Calcutta High Court
Soneko Marketing Pvt. Ltd vs Rashmi Metaliks Ltd on 17 March, 2023
OD-1 IN THE HIGH COURT AT CALCUTTA
Ordinary Original Civil Jurisdiction
ORIGINAL SIDE
IA No. GA-6/ 2022
in
CS No. 25 of 2014
Soneko Marketing Pvt. Ltd.
-vs-
Rashmi Metaliks Ltd.
BEFORE:
THE HON'BLE JUSTICE RABINDRANATH SAMANTA
Date: 17th March, 2023
Appearance:
Mr. Ratnanko Banerji, Sr. Adv.
Mr. K.R. Thakkar, Adv.
Mr. Debdut Mukherjee, Adv.
Mr. Kanishk Kejriwal, Adv.
Mr. Gaurab Kumar Das, Adv.
Mr. Mekghajit Mukherjee, Adv.
... for the petitioner/defendant
Mr. Debnath Ghosh, Adv.
Mr. Sarosij Dasgupta, Adv.
Mr. Biswaroop Mukherjee, Adv.
Mrs. Smita Mukherjee, Adv.
... for the respondent/ plaintiff
The petitioner by taking out this application has prayed for setting
aside the order dated 16th August 2022 by which the suit being C.S. 25
of 2014 was decreed exparte against the petitioner.
B.M.
To put precisely, the petitioner states that the respondent as
plaintiff, filed the aforesaid suit against it under order XXXVIII of the
Code of Civil Procedure praying, inter allia, the following reliefs:
a) Decree for a sum of Rs. 49,97,024.45/- in terms of paragraph 16
hereunder;
b) Interest of principal amount of Rs. 26,92,382/- on and from 11th
September, 2012 until realization thereof;
c) Injunction;
d) Receiver;
e) Attachment;
f) Costs;
g) Further and/ or other reliefs".
After the respondent brought the suit the petitioner as defendant
made an application in connection with the suit seeking an order
condoning delay on the part of it to enter appearance in the suit. By an
order dated 16.01.2014 this Court allowed this application filed by the
petitioner. Thereafter, the petitioner filed two applications - one being GA
No. 1059/2018 seeking relief to defend the suit upon filing writing
statement and the another being GA No. 1060/2018 seeking dismissal of
the suit. By an order dated December 4, 2018 this Court dismissed the
application being GA No. 1060 of 2018. Aggrieved by the order dated
December 4, 2018, the petitioner preferred an appeal being A.P.O No. 39
of 2019 before a Division Bench of this Court. By an order dated
February 25, 2019 the Hon'ble Division Bench was pleased to set aside
the order dated December 4, 2018 and observed that the suit would not
be tried as a summary suit. By the order the Hon'ble Division Bench was
further pleased to observe that the matter involved triable issues and
accordingly directed the petitioner to file written statement within three
weeks from the date of the aforesaid order. By the same order parties
were directed to complete discovery and inspection of the documents
within two weeks thereafter and after completion of such exercise the
respondent was directed to prepare a comprehensive Judge's Brief of
documents within two weeks thereafter and supply a copy of the same to
the petitioner. The Hon'ble Division Bench noticed that since the matter
involved a commercial dispute the suit statutorily required to be tried as
a commercial suit before the Commercial Division of this Court and
accordingly directed the department to re-number the suit as a
commercial suit.
Subsequently, the erstwhile learned Advocate-on- record of
the petitioner issued a letter dated March 4, 2019 requesting the learned
Advocate-on-record of the respondent to convey the re-numbered
commercial suit to enable it to file the written statement. However,
thereafter, the respondent did not take any step to get the suit re-
numbered as a commercial suit in compliance with the order dated
February 25, 2019 of the Hon'ble Division Bench, neither the Ld.
Advocate of it responded to the aforesaid letter of the petitioner. The
petitioner states that Mr. Surendra Jha, since deceased, who was the
erstwhile Director of the petitioner company was looking after the matter
and was instructing the erstwhile Learned Advocate-on-record. Since
there was no re-number of the suit as a commercial suit, the petitioner
was unable to file its written statement in the suit. Meanwhile, Mr.
Surendra Jha who used to look after the suit, during the pandemic
situation, passed away on July 11, 2020. He was the only person on
behalf of the petitioner company who used to keep Liason with the
erstwhile Learned Advocated-on-record. In such backdrop, the petitioner
was completely in dark with regard to the progress of the suit. The
petitioner submits that there was a gap in communication between the
petitioner and the erstwhile Learned Advocate-On-Record.
