Pratishtha Commercial Private ... vs Orissa State Cooperative Milk ...
2023 Latest Caselaw 1229 Cal/2

OCD-4
                               ORDER SHEET

                          IA No.GA 1 of 2023
                                  IN
                            CS 302 of 2022
                  IN THE HIGH COURT AT CALCUTTA
                ORDINARY ORIGINAL CIVIL JURISDICTION
                            ORIGINAL SIDE
                       (COMMERCIAL DIVISION)


               PRATISHTHA COMMERCIAL PRIVATE LIMITED
                               VS
         ORISSA STATE COOPERATIVE MILK PRODUCER'S FEDERATION
                            LIMITED


BEFORE:
The Hon'ble JUSTICE ARINDAM MUKHERJEE

Date: 19th May, 2023.

Mr. Nemani Srinivas, Mr. Bishajib Ghosh, Advocates for defendant.

Mr. Pranit Bag, Mr. Anurag Modi, Advocates for the plaintiff.

The Court : The defendant filed an application for rejection of the

plaint being GA 1 of 2023 on 13th March, 2023. The Master's Summons

whereof has been taken out on 6th March, 2023 and the affidavit in support

thereof had also been affirmed on 6th March, 2023. The said application

was, however, filed subsequent to the defendant receiving the Writ of

Summons. The suit being one filed in the Commercial Division, the mandate

to file the written statement as per the amended provisions of Order VIII of

the Code of Civil Procedure, 1908 (in short CPC) read with the provision of

Section 16 of the Commercial Courts Act, 2015 is 30 days from the date of

receipt of the Writ of Summons. The Court has the discretion to extend the

time for filing the written statement if sufficient grounds are made out

subject to maximum 120 days from the date of receipt of the Writ of

Summons. After expiry of 120 days the defendant forfeits its right to file the

written statement. This view has been subscribed in the judgment of the

Hon'ble Supreme Court reported in (2019) 12 SCC 210 [SCG Contracts

India (P) Ltd. V. K. S. Chamankar Infrastructure (P) Ltd.]. There has been,

however, a departure from this view in the Supreme Court judgment

reported in (2022) 5 SCC 112 [Prakash Corporates V. Dee Vee Projects Ltd.]

depending upon the facts of the case.

In the instant case the challenge to the maintainability of the suit

percolates to the root of the matter. In the suits filed under the Ordinary

Original Civil Jurisdiction there is consistent view that where the

jurisdiction of the Court is challenged and it goes to the root of the matter,

the defendant can wait till the disposal of such application to file the

written statement. There are also contrary views to that. Be that as it may,

the application challenging the maintainability of the suit filed by the

defendant came up for consideration on 21st March, 2023 when directions

for affidavits were given. The affidavit-in-opposition was to be filed by 10th

April, 2023 and reply thereto, if any, was to be filed by 26th April, 2023 and

the matter was made returnable in the monthly list of May, 2023. The

plaintiff did not affirm or file the affidavit-in-opposition in time as directed

by order dated 21st March, 2023. No extension of time was also prayed for

either prior to the expiry of the time to file the affidavit-in-opposition or even

thereafter when the matter was in the list. Finding that 120 days from the

date of receipt of the Writ of Summons are approaching and there may be

an occasion debarring the defendant from filing the written statement, the

matter was mentioned and as such has been brought to the daily list from

the monthly list. The defendant says that the Writ of Summons has been

served on 3rd February, 2023 which is, however, disputed by the plaintiff.

According to the plaintiff, the Writ of Summons was sought to be delivered

on the defendant on 18th January, 2023 as will appear from the mode of

service dated 6th March, 2023 issued by the office of the Sheriff of Calcutta,

a copy whereof has been placed before the Court. According to the said

mode of service the Writ of Summons sent by post is shown to have been

delivered on 18th January, 2023 as per the track report downloaded from

the official website of the postal authorities.

The plaintiff is admittedly in default in filing the affidavit-in-

opposition. The affidavit-in-opposition affirmed on 15th May, 2023 is made

over to Court which is taken on record by extending the time for filing of the

same. The default and the laches on the part of the plaintiff should not

deprive the defendant from filing the written statement. At the same time

the conduct of the defendant is also to be looked into. Assuming without

admitting that the date of delivery of the Writ of Summons is 18th January,

2023 as indicated in the mode of service, the 120th day expired on 18th May,

2023. The period of 120 days from 3rd February, 2023 has not yet elapsed.

The defendant has verified and affirmed a written statement on 18th May,

2023 i.e. within 120th day from the date of receipt of the Writ of Summons if

it is taken to be 18th January, 2023.

In view of the aforesaid, the written statement affirmed by the

defendant on 18th May, 2023 is allowed to be filed in the department

without prejudice to its rights and contentions. However, no copy of the

written statement shall be served on the plaintiff till the disposal of this

application being GA 1 of 2023. The time to file affidavit-in-reply in GA 1 of

2023 is extended till 12th June, 2023.

Let this application appear in the list on 15th June, 2023.

Since today is the last day before the Summer Vacation, the

department shall accept the written statement affirmed on 18th May, 2023

on the basis of the endorsement on the fiat by the Assistant Registrar of this

Court.

(ARINDAM MUKHERJEE, J.)

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