[Cites 6, Cited by 0]
Calcutta High Court
Ashok Kumar Bhotika vs Icici Bank Ltd And Anr on 8 December, 2025
Author: Ravi Krishan Kapur
Bench: Ravi Krishan Kapur
IN THE HIGH COURT AT CALCUTTA
ORIGINAL SIDE
Ordinary Original Civil Jurisdiction
BEFORE:
The Hon'ble JUSTICE RAVI KRISHAN KAPUR
IA NO: GA/3/2025
CS-COM/720/2024
[OLD NO CS/66/2015]
ASHOK KUMAR BHOTIKA
VS
ICICI BANK LTD AND ANR
For the petitioner : Mr. Aniruddha Mitra, Sr. Adv.
Ms. Somali Bhattacharya, Adv.
Ms. Megha Das, Adv.
For the respondent no. 1 : Mr. Avishek Guha, Adv.
Mr. Zeeshan Haque, Adv.
Ms. Shilpa Das, Adv.
For the respondent no. 2 : Mr. Debraj Dutta, Adv.
Mr. Rahul Modak, Adv.
Mr. Aditya Chakraborty, Adv.
Heard on : 08.12.2025
Judgment on : 08.12.2025
Ravi Krishan Kapur, J.:
1. By consent of the parties both the suit and the interlocutory application were
taken up for hearing. Significantly, the petitioner did not press for hearing of
the suit and was only interested in having the interlocutory application heard.
In fact, it was the respondent no.1 bank which sought for directions insofar
as the suit is concerned.
2. The suit was filed as far as back in 2015 and had been re-numbered as
Commercial Suit in 2024. By an order dated 5 February 2025 passed by a Co-
ordinate Bench, the parties were categorically directed to complete discovery
inspection and disclosure of documents. The petitioner/plaintiff did not make
any submissions as to the steps which had been taken in the suit in terms of
the above directions or their willingness in expeditious disposal of the suit.
3. GA 3 of 2025 is an application for striking out pleadings (i.e. paragraphs 8 to
15 of the Written Statement) filed by the respondent no. 2. There is also an
alternative prayer in the application that the pleadings in the Written
Statement filed by the respondent no. 2 be not taken into consideration for
the purpose of framing of Issues.
4. Briefly, by a lease dated 15 September 2010, the petitioner had inducted the
respondent no. 1 as lessee and sought for damages in the nature of
outstanding municipal taxes, expenses for restoration, outstanding rent and
service tax.
5. Pursuant to the filing of the suit, the respondent no. 2 being a sister of the
petitioner had filed an application to be impleaded as a party. By an order
dated 24 September 2018, a Division Bench of this Court had, inter alia,
allowed the appeal of the respondent no.2 and held as follows:
"It is also made clear that the appellant may not be given much of
a chance to interfere with the course of the suit, unless the appellant
alleges any prejudice to the interest of the joint owners of the property by
any act or conduct of the plaintiff herein. However, the Trial Court will be
free to decide on the extent of the participation of the appellant herein in
the further proceedings in the suit, including in interlocutory applications
therein."
6. It is contended on behalf of the petitioner that though impleaded as a party
respondent, the respondent no.2 has filed a Written Statement which
contains irrelevant, unnecessary and frivolous allegations. In such
circumstances, the petitioner seeks deletion of paragraphs 8 to 15 of the
Written Statement and contends that the same are unnecessary and
vexatious and tend to prejudice the rights of the petitioner.
7. On behalf of the respondent bank, it is submitted that they are not concerned
with the merits of the application and have no objection if the application is
allowed or rejected. On behalf of the respondent no. 2, it is submitted that the
instant application is simply a ruse to delay matters. There is no merit in the
application. The Written Statement speaks for itself and there are no grounds
on which this application should be allowed.
8. Order 6 Rule 16 of the Code of Civil Procedure, 1908 is as follows:
16. Striking out pleadings.--The Court may at any stage of the proceedings
order to be struck out or
amended any matter in any pleading--
(a) which may be unnecessary, scandalous, frivolous or vexatious, of
(b) which may tend to prejudice, embarrass or delay the fair trail of the suit, or
(c) which is otherwise an abuse of the process of the Court.
9. Order 6 Rule 16 deals with amendments which a party desires to make in an
opponent's pleadings. In Abdul Razak (Dead) through LRS. & Ors. vs. Mangesh
Rajaram Wagle & Ors. (2010) 2 SCC 432, it has been held as follows:
17. Normally, a court cannot direct or dictate the parties as to what should be
their pleading and how they should prepare their pleadings. If the parties do not
violate any statutory provision, they have the freedom to make appropriate
averments and raise arguable issues. The court can strike off the pleadings only
if it is satisfied that the same are unnecessary, scandalous, frivolous or
vexatious or tend to prejudice, embarrass or delay the fair trial of the suit or the
court is satisfied that suit is an abuse of the process of the court. Since striking
off the pleadings has serious adverse impact on the rights of the party
concerned, the power to do so has to be exercised with great care and
circumspection.