On August 19, 2022 the petitioner was surprised by a letter dated
August 18, 2022 issued by the Learned Advocate of the respondent
enclosing therewith a copy of the judgment dated August 16, 2022 by
which the suit was decreed exparte against it. Immediately, after
receiving the aforesaid letter, the petitioner contacted with its erstwhile
Learned Advocate-on-record who informed it that after issuance of the
aforesaid letter dated March 4, 2019, no response thereto was received
from the Learned Advocate for the respondent. After enquiries, the
petitioner found that several orders had been passed in the suit and in
the absence of the petitioner the suit was allowed to proceed as an
undefended suit against it. From the orders it appeared that initially
orders were passed by this Court in exercise of the jurisdiction vested in
the Commercial Division of this Court whereas subsequent orders were
passed by this Court not in exercise of the jurisdiction vested in the
Commercial Division, but in exercise of its Ordinary Original Civil
Jurisdiction.
The petitioner submits that no judgment or decree could have been
passed by this Court in its Ordinary Original Civil Jurisdiction since the
suit involved commercial dispute. The petitioner further submits that
even after the transfer of the suit to the Commercial Division, there was
ample jurisdiction to extend time to file written statement by the
petitioner in terms of the provisions of the Commercial Courts Act, 2015.
The Learned Advocates for the respondent neither apprised the
Court of the letter dated March 4, 2019 issued by the learned advocate
for the petitioner, nor they apprised the Court that the suit was to be
heard and disposed of by the Commercial Division.
The petitioner was completely dependent on the advice of its
learned advocate. Since no communication was made between the
learned advocate for the petitioner and the petitioner itself and owing to
the death Mr. Jha the petitioner could not take any step to contest the
suit.
After receiving the copy of the judgment and decree passed
exparte, the petitioner engaged a new set of advocates to file the
application on hand. Under such circumstances, the petitioner submits
that it was prevented by just and sufficient cause to appear before this
Court and contest the suit. Despite having a strong defense the petitioner
failed to appear before the Court owing to the circumstance as above.
The petitioner has a good case on merit. The Written Statement on behalf
of the petitioner has already been prepared though not affirmed. On such
grounds, the petitioner prays for setting aside the order dated 16th
August 2022 by which the suit was decreed exparte after condoning
delay in preferring the application.
The respondent in its Affidavit-in-Opposition states that before it
brought the suit it initially filed a winding up petition being Company
Petition No. 310 of 2012 against the petitioner. The petition filed by the
respondent was contested by the petitioner. By an order dated 4th
February 2013 the Company Petition was permanently stayed and the
claim of the respondent was relegated to a suit. Aggrieved by the order
dated 4th February 2013, the respondent preferred an appeal being
A.P.O. No. 202 of 2013 and by order dated 19th July 2013, the Hon'ble
Appeal Court disposed of the appeal permitting the parties to resolve the
dispute before the Civil Court and granting liberty to the Civil Court to
decide the issue in accordance with law. In terms of the aforesaid order
of the Hon'ble Appeal Court, the respondent brought the suit as above on
13-01-2014. The respondent admits that subsequently by an order dated
25th February 2019 the Hon'ble Division Bench directed the petitioner to
file Written Statement within three weeks from the date of the order. It
was clarified in the order that the suit should not be tried as summary
suit, instead, it would be tried as a commercial suit. The right of the
petitioner to file written statement expired on 24th June 2019 which
included the period of limitation as provided under the Commercial
Courts Act, 2015. Despite several notices/opportunities the petitioner
got, it chose not to contest the suit and file written statement in terms of
the order dated 25th February 2019 of the Hon'ble Appeal Court. Owing
to non-taking steps on the part of the petitioner a co-ordinate Single
Bench by order dated 19-04-2022 registered the suit as undefended suit
in the Commercial Division of the Court. Thereafter, the respondent led
evidence and advanced arguments. Ultimately, the suit was decreed
exparte against the petitioner. The respondent states that admittedly the
petitioner received the summons and it had duly appeared before this
Court to contest the suit, but in terms of the order dated 25th February
2019 of the Hon'ble Appeal Court the petitioner did not take any interest
in the suit nor it filed any Written Statement. The respondent submits
that the petitioner being a regular litigant remained active before this
Court by filing and defending various other proceedings during the
period when the suit was pending for adjudication. In such context, the
respondent states that despite having knowledge of the pendency of the
suit the petitioner took no step to contest the suit. The respondent
submits that the petitioner has failed to demonstrate that it had
sufficient cause by which it was prevented from contesting the suit. On
such facts and denying the material averments / allegations as made in
the application the respondent seeks dismissed of the application with
exemplary costs.
However, the petitioner in its affidavit-in-reply denies the
averments as made in the affidavit-in-opposition of the respondent.
