Calcutta High Court
Dozco (India) Private Limited vs M/S.Gaurav Enterprises And Ors on 5 December, 2023
Author: Arindam Mukherjee
Bench: Arindam Mukherjee
OCD-7 & 8
IN THE HIGH COURT AT CALCUTTA
ORDINARY ORIGINAL CIVIL JURISDICTION
ORIGINAL SIDE
(COMMERCIAL DIVISION)
IA GA 4 OF 2023
IN
CS 105 OF 2023
IN THE MATTER OF:
DOZCO (INDIA) PRIVATE LIMITED
VS
M/S.GAURAV ENTERPRISES AND ORS.
IA GA 5 OF 2023
IN
CS 105 OF 2023
IN THE MATTER OF:
DOZCO (INDIA) PRIVATE LIMITED
VS
M/S. GAURAV ENTERPRISES AND ORS.
BEFORE:
The Hon'ble JUSTICE ARINDAM MUKHERJEE
Date : 5th December, 2023.
Appearance:
Mr. Jaydip Kar, Sr. Adv.
Mr. Debdeep Sinha, Adv.
For plaintiff
Mr. Rajarshi Dutta, Adv.
Mr. Amit Kumar Nag, Adv.
Ms. Ranjabati Ray, Adv.
For defendant nos.1 to 4(GA NO.4 OF 2023)
Mr. Chaya Gupta, Adv.
Mr. Saumava Mukherjee, Adv.
Mr. Sbhankar Chatterjee, Adv.
For defendant no.5 (GA NO. 5 OF 2023)
The Court : GA No. 4 of 2023 is an application by defendant nos.1, 2, 3
and 4 for extension of time to file written statement in a suit filed in the
Commercial Division of this Court.
GA No.5 of 2023 is an application also for extension of time to file written
statement but made by defendant no.5 in the same suit.
The two applications are taken up together for consideration as the facts
and the points of law involved are more or less identical.
The writ of summons in case of defendant nos.1 to 4 as also in case of
defendant no.5 had been received on 12th July, 2023. As prescribed under the
amended provisions of Order VIII of the Code of Civil Procedure, 1908 ( in short
CPC) which is made applicable to suits filed in the Commercial Division of this
Court in view of the provisions of Section 16 of the Commercial Courts Act, 2015
the written statement is required to be filed within 30 days from the date of
receipt of the writ of summons. In the instant case, the 30 days period from the
date of receipt of the writ of summons expired on 11th August, 2023. Neither the
defendant nos. 1 to 4 nor the defendant no.5 filed their respective written
statements within such 30 days period. The aforesaid two sets of defendants did
not take any steps to seek extension of time to file their respective written
statements and waited till 16th November, 2023 to affirm their respective written
statements. 16th November, 2023, according to the defendant nos.1 to 4 and
defendant no.5 being the re-opening day after the annual vacation is the 120th
day from the date of receipt of the written statements as the 120th day expired
during the annual vacation of this Court for which the provisions of Section 4 of
the Limitation Act, 1963 got attracted.
The defendant nos. 1 to 4 have affirmed the application for extension of
time to file written statement (GA no.4 of 2023) on 17th November, 2023 i.e. on
the 121st day from the date of receipt of the writ of summons even if the benefit of
Section 4 of the Limitation Act, 1963 is given to the said defendants. However,
since the defendant nos. 1 to 4 did not affirm the application on the reopening
date when the time expired in between the annual vacation when this Court was
closed, the defendant nos. 1 to 4 are not entitled to the benefit of Section 4 of the
Limitation Act, 1963. The defendant no.5 has also affirmed the application for
extension of time to file written statement (GA No.5 of 2023) on 17th November,
2023 and on the similar ground is not entitled to the benefit of Section 4 of the
Limitation Act, 1963. The amended provisions of Order VIII of CPC as applicable
to suits filed in the Commercial Division makes it clear that the written statement
has to be filed and not affirmed.
The Courts have given benefit to a defendant when the written statement
is affirmed within 120th day in the event the application for extension of time is
also made within 120th day.
In the instant case, the application being GA 4 of 2023 has been filed on
20th November, 2023 while the Master's Summons in respect thereof has been
taken out on 18th November, 2023. In case of GA 5 of 2023, the same has been
filed by defendant no.5 also on 20th November, 2023 and the Master's Summons
has also been taken out on 18th November, 2023.
It is settled position that the Master's Summons is the application and the
petition/application is treated as an affidavit in support thereof as the grounds.
