Calcutta High Court
Sanjit Kumar Mandal vs Shabuddin Sekh on 10 September, 2024
OCD-19
ORDER SHEET
IN THE HIGH COURT AT CALCUTTA
ORIGINAL SIDE
[Commercial Division]
IA NO. GA/2/2022
[OLD NO CS/177/2021]
In CS-COM/305/2024
SANJIT KUMAR MANDAL
Vs
SHABUDDIN SEKH
BEFORE:
The Hon'ble JUSTICE KRISHNA RAO
Date : September 10, 2024.
Appearance:
Mr. Shaunak Ghosh, Adv.
Mr. Rajib Mullick, Adv.
Ms. Shreyasi Maity, Adv.
... for the plaintiff
The Court: Mr. Shaunak Ghosh, learned counsel, is appearing for the
plaintiff.
The plaintiff has filed the present application being GA/2/2022 praying
for condoning the delay of 270 days for lodging of writ of summons and prayed for
extension of time to lodge writ of summons. The plaintiff has served the notice of
the instant application to the defendant along with the supplementary affidavit
through speed post but in spite of receipt of the notice, none appears on behalf of
the defendant. The affidavit of service filed by the plaintiff be kept with the record.
Counsel for the plaintiff has filed the suit on 6 th September, 2021 but
the advocate on record has not lodged the writ of summons of the said suit. In the
meantime, the plaintiff has also filed an application for interim order and
accordingly, the plaintiff has proceeded with the said application and in the said
application, initially ad interim order was granted and the plaintiff has complied
with the provision of Order XXXIX Rule 3A and 3B by serving of copy of the plaint,
application and the documents to the defendant. On receipt of the notice of the
interim application, the defendant had entered appearance in the interlocutory
application and contested the said application. Finally, the interim application
filed by the plaintiff was disposed of by an order dated 28 th March, 2023.
The plaintiff submits that in the meantime, the plaintiff came to know
due to inadvertence the writ of summons was not lodged and accordingly, the
plaintiff has approached the learned Advocate-on-record Ms. Gargi Manna who
has informed that she was attached to the solicitor firm which was running by the
name and style of Mullick & Co. and thereafter the plaintiff has requested the
learned Advocate-on-record for taking appropriate steps for lodging of writ of
summons. Subsequently, the Advocate-on-record Mr. Rajib Mullick, being the
Proprietor of M/s. Mullick & Co., has taken up the matter of the plaintiff and filed
the present application.
Counsel for the plaintiff submits that due to inadvertence the plaintiff
could not lodge the writ of summons within the prescribed time of 20 days but
immediately the plaintiff came to know about the same, the plaintiff has filed the
present application for condoning the delay and leave to lodge writ of summons.
Initially, when the plaintiff has filed the present application, he has not taken any
grounds. Subsequently by way of supplementary affidavit the plaintiff has shown
the cause why the plaintiff has not taken the appropriate steps for lodging the writ
of summons.
Counsel for the plaintiff has relied upon the judgment in the case of VCK
Shares and Stock Broking Services Limited Vs. Shalini Poddar and Ors.
reported in MANU/WB/0113/2010 wherein the Co-ordinate Bench of this Court
by condoning the delay for lodging the writ of summons allowed the plaintiff to
lodge the writ of summons.
Considered the submissions made by the Counsel for the plaintiff and
perused the application and the judgment relied by the plaintiff.
This Court finds that the plaintiff after filing of the suit, has proceeded
with the interlocutory application and the plaintiff could not take steps for filing
writ of summons. Subsequently, when the plaintiff realized that the plaintiff has
not taken steps for filing writ of summons, immediately the plaintiff has filed the
present application.
This Court has considered the application along with the supplementary
affidavit and found that the plaintiff has sufficient cause for non-lodging of the writ
of summons within the prescribed time of 20 days.
Considering the above, this Court finds that only for the technical
reasons the plaintiff should not be suffered for dismissal of the suit and as such
one opportunity should be given to the plaintiff by condoning the delay for lodging
the writ of summons.
In view of the above, GA/2/2022 is allowed by condoning the delay of
270 days for lodging the writ of summons and plaintiff is directed to lodge the writ
of summons within a week from date.
GA/2/2022 is disposed of.
(KRISHNA RAO, J.)
S.De
