Calcutta High Court
Fox And Mandal vs Somabrata Mandal And Ors on 14 June, 2024
OCD-28
ORDER SHEET
IN THE HIGH COURT AT CALCUTTA
Ordinary Original Civil Jurisdiction
ORIGINAL SIDE
[Commercial Division]
CS-COM/408/2024
Old No. CS/178/2022
IA No. GA/1/2022, GA/4/2023
FOX AND MANDAL
-VS-
SOMABRATA MANDAL AND ORS
BEFORE:
The Hon'ble JUSTICE KRISHNA RAO
Date : June 14, 2024.
Appearance:
Mr. Soumya Roy Chowdhury, Adv.
Mr. Soubhik Chowdhury, Adv.
...for the plaintiff
Mr. Soumava Mukherjee, Adv.
Mr. Rohan Raj, Adv.
Mr. Indranil Munshi, Adv.
Ms. Vedika Bhotika, Adv.
Ms. Anuskha Sarkhel
...for the defendant no.1
The Court: Mr. Soumya Roy Chowdhury, learned advocate, is
appearing for the plaintiff.
Mr. Soumava Mukherjee, learned advocate, is appearing for the
defendant no.1.
The defendant has filed the present application being GA/4/2023
praying for leave for filing written statement by the defendant No.1 within a
period of 120 days or such other time as this Hon'ble Court may deem fit and
proper in connection with CS/178/2022.
Counsel for the defendant No.1 submits that initially when the plaintiff
has taken out the writ of summon for service upon the defendant no.1, the
same was not delivered. The plaintiff has taken fresh steps for issuance of
writ of summons upon the defendant no.1 and as per the Sheriff's report dated
19th May, 2021 the writ of summon was served in person upon the defendant
No.1 on 3rd February, 2023 as well as by the speed post on 16 th January,
2023, though the defendant No.1 has denied with regard to the speed post
service on 16th January, 2023.
Counsel for the defendant No.1 submits that no writ of summon was
received by the defendant No.1 through speed post of 16th January, 2023. He
submits that the defendant had prepared the written statement which was
duly affirmed on 15th May, 2023 but the same was not accepted. There was a
summer vacation and after reopening of the Court the defendant No.1 has
filed the present application. The defendant No.1 prays for allowing the
defendant No.1 to file the written statement.
Counsel for the defendant No.1 has relied upon the judgment reported
in 2023 SCC online Calcutta 1404 (Pratishtha Commercial Private
Limited Vs. Orissa State Cooperative Milk Producer's Federation Limited)
and submitted that in the said case also a co-ordinate Bench of this Court has
accepted the written statement filed by the defendant within 120 days from
the date of receipt of the writ of summons.
Per contra, learned Counsel for the plaintiff has raised objection and
submitted that the application filed by the defendant No.1 itself is not
maintainable as the prayer made by the defendant is defective.
He submits that the defendant No.1 though has affirmed the affidavit of
the present application on 5th June, 2023 but as per the record the same was
filed on 13th June, 2023, that is, on 130th day after receipt of the writ of
summons.
Counsel for the plaintiff submits that the submission made by the
defendant No.1 that the application was filed within the period of 120 days is
not correct. He further submits that the plaintiff has taken appropriate steps
for issuance of writ of summons on previous occasion but it was not delivered.
Subsequently the plaintiff has further taken steps by both ways, that is,
through the bailiff as well as through speed post and both the writ of
summons were served upon the defendant No.1 on 3rd February, 2023 and on
16th January, 2023, which reflects from the service report of the Deputy
Sheriff of this Court. He submits that if the date of service is taken on 16th
January, 2023, the 120 days is over on 18th May, 2023 and if the service of
writ of summons is taken as 3rd February, 2023, the 120 day is completed on
3rd June, 2023, but the defendant No.1 has filed the present application on
13th June, 2023, that is, after the period of 120 days.
Learned Counsel for the plaintiff has relied upon an unreported
judgment passed by a co-ordinate Bench of this Court in IA No:GA/2/2022
in CS/150/2022 (Hindustan Unilever Limited Vs. Emami Limited) wherein
this Court has held that the date of affirmation of the written statement is also
irrelevant but the obligation is to file the written statement in accordance with
law within the period of 120 days.
He submits that in the present case though as per the submission of the
defendant, the written statement was affirmed on 15th May, 2023 but the
defendant no.1 has not filed the written statement within the period of 120
days and, as such, the affirmation is irrelevant and the same cannot be taken
into consideration.
The plaintiff has relied upon an unreported judgment passed by this
Court in IA No.GA/5/2022 in CS No.36/2020 in Mercury Exports and
Manufacturing Pvt. Ltd. versus Punjab National Bank dated 16th
January, 2023, wherein this Court held that the period of filing the written
statement is 120 days, that is, taking into consideration the extended period of
30 days. He submits that in the present case as per the record the defendant
no.1 has not filed the written statement within 120 days and has filed the
present application after 120 days.
Considered the submissions made by counsel for the respective parties.
Perused the application, documents and the judgment relied on by the parties.
The defendant no.1 has denied service of writ of summons by speed post
on 16th January, 2023, the submission of the learned counsel for the
defendant no.1 cannot be taken into consideration as the defendant no.1 has
not annexed any contrary documents to show that the report submitted by the
Deputy Sheriff of Calcutta on 19th May, 2021 is not correct. It is found that in
the service report the date is mentioned as 19th May, 2021 but, accordingly,
the date of the report is 19th May, 2023 which is reflected in the signature
portion of the Deputy Sheriff appearing at page 2.
This Court in every suit relied upon the report of the Deputy Sheriff and
on the basis of the report of the Deputy Sheriff the Court is ascertaining with
regard to service of writ of summons upon the defendant. In the present case
also, the Deputy Sheriff of Calcutta has submitted the report and the report
reveals that in both the modes the writ of summons was served i.e., by hand
on 3rd February, 2023 and by speed post on 16th January, 2023. Thus, the
submission made by learned counsel for the defendant that the writ of
summons was not served on 16th January, 2023 cannot be relied upon. The
defendant no.1 in the prayer portion of the present application has prayed for
allowing the defendant no.1 to file written statement within the period of 120
days or such other time as this Hon'ble Court may deem fit and proper. It is
found from the record that the application was affirmed on 5th June, 2023 but
the application was filed on 13th June, 2023, that is, after the period of 120
days. Thus, the prayer of the defendant no.1 is also defective. In the case
reported in (2020) 2 SCC 708 (Desh Raj versus Bal Kishan), the Hon'ble
Supreme Court has categorically held that the judgment passed by the Hon'ble
Supreme Court in the case of SCJ Contracts (India) (P) Ltd., reported in
2019 (12) SCC 210, time for filing written statement in commercial suit is
mandatory in nature and Court lacks discretions to condone the delay for
filing written statement after the period of 120 days. The Hon'ble Supreme
Court in the case of SCJ Contracts (India) (P) Ltd. (supra) categorically held
that the Court has no powers to extend the time beyond the period of 120 days
to file the written statement. In the present case, admittedly, the defendant
no.1 has not filed the written statement though it is affirmed on 15th May,
2023, but the affirmation of the written statement is irrelevant. The defendant
no.1 has filed the application on 13th June, 2023, that is, after the period of
120 days and, as such, this Court is of the view that the defendant no.1 has
not filed the written statement within the period of 120 days and, as such, this
Court has no powers to allow the defendant no.1 to file the written statement.
Accordingly, the application being IA No.GA/4/2023 is dismissed.
(KRISHNA RAO, J.)
S.De/spal
