Calcutta High Court
The Roman Catholic Archdiocese Of ... vs Creative Consultants on 10 September, 2024
OCD-11
ORDER SHEET
IN THE HIGH COURT AT CALCUTTA
COMMERCIAL DIVISION
ORIGINAL SIDE
IA No: GA-COM/2/2024
In CS-COM/7/2023
THE ROMAN CATHOLIC ARCHDIOCESE OF CALCUTTA AND ORS
-VS-
CREATIVE CONSULTANTS
BEFORE:
The Hon'ble JUSTICE KRISHNA RAO
Date : September 10, 2024.
Appearance:
Mr. Sanjay Kumar Baid, Adv.
Mr. Rishav Karnani, Adv.
Mr. Sourav Dutta, Adv.
...for the plaintiffs
Mr. Shyamal Chakraborty, Adv.
Ms. Somoshree Saha, Adv.
Mr. Debajyoti Mondal, Adv.
...for the defendant
The Court: Mr. Rishav Karnani, learned Counsel, is appearing for the
plaintiffs.
Mr. Shyamal Chakraborty, learned Counsel, is appearing for the
defendant.
The defendant has filed an application being GA-COM/2/2024
praying for condoning the delay of 93 days for filing written statement.
Counsel for the plaintiffs submits that the plaintiffs have received the
writ of summons on 22nd April, 2024 and after receipt of the writ of
summons, the defendant has authorized one of the partners to look after the
case by way of a resolution dated 3rd May, 2024. Thereafter the defendant
has contacted the learned advocate for taking appropriate steps. In the first
week of May, 2024, the advocate for the defendant has directed to bring all
the documents to draft the written statement.
Counsel for the defendant submits that the mother of the applicant is
a widow and is aged about 74 years and she was suffering from several
ailments including heart disease and in the second week of May, 2024 the
condition of the mother of the applicant was deteriorated and accordingly,
the applicant was busy with the mother for taking appropriate care to bring
his mother to the doctor for treatment.
Counsel for the defendant further submits that in the first weeks of
August, 2024, the applicant has contacted with the learned advocate and
had informed about the personal problem. Accordingly, learned advocate
has prepared the written statement and has taken leave from this Court on
14th August, 2024 to affirm the written statement. Accordingly, on 14th
August, 2024 i.e. the 120th day the written statement was affirmed.
Subsequently the applicant has filed the present application on 30th August,
2024.
Counsel for the defendant submits that the defendant has filed the
written statement along with the counter claim and has affirmed the
affidavit within 120 days and as such the written statement along with the
counter claim filed by the defendant may be accepted by condoning the
delay of 93 days.
Learned advocate for the defendant has relied upon an unreported
judgment passed by the Co-ordinate Bench of this Court in the case of
Pratishtha Commercial Private Limited -Vs- Orissa State Cooperative
Milk Producers' Federation Limited dated 19th May, 2023 in
CS/302/2022 wherein this Court had allowed to file written statement only
on the ground that the defendant has verified and affirmed the written
statement on 120th day from the date of receipt of the writ of summons.
Per contra, learned counsel for the plaintiffs has raised objection and
submits that mere affirming the written statement will not serve the purpose
and it cannot be said that the written statement is filed.
Learned counsel for the plaintiffs submits that as per the amended
provision of Order VIII, the outer limit for filing written statement is 120
days but in the present case the defendant has not filed the written
statement within the outer limit of 120 days and mere affirming the
verification and affidavit in the written statement cannot be said that the
defendant has filed the written statement.
Learned counsel for the plaintiffs has relied an unreported judgment
passed by this Court in the case of Fox and Mandal -Vs- Somabrata
Mandal and Others in CS-COM/408/2024 dated 14th June, 2024 wherein
this Court has relied upon the judgment passed by a Co-ordinate Bench of
this Court in IA No. GA/2/2022 in CS/150/2022 in the case of Hindustan
Unilever Limited -Vs- Emami Limited wherein a Co-ordinate Bench of this
Court held the date of affirmation of the written statement is irrelevant but
the obligation is to file the written in accordance with law within a period of
120 days.
Counsel for the plaintiffs submits that even taking into consideration
that the defendant has affirmed and verified the written statement on 14th
August, 2024 i.e. the 120th day but has not filed the said written statement
and the written statement is not on record of this Court and he prays for
dismissal of the application.
Heard the learned counsel for the respective parties.
Perused the application and the judgments relied by the parties.
Admittedly the defendant has received the writ of summons on 22nd
April, 2024. It is also admitted that the written statement was not filed
within the outer limit of 120 days but the defendant has affirmed and
verified the affidavit of the written statement on 120 th day. The defendant
has filed the application i.e. GA-COM/2/2024 on 30th August, 2024 that is
much latter of the outer limit of 120 days.
This Court in the case of Fox and Mandal (Supra) also held that
affirmation of the written statement is irrelevant unless it has been taken on
record. Admittedly, in the present case, the written statement was not taken
on record. It is also found that though the defendant has filed the present
application on 30th August, 2024 praying for condoning the delay and
acceptance of written statement but in the said application also the
defendant has not enclosed the copy of the written statement so that this
Court can presume that the written statement was on record.
In the case of SCG Contracts India Pvt. Ltd. -Vs- Ks Chamankar
Infrastructure Pvt. Ltd. reported in (2019) 12 SCC the Hon'ble Supreme
Court categorically held that the outer limit for filing of written statement in
the commercial case is 120 days and after 120 days, Court is not
empowered to take written statement on record.
Considering the above settled position of law, this Court does not find
any merit in the application filed by the defendant. Accordingly, GA-
COM/2/2024 is dismissed.
(KRISHNA RAO, J.)
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