARITOSH BISWAS
BEFORE:
The Hon'ble JUSTICE RAVI KRISHAN KAPUR
Date : 15th September, 2022.
Appearance:
Mr. Sanjay Kumar Baid, Adv.
Mr. S. Baid, Adv.
..for the plaintiff
Mr. Pranit Bag, Adv.
..for the defendant.
The Court : This is an application for condonation of delay in filing the
written statement.
This suit was instituted before the Commercial Division of this Court. The
suit was filed on 3rd January, 2022. The Writ of Summons was received by the
defendant on 2nd April, 2022. The defendant entered appearance on 8th April,
2022. 120 days from the date of receipt of the Writ of Summons expired on 20th
July, 2022. It is alleged that the written statement was finalized sometime in the
first week of July, 2022. This application was filed on 20th July, 2022 within the
expiry of the 120 day period from the service of the writ of summons.
On behalf of the defendant, it is contended that the primary grounds for
the delay in the filing of the written statement is that the defendant had taken
time to ascertain the documents required in the preparation of the written
statement. It is further contended that because of the ensuing Summer
Vacation, the defendant required some more time to gather the documents and
records pertaining to litigation. The written statement could not be filed within
the 30 day period. However, the same could only be finalized within 120 days
from the date of the receipt of the writ of summons. Thus, the upper limit of 120
days in presenting the written statement has been complied with.
On behalf of the plaintiff it is contended that, there has been unexplained
delay by the defendant in the filing of the written statement. The grounds as
narrated in the application are false and incorrect. There are no documents
which have been relied on by the defendant in preparing the written statement.
Hence, there is no explanation which justifies condoning the delay in filing of
the written statement.
I have considered the submissions made on behalf of the parties.
At the outset, the Commercial Courts, Commercial Division and
Commercial Appellate Division of High Courts Act, 2015 came into force on 23rd
October, 2015, incorporating certain amendment to the Code of Civil Procedure,
1908. In Order V, Rule 1, Sub-rule (1), for the second proviso, the amendments
read as follows:-
"Provided further 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 days, 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 and 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."
Order VIII Rule 1 has also introduced a new proviso which is as follows:-
"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 and twenty days from the date of service of
summons and on expiry of one hundred and 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."
Order VIII Rule 10 also reads as follows:-
"Procedure when party fails to present written statement called for by Court-
Where any party from whom a written statement is required Under Rule 1 or
Rule 9 fails to present the same within the time permitted or fixed by the Court,
as the case may be, the Court shall pronounce judgment against him, or make
such order in relation to the suit as it thinks fit and on pronouncement of such
judgment a decree shall be drawn up."
A conjoint reading of the aforesaid provisions would show that ordinarily a
written statement is to be filed within a period of 30 days from the date of
receipt of the writ of summons. However, an extended period of 90 days is
granted for which the Court is obliged to record for reasons in writing and upon
payment of such costs as it deems fit to allow such written statement to be filed.
The important introduction by way of aforesaid amendments is that, a
defendant forfeits the right to file the written statement and the Court is not
permitted to allow the written statement to be taken on record at the expiry of
120 days from the date of service of the writ of summons. The object is to
expedite the hearing of the suit. A Court is not permitted to allow the written
statement to be taken on record after the expiry of the 120 days period. SCG
Contracts (India) Private Limited versus K.S. Chamankar Infrastructure Private
Limited and Others reported in (2019) 12 Supreme Court Cases 210, Ambalal
Sarabhai Enterprises Limited versus K. S. Infraspace LLP., reported in (2020) 15
SCC 585.
It is true that in an adversarial system it is always better for a party to
contest a matter on merits rather than gain an advantage by way of not
permitting the defendant to file its pleading. To this extent, the consequences of
non filing of the written statement are severe. However, the intention of the Act
and the amended sections are categorically to bring an end to the dilatory
tactics adopted by a defendant in delaying the trial of the suit and taking long
adjournments. Thus, the discretion available with a Court under the previous
law is no longer available.
I find that though the defendant was unable to file the written statement
within 30 days, the written statement has ultimately been prepared within 120
days from the date of receipt of the writ of summons. The application for
extension of time to file the Written Statement was also filed within the 120
days. The ground for seeking extension of time to file the written statement is
that the defendant was unable to obtain the records necessary for preparing the
written statement. There is an additional ground of the ensuing Summer
Vacation which also caused some delay in the matter. Thus, I find that there are
cogent, satisfactory and sufficient grounds in the petition justifying condonation
of delay.
In my view, once the defendant is within 120 days period in filing the
written statement, the Court is not obliged to hold a mini-trial to adjudicate on
the issue of condonation. On the other hand, extensions should not be granted
in a routine and mechanical manner.
In view of the aforesaid, I find that there are sufficient grounds as to why
the defendant was unable to file the written statement within the 30 day period.
Thus, the prayer for condonation of delay within the 120 day period is
permitted. Accordingly, there shall be an order in terms of prayers (a) and (b) of
the Master's Summons. The defendant is permitted to file the written statement
upon payment of costs of Rs.25,000/- to the plaintiff.
With the aforesaid directions, GA/2/2022 stands disposed of.
(RAVI KRISHAN KAPUR, J.)
D.Ghosh