18. In Knowles v. Roberts [(1888) 38 Ch D 263 (CA)] Bowen, L.J. observed:
(Ch D pp. 270-71)
"It seems to me that the rule that the court is not to dictate to parties how they
should frame their case, is one that ought always to be preserved sacred. But
that rule is, of course, subject to this modification and limitation, that the parties
must not offend against the rules of pleading which have been laid down by the
law; and if a party introduces a pleading which is unnecessary, and it tends to
prejudice, embarrass and delay the trial of the action, it then becomes a
pleading which is beyond his right."
It is a recognised principle that: "... a defendant may claim ex debito justitiae to
have the plaintiff's case presented in an intelligible form, so that he may not be
embarrassed in meeting it; and the court ought to be strict even to severity in
taking care to prevent pleadings from degenerating into the old oppressive
pleadings of the Court of Chancery." [Ed.: As observed in Davy v. Garrett,
(1878) 7 Ch D 473, p. 486.]
It is also well-settled that the power to strike out a pleading is
extraordinary in nature and must be exercised by Court sparingly and with
extreme care, caution and circumspection. [Roop Lal Sathi vs. Nachhattar
Singh Gill (1982) 3 SCC 487, K.K. Modi vs. K.N. Modi (1998) 3 SCC 573 and
United Bank of India vs. Naresh Kumar (1996) 6 SCC 660].
10. The order dated 24 September 2018, passed by the Hon'ble Division Bench,
expressly permitted the respondent no. 2 "a limited chance to interfere with the
course of the suit unless the appellant alleges any prejudice to the interests of
the joint owners of the property by any act or conduct of the petitioner. The
order categorically provides that the Trial Court will be free to decide the extent
of participation of the appellant herein in further proceedings of the suit,
including in the interlocutory applications therein".
11. Insofar as title of the suit premises is concerned, it is an admitted position
that a partition suit being Title Suit 20 of 2009 is pending before the Learned
Court, Civil Judge, Senior Division, 4th Court at Alipore. There has been no
final adjudication of this suit and the question of the right, title and interest
of the suit premises is yet to be finally adjudicated upon. Similarly, a probate
proceeding being O.S. No.2 of 2015 pending before the Learned Additional
District Court at Alipore in respect of the Will and Testament of Late Sabitri
Devi Bothika, there has yet been no finality and the said proceeding is still
pending.
12. The conscious decision of the respondent no.2 not to make any counter-claim
in the suit by itself acts as an embargo to any incidental or collateral issue
which would be outside the scope of the suit. Indisputably, by the order of the
Division Bench all issues have been left at large and upto the final discretion
of the Trial Court.
13. The entire monetary claim in the suit is only against the respondent no. 1.
The ownership of the property is admittedly in dispute in civil proceedings
where both the petitioner and the respondent no. 2 are parties. In any event,
the ICICI Bank being the respondent no. 1 lessee, cannot raise any dispute
insofar as the title of the suit premises is concerned (Section 116 of the
Evidence Act, 1898).
14. There is nothing in the pleadings of respondent no.2 which can convert the
nature of the suit. The paragraphs which the petitioner seeks to delete are
practically the entirety of the Written Statement (which contains 17
paragraphs). On a reading of paragraphs 8 to 15, it appears that it primarily
contains a synopsis of the litigations pending in relation to the suit premises
i.e. the probate proceedings and the partition suit. There is nothing which can
also be described as unnecessary, scandalous, frivolous or vexatious or which
may tend to prejudice, embarrass or delay or fair trial or which is otherwise
an abuse of process of this Court.
15. The alternative prayer in the application i.e. "the pleadings made by the
respondent no.1 in paragraphs 8 - 15 of the written statement be not taken into
consideration for the purpose of framing the issues in the instant suit" is
premature inasmuch as that the stage is yet to arrive. Whether the
respondent no.2 choses to make an issue out of any of the pleadings in
paragraphs 8 - 15 of the Written Statement is speculative and based purely
on surmise and conjecture.
16. Notwithstanding the advent of the Commercial Courts Act, 2015 and the
objective towards speedy adjudication of commercial suits, litigants continue
to procrastinate matters by filing unnecessary interlocutory applications
which inevitably delay the ultimate trial. This suit was filed in 2015 and the
petitioner is still not in a position to proceed with the same even after a
decade. The petitioner has been indolent and lackadaisical insofar as hearing
of the suit is concerned.
17. The petitioner was put upon notice that proceeding with this application was
akin to flogging a dead horse. Notwithstanding such caution, the petitioner
proceeded and exhaustively argued the application. In such circumstances,
the application is dismissed with costs assessed at Rs. 1 lakh payable to each
of the respondents.
18. In view of the prayer made on behalf of the respondent no.1, let this suit
being CS-COM No.720 of 2024 appear under the heading "Case Management
Hearing" on 11 December, 2025.
19. With the above directions, GA/3/2025 stands dismissed.
(RAVI KRISHAN KAPUR, J.)
SK.