Admittedly, the respondent filed a Company Petition No. 310 of
2012 against the petitioner in this Court. By order dated 4th February
2013 passed by a learned Single Bench the Company Petition being CP
No. 310 of 2012 was permanently stayed and the claim of the respondent
was relegated to a suit. Aggrieved by such order, the respondent
preferred an appeal being A.P.O 202 of 2013 before the Hon'ble Appeal
Court. By an Oder dated 19-07-2013 the Hon'ble Appeal Court disposed
of the appeal permitting the parties to resolve the disputes before the
Civil Court and granting liberty to the Civil Court to decide the issues in
accordance with law. In compliance of the order of the Hon'ble Appeal
Court the respondent filed the suit on 13-01-2014.
Undisputedly, the petitioner entered appearance in the suit. As
admitted, the petitioner by filling an application being G.A No. 1060 of
2018 sought for dismissal of the suit, but the application filed by it was
dismissed by a Learned Single Bench by order dated 4th December 2018.
Feeling aggrieved by this order the petitioner preferred an appeal being
A.P.O No. 39 of 2019 before a Division Bench. By order dated 25th
February 2019 the Hon'ble Division Bench set aside the order dated 4th
December 2018 with the observation that the suit would not be tried as a
summary suit. The Hon'ble Division Bench further observed that since
the matter involved commercial dispute, the suit would be tried as a
commercial suit before the Commercial Division of this Court. By the
same order, the Hon'ble Division Bench directed the department to re-
number the suit as a Commercial Suit and the petitioner was directed to
file Written Statement to contest the suit within three weeks from the
date of the order.
Learned counsel for the petitioner submits that by a letter dated
04th March, 2019 the petitioner through its learned Advocate-on-record
requested the learned Advocate-on-record for the respondent to convey
the commercial suit number as renumbered to it so that it could file
written statement within the timeline, but, the respondent made no
response thereto. Besides, Mr. Surendra Jha, the erstwhile Director of
the petitioner company who used to look after the suit for the petitioner
passed away on July 11, 2020 being infected with COVID. Learned
Advocate-on-record for the petitioner did not communicate the petitioner
that the suit proceeded undefended. Learned counsel further submits
that though the suit required to be disposed of by the Commercial
Division of this Court, but the suit was disposed of exparte in exercise of
jurisdiction vested in the ordinary original civil jurisdiction of this Court.
On such grounds learned counsel argues that the petitioner was
prevented by sufficient cause from appearing before the court to contest
the suit. On such score learned counsel submits that the order by which
the suit was decreed exparte should be set aside. In support of his
argument learned counsel has cited a decision in the case of G.P.
Srivastava Vs. R.K. Raizada and Ors. reported in (2000) 3 Supreme
Court Cases 54 and a decision dated 02.09.2022 rendered by a Division
Bench of this Court in FMAT 245 of 2022 with CAN 1 of 2022.
Learned counsel appearing for the respondent submits that
summons of the suit was duly served upon the petitioner and the
petitioner entered appearance in the suit. Learned counsel points out
that in compliance of the order dated 25.02.2019 passed by the Hon'ble
Appeal Court the petitioner was to file written statement in the suit. The
right of the petitioner to file written statement expired on 24th June, 2019
which included the extendable period of limitation as provided under the
commercial Courts Act, 2015. Since the right of the petitioner to file a
written statement forfeited in June, 2019, the death of Mr. Surendra Jha,
the director of the petitioner company in July, 2020 does not improve the
case of the petitioner that it was prevented by sufficient of cause from
appearing before the concerned Bench which heard the suit finally. By
referring to the order of the determination of the Hon'ble Chief Justice
Learned counsel submits that at the material time this Bench had
determination to hear the suit under the commercial Division of this
Court. According to learned counsel since the suit appeared in the lists
from time to time it will be deemed that the petitioner was well aware of
the progress of the suit. Learned counsel further submits that the
petitioner was not diligent from the very beginning to participate in the
hearings of the suit. Even after the copy of the final order of the suit was
served upon the petitioner, it did not prefer the application on hand in
time. Learned counsel by producing cause lists of the Commercial
Division submits that the numbers of the suits of the Original Side while
heard by the Commercial Division always remain unchanged. In such
context, learned counsel emphasises that the application is liable to be
dismissed. To espouse his submission learned counsel has cited a catena
of decisions in the case of Salil Dutta versus T.M. and M.C. Private
Limited reported in (1993) 2 Supreme Court cases 185, in the case of
Vishwabandhu Versus Sri Krishna and Another reported in 2021 SSC
Online SC 828 and in the case of Mahabir Singh Versus Subhash and
Others reported in (2008) 1 Supreme Court Cases 358.