Thus the application for extension of time to file written statement in both the
cases have been made beyond 120 days either going by the date of taking out of
the Master's Summons or by the date of affirmation of such of the affidavit in
support of the Master's Summons. The applications have been filed in the
department on 20th November, 2023.
The defendant no.1 to 4 as also the defendant no.5 say that this Court in
two cases have permitted filing of the written statement when the same was
verified and affirmed on the 120th day.
Referring to an order dated 19th May, 2023 passed in Pratishtha
Commercial Private Limited Vs Orissa State Co-operative Milk Producer's
Federation Limited ( 2023 SCC OnLine Cal 1404) and an order dated 4th
November, 2022 passed in M/s. Neo Carbons Pvt. Ltd. Vs. National Insurance
Company Limited, it is argued on behalf of the defendants that in both the cases
there was no application for extension of time to file the written statement, yet
the Court permitted the written statement to be filed when the same was affirmed
on the 120th day. The defendants say that the same benefit should be extended to
the defendants subject to put in the defendants on terms.
In Neo Carbons (supra) and Pratishtha Commercial (supra), applications
challenging the maintainability of the suit filed by the defendants were on board,
the hearing of which could not be completed before expiry of 120 days from the
date of receipt of the Writ of Summons. It has been a consistent view of the
Courts that in a case where the maintainability of the suit is questioned, the
same goes to the root of the jurisdiction of the Court and the
defendant/defendants may not be called upon to file written statement if their
applications succeed. In such a scenario, the filing of written statement is kept
withheld by the defendant/defendants. Although, there is also a contrary view
but the same are all in respect of suits filed in the Ordinary Original Civil
Jurisdiction of this Court wherein the amended provisions of Order VIII of CPC
which are applicable in respect of suits filed in the Commercial Division are not
applicable.
Since on expiry of 120 days from the date of receipt of the written
statements in a suit instituted in the Commercial Division of this Court, the
defendant forfeits its right to file the written statement, the view of keeping the
filing of the written statement pending till a decision in the demurer application
is arrived at is not a prudent approach, according to me. The statutory provisions
as in Order VIII Rule 10 of CPC which has been explained and accepted by the
Hon'ble Supreme Court in the judgment reported in (2019) 12 SCC 210 [SCG
Contracts India (P) Ltd. Vs. K.S. Chamankar Infrastructure (P) Ltd.] clearly
stipulates that the time cannot be extended beyond 120 days. In Neo Carbons
(supra) and Pratishtha Commercial (supra), while the hearing of the demurer
applications were continuing, the 120th day from the date of receipt of writ of
summons was about to expire. In such situation, on the prayer of the defendant,
the written statements were accepted which were affirmed on the 120th day that
too without prejudice to the rights of the parties. In the instant case, the facts are
different. Neither the defendant nos.1 to 4 nor the defendant no.5 has made any
application for rejection of plaint challenging the maintainability of the suit. On
the contrary they appeared in the plaintiff's injunction application and are
contesting the same by filing affidavits.
The defendant nos.1 to 4 as also defendant no.5 were not vigilant about
their right and had taken a serious matter like filing of the written statement
when the right to do so stands forfeited on expiry of a particular time period very
reluctantly and, as such, affirmed the written statement on the reopening day.
No approach was made by either of the defendants to bring to the notice of the
Court that the 120th day from the date of receipt of the writ of summons being
the outer limit for filing the written statement had expired during the vacation
and, as such, it has been affirmed on the reopening day with a prayer to allow
the filing of the same. The application for extension of time is affirmed one day
after 16th November, 2023 being the reopening day and has been filed only on
20th November, 2023. In Neo Carbons (supra) and Pratishtha Commercial
(supra), since the Court was not able to decide the demurer application before
expiry of the period of 120 day from the date of receipt of the writ of summons,
the written statements affirmed on the 120th day were allowed to be filed. The
factual departure in the instant case to that in Neo Carbons (supra) and
Pratishtha Commercial (supra), does not permit this Court to extend the same
benefit to the defendant nos.1 to 4 and defendant no.5. That apart the
defendants are not rustic litigants. They have contested the injunction
application in a commercial matter and it should be presumed that they were
advised about the time frame for filing written statement in absence of any
contrary statement on record. The conduct of the defendants also does not allow
any sympathetic consideration as in the case of Prakash Corporates Vs. Dee Vee
Projects Limited reported in 2022 (5) SCC 112.
In the aforesaid facts and circumstances, GA 4 of 2023 and GA 5 of 2023
are dismissed.
Since I have not called for any affidavits in either of the two applications,
the allegations contained therein are deemed to have not been admitted by the
plaintiff.
(ARINDAM MUKHERJEE, J.)
sb/
