Calcutta High Court
Raijada Marbles And Ors vs Royalbuilt Infrastructure Private ... on 4 October, 2024
OCD-36
ORDER SHEET
IN THE HIGH COURT AT CALCUTTA
COMMERCIAL DIVISION
ORIGINAL SIDE
GA-COM/4/2024
[Old No. CS/74/2023]
CS-COM/494/2024
RAIJADA MARBLES AND ORS
-VS-
ROYALBUILT INFRASTRUCTURE PRIVATE LIMITED AND ORS.
BEFORE:
The Hon'ble JUSTICE KRISHNA RAO
Date : October 04, 2024.
Appearance:
Mr. Deepnath Roy Choudhury, Adv.
Mr. Debraj Sahu, Adv.
Mr. Bhaskar Dwivedi, Adv.
Mr. Hareram Singh, Adv.
Ms. Swagata Ghosh, Adv.
...For the plaintiff
Mr. Pratip Mukherjee, Adv.
...for the defendant Nos.1, 2 and 3.
The Court : Mr. Deepnath Roy Choudhury, learned Counsel, is
appearing for the plaintiff and Mr. Pratip Mukherjee, learned Counsel, is
appearing for the defendant Nos.1, 2 and 3.
Counsel for the defendant Nos.1, 2 and 3 has filed the present
application being GA-COM/4/2024 praying for condoning the delay of 85
days in filing the written statement.
Counsel for the defendant Nos.1, 2 and 3 submits that writ of
summons were served upon the defendant Nos.1 to 3 on 4th May, 2024.
Though the defendants have not filed the written statement within the
prescribed period of thirty days but affirmed the affidavit as well as present
application on 28th August, 2024 that is well within the outer period of 120
days and as such the written statement affirmed by the defendant Nos.1 to
3 may be accepted.
Learned Counsel for the plaintiff raised objection and submitted that
admittedly the writ of summons were served upon the defendant Nos. 1 to 3
on 4th May, 2024. As per the record the present application for condoning
delay is filed on 5th September, 2024 that is after the period of outer limit of
120 days.
Counsel for the plaintiff further submits that merely affirming the
affidavit and not filing it in the Court, cannot be said that the defendant has
filed the written statement. No written statement is on record and he prays
for rejection of the present application.
Counsel for the defendant Nos.1 to 3 has relied upon the order passed
by the co-ordinate Bench of this Court reported in the Pratishtha
Commercial Private Limited Versus Orissa State Cooperative Milk
Producer's Federation Limited reported in 2023 SCC OnLine Cal 1404
and submitted that in the said case also written statement was affirmed
before 120th day but was not on record, the court has extended time to file
written statement.
Considered the submissions made by respective parties and perused
the application and judgment relied by the defendant Nos.1 to 3. Admittedly,
the writ of summons were served upon the defendant Nos.1 to 3 on 4 th May,
2024.
Time to file written statement that is within 30 days has expired on 3rd
June, 2024.
The outer limit of filing the written statement has expired on 2nd
September, 2024.
This Court finds that thought the affidavit was affirmed on 28th
August, 2024, i,e, within the outer period 120 days but the application was
filed on 5th September, 2024 i.e. after the outer period of 120 days. The
written statement affirmed on 28th August, 2024 was also not placed on
record. Mere affirming an affidavit of written statement without filing in
Court or department will no consequences.
Order VIII Rule 1 of the Code of Civil Procedure as amended under the
Commercial Courts Act reads as follows:
"*[Amendments to the Code of Civil Procedure, 1908 in its
application to commercial disputes]
As per S. 16 of Act 4 of 2016, in its application to any suit in
respect of a commercial dispute of a Specific Value, in Order
VIII, in Rule 1, the proviso, the following proviso shall be
substituted, namely:-
"Provided that where the defendant fails to file the written
statement within the said period of thirty days, he shall be
allowed to file the written statement on such other day, as may
be specified by the Court, for reasons to be recorded in writing
and on payment of such costs as the Court deems fit, but which
shall not be later than one hundred twenty days from the date of
service of summons and on expiry of one hundred twenty days
from the date of service of summons, the defendant shall forfeit
the right to file the written statement and the Court shall not
allow the written statement to be taken on record". [Vide Act 4 of
2016,S. 16 and Sch. (w.r.e.f. 23-10-2015)]"
Admittedly, the defendant Nos.1 to 3 have not filed the written
statement within the 120 days. As per the record no written statement is
available on record. In the judgment relied by the defendant Nos.1 to 3
Pratishtha Commercial Private Limited this Court extended the time to
file written statement on the ground that affidavit of written statement was
affirmed well within outer time limit of 120 days, but this court and another
co-ordinate Bench of this Court held that mere affirming an affidavit will no
consequence unless it is brought on record. In the present case though the
defendant Nos.1 to 3 have affirmed their written statement and affirmed the
present application on 28th August, 2024 but have not taken any leave from
this Court to file the said written statement in the department and have not
brought the same on record.
The application is filed in the department on 5th September, 2024 that
is after the outer limit of 120 days.
In the case of [SCG Contracts India (P) Ltd. v. K.S. Chamankar
Infrastructure (P) Ltd.] reported in (2019) 12 SCC 210, the Hon'ble
Supreme Court categorically held that this Court cannot accept the written
statement after the outer period of 120 days.
In the present case also the written statement is not on record and the
present application has been filed after the outer period of 120 days. Thus,
this Court does not find any merit in the application.
Accordingly, GA-COM/4/2024 is dismissed.
(KRISHNA RAO, J.)
S.De
