Calcutta High Court
Rajendra Kumar Kothari & Anr vs Varun Kothari & Anr on 16 May, 2023
OCD-11
ORDER SHEET
IA No.GA 3 of 2023
In
CS 161 of 2022
IN THE HIGH COURT AT CALCUTTA
ORDINARY ORIGINAL CIVIL JURISDICTION
ORIGINAL SIDE
(COMMERCIAL DIVISION)
RAJENDRA KUMAR KOTHARI & ANR.
VS.
VARUN KOTHARI & ANR.
BEFORE:
The Hon'ble JUSTICE ARINDAM MUKHERJEE
Date: 16th May, 2023.
Ms. Manali Ali, Mr. Zulfiqar Ali Al Quaderi, Advocates for
defendants.
Mr. Rupak Ghosh, Mr. Balarko Sen, Mr. D. Banerjee, Advocates for plaintiffs.
The Court : This is an application for extension of time to file written
statement in a suit filed in the Commercial Division of this Court. The Writ
of Summons was served on 10th December, 2022, wrongly typed as 10th
December, 2023. The time to file the written statement as per the direction
contained in the Writ of Summons was within 30 days from the date of
receipt of the same. Even otherwise the amended provisions of Order VIII of
the Code of Civil Procedure, 1908 read with the provisions of Section 16 of
the Commercial Courts Act, 2015 mandates filing of the written statement
within 30 days from the date of receipt of the Writ of Summons. However,
the Court has a discretion to grant extension of time to file the written
statement subject to maximum 120 days. In the instant case the 120th day
from the receipt of the Writ of Summons expired on 9th April, 2023 and as
such the same has been affirmed on 10th April, 2023. The cut off date being
a holiday any affirmation on the immediate next date is valid in view of the
provisions of the Limitation Act, 1963 read with the provisions of the
General Clauses Act, 1897. The application for extension of time to file the
written statement was also affirmed on 10th April, 2023 but the Master's
Summons has been taken out only on 20th April, 2023. Going by the
provisions of the Original Side Rules of this Court the Master's Summons is
the application and the affidavit in support thereof is only the ground.
Technically speaking, there was no application prior to 20th April, 2023 and
by that time the 120 days period has expired. The plaintiffs have a
justifiable ground to object to the extension.
After hearing the parties and keeping in mind that the written
statement was verified and affirmed on 10th April, 2023 i.e. on the 120th
day, I am not inclined to take a stringent stand to render the defendant
defenceless for having affirmed the application for extension of time on the
120th day and having taken out the Master's Summons on 20th April, 2023
i.e. beyond 120 day though the conduct of the defendant is not appreciable.
I have also considered the judgments reported in (2019) 12 SCC 210 [SCG
Contracts India (P) Ltd. V. K. S. Chamankar Infrastructure (P) Ltd.] and
(2022) 5 SCC 112 [Prakash Corporates V. Dee Vee Projects Ltd.].
In the facts and circumstances as aforesaid, the written statement
verified and affirmed on 10th April, 2023, if presented before the department
on or before 19th May, 2023, the same shall be accepted if it is otherwise
found to be in order subject to payment of costs assessed at 300 GMs
payable to the High Court Legal Services Committee. The payment of costs
shall be a pre-condition to filing of the written statement. The department
shall ensure payment of costs and then only accept the written statement in
terms of this order.
GA 3 of 2023 is accordingly disposed of.
Since I have not called for any affidavit, the allegations contained in
the application are deemed to have not been admitted by the plaintiffs.
(ARINDAM MUKHERJEE, J.)
pa