It is contended by the petitioner that since it did not get any
response to the letter dated 4th March, 2019 seeking the commercial
number of the suit from the respondent, it could not take any step to
participate in the hearings of the suit. As quoted above, the Hon'ble
Appeal Court by order dated February 25, 2019 directed the department
and not the respondent to renumber the suit as a commercial suit. The
Hon'ble Appeal Court by the same order directed the petitioner to file
written statement within three weeks from date. As the direction of the
Hon'ble Appeal Court was binding upon the petitioner, a legal obligation
was cast on the petitioner to approach the appropriate bench seeking
necessary direction or permission to file the written statement in
compliance with the order of the Hon'ble Appeal Court. Soliciting reply to
the letter dated 4th March, 2019 from the respondent does not in any way
exonerate the petitioner's obligation / responsibility to move the
appropriate Bench to obtain necessary order as to filing of the writing
statement in obedience to the directive passed by the Hon'ble Appeal
Court. As pointed out by learned counsel for the respondent, I am of the
same view that the sad demise of Surendra Jha on July 11, 2020 does
not sustenance the petitioner's case that it was prevented by sufficient
cause to participate in the proceeding of the suit.
A cause list dated 19th April, 2022 demonstrates that the suit
being CS 25 of 2014 appeared before a learned coordinate Single Bench.
As the petitioner took no step the suit appeared in the daily cause list
dated 4th May, 2022 under the heading 'Undefended Suit'. Again the
suit appeared in the list dated 5th May, 2022 also under heading
'Undefended Suit'. Since the petitioner preferred not to contest the suit
despite notices published through the publication of the cause lists, the
learned coordinate bench proceeded to hear the suit exparte taking
evidence.
As I find after going through a number of cause lists published
from time to time, a suit of Original Side while heard by Commercial
Division its number remained unchanged. That being so, the plea taken
by the petitioner that due to non-allotment of commercial number of the
suit it could not take any step is not acceptable.
While the suit was finally disposed of exparte, this Bench had the
determination to hear the suits under Commercial Division. True, while
the final order was passed exparte there was no mention in cause list or
in the order itself that the suit was entertained by this Bench under
Commercial Division. While this Bench having determination of
Commercial Division the suit involving commercial disputes was
disposed of by this Bench rightly.
In the decision in the case of Salil Dutta versus T.M. and M.C.
Private Limited reported in (1993) 2 Supreme Court cases 185 the
Hon'ble Apex Court has held that while the defendant's conduct was
found to be non-cooperative with the court the application of the
defendant under order 9 rule 13 of the Code of Civil Procedure is not
sustainable. In a decision in the case of Vishwabandhu Versus Sri
Krishna and Another reported in 2021 SSC Online SC 828 the Hon'ble
Apex Court has held that while the defendant was not vigilant, the
application made by him/her under order 9 rule 13 of the Code of Civil
Procedure should not be sustainable. In an another decision in the case
of Mahabir Singh Versus Subhash and Others reported in (2008) 1
Supreme Court Cases 358 the Hon'ble Apex Court has held that if an
application under order 9 rule 13 of the Code of Civil Procedure is filed
belatedly from the date of knowledge of the order passed exparte the
application should not be allowed.
However, the Hon'ble Apex Court in the decision in the case of G.P.
Srivastava Versus R.K.Raizada and others reported in (2000) 3
Supreme Court Cases 54 and a Hon'ble Division Bench of this Court in
the decision in the case of East Coast Ispat Private Limited Versus
Railway Supply Corporation Private Limited (FMAT 245 of 2022 with
CAN 1 of 2022) rendered on 02.09.2022 has held that the court should
avoid disposal of the matters on technical grounds.
As observed above, the petitioner despite direction upon it by the
Hon'ble Appeal Court and despite listing the matter before the
appropriate bench from time to time did not prefer to contest the suit.
Even after the petitioner came to know of the final order of the suit
passed exparte, it filed the application on hand belatedly. All these
unequivocally exhibit that the petitioner all along was not diligent to
take effective steps to participate in the hearings of the suit and also was
not diligent to bring the application on hand in time.
In view of the above and in the light of the principles as enunciated
by the Hon'ble Apex Court as well as by this court I find that there is no
merit in the application to succeed.
Accordingly, the application being IA G.A. No. 06 of 2022 is
dismissed on context. No order as to costs.
The parties may act on server copy of this order duly downloaded
from the official Web Site of this court.
Urgent photostat certified copy of this order, if applied for, be given
to the parties on compliance of requisite formalities.
(RABINDRANATH SAMANTA, J.)
