Calcutta High Court
Rajendra Kumar Kothari And Anr vs Varun Kothari And Anr on 17 February, 2025
Author: Soumen Sen
Bench: Soumen Sen
OCD-3
ORDER SHEET
APO/106/2023
WITH
CS/161/2022
CS-COM/403/2024
IN THE HIGH COURT AT CALCUTTA
Civil Appellate Jurisdiction
ORIGINAL SIDE
(Commercial Division)
RAJENDRA KUMAR KOTHARI AND ANR.
VERSUS
VARUN KOTHARI AND ANR.
BEFORE:
The Hon'ble JUSTICE SOUMEN SEN
AND
The Hon'ble JUSTICE BISWAROOP CHOWDHURY
Date : 17th February, 2025.
Appearance:
Mr. Rupak Ghosh, Adv.
Mr. Balarko Sen, Adv.
Mr. Debaditya Banerjee, Adv.
...for the appellant/plaintiff
Mr. Surajit Nath Mitra, Sr. Adv.
Mr. Sakya Sen, Sr. Adv.
Ms. Manali Ali, Adv.
Mr. Zulfiqar Ali, Adv.
...for the respondent
1. The appeal is arising out of the order dated 16th May, 2023 by
which an application for extension of time to file written statement
in a suit filed in the Commercial Division of this Court was allowed
beyond 120 days.
2. Admittedly, the written statement was affirmed within 120th Day
but not filed in the department within 120 days from the date of
receipt of the writ of summons. The 120th day expired on 9th April,
2023 and, as such, the same was affirmed on 10th April, 2023. The
cut off date being a holiday, any affirmation on the immediate next
day would be valid in view of the provisions of the Limitation Act,
1963 read with the provision of the General Clauses Act, 1987.
3. However, for the purpose of filing any application for extension to
file a written statement, the Original Side Rules require to take out
a Master's Summons along with an affidavit to be taken up by the
Judge in Chamber for acceptance of such written statement
beyond the stipulated time. The Master's Summons is treated as an
application and the affidavit in support of the Master's Summons is
considered to be the grounds on which the Court may decide the
said application. The Master's Summons is dated 20th April, 2023.
As rightly pointed out by the learned Single Judge, there could not
be any application prior to 20th April, 2023 and by that time 120
days period had expired.
4. The defendants are represented by a reputed solicitor firm. It is
unlikely that the solicitors would be unaware of the practice of
obtaining a special leave for short service in accordance with
Chapter VI Rule 5 of the Original Side Rules and to have the
Master' Summons treated as of taken out on that date with the
leave of the Court. For convenience the said Rule is reproduced
below:-
"5. Service and return of summons.- Unless otherwise
ordered, such summons, not being an originating summons,
shall be served two clear days before the return thereof. A
summons may be made returnable in a shorter time, by leave
of the Registrar or Master, which shall be endorsed on it. In
case of summons for time only, the summons may be served
on the day previous to the return thereof."
5. Surprisingly, knowing fully well that the 120th day had expired on
9th April, 2023 or latest by 10th April, 2023, no attempt was made
to mention the matter before the learned Single Judge with the
original written statement and made an oral prayer for acceptance
of the said written statement or to obtain special leave of short
service upon the plaintiff in order to justify that the application at
least was filed within the period of limitation.
6. We have allowed acceptance of written statement when we find that
the application was filed within the period of limitation but the
business of the Court may not have permitted such matter to be
taken up. The filing of the Master's Summons along with the
affidavit and a copy of the written statement annexed could have
saved the day for the defendants.
7. The learned Single Judge has considered the judgment of the
Hon'ble Supreme Court in SCG Contracts India (P) Limited v. K.S.
Chamankar Infrastructure (P) Limited reported in (2019) 12 SCC
210. However, the learned Single Judge was of the view that
notwithstanding the application for Master's Summons being taken
out beyond the 120th day having regard to the fact that the written
statement was affirmed within 120th day, may save the defendants
and the defendants may be permitted to file the written statement.
8. Although we are unable to accept the said reasoning as the date of
affirmation or verification is not crucial and would have the same
consequences when a plaint verified within the period of limitation
and not presented in the department. As the plaintiff cannot be
permitted to file a suit beyond the period of limitation, similarly in
view of the decision of the Hon'ble Supreme Court in SCG Contracts
(Supra), the Court does not have much to say if it is not filed or
presented within 120 days from the date of service of the writ of
summons.
9. We have taken note of the affidavit of the law clerk of the solicitors
firm and the report of the Master and Official Referee which are on
record.
10. There is a categorical denial by the Office that of any such
instruction being given to the law clerk for visiting different
departments for the purpose of taking out the Master's Summons,
it has been categorically stated that the Master's Summons along
with the petition being GA/3/2023 was submitted to the
department after filing the affidavit of competency in the Suit
Registry Department on 20th April, 2023. Admittedly the affidavit of
competency was filed on 20th April, 2023. Upon completion of
scrutiny of the Master's Summons along with the petition, the
same was issued on the same date i.e., 20th April, 2023 on which
date the affidavit of competency was filed. The Master and Official
Referee in the report has also highlighted the following facts:-
"It has been observed that sometimes the Advocate concerned
takes two-three days or more to cure the defects. The fact
cannot be denied that it is the onus on the Learned Advocates
concerned to cure the defects. Unless the defects are cured,
the department is unable to issue the Master's Summons.
In addition to the aforesaid, Your Lordships are also being
apprised that in some cases, applications/affidavits/petitions
affirmed long back and endorsement of filing of Vakalatnama
and/or Affidavit of Competency made thereon were submitted
to the department for scrutiny and issuance of the same on a
much later date. A copy of such affidavit affirmed on 19th
January, 2024 and submitted before this department on 10th
February, 2025 for scrutiny and issuance, is being humbly
placed herewith for ready reference (Flag "Z").
In view of the above, the date of affirmation of the
affidavit/petition/application cannot be reckoned as the date
of submission of the same to the department for scrutiny and
issuance."
11. The difficulty being faced by this Court is the appellability of the
order in view of Section 13(1-A) read with 13(2) of the Commercial
Courts Act, 2015. If we are endowed with the power to decide the
appellability on the anvil of Clause 15 of the Letters Patent, then
possibly we could have held that the said order would be beyond
the jurisdiction of the learned Single Judge in extending the said
period.
12. The impact of the aforesaid provisions has been considered in
Kandla Export Corporation and Another vs. OCI Corporation and
Another reported in (2018) 14 SCC 715 in which the proviso to the
aforesaid Section 13(1-A) was considered vis-a-vis the appellability
of such order under the Letters Patent. Paragraphs 13 and 14 of
the said judgment are stated below for convenience:-
"13. Section 13(1) of the Commercial Courts Act, with which
we are immediately concerned in these appeals, is in two
parts. The main provision is, as has been correctly submitted
by Shri Giri, a provision which provides for appeals from
judgments, orders and decrees of the Commercial Division of
the High Court. To this main provision, an exception is carved
out by the proviso. The primary purpose of a proviso is to
qualify the generality of the main part by providing an
exception, which has been set out with great felicity in CIT v.
Indo-Mercantile Bank Ltd., thus: (SCR pp. 266-267: AIR pp.
717-18, paras 9-10)
"9...The proper function of a proviso is that it
qualifies the generality of the main enactment by
providing an exception and taking out as it were, from
the main enactment, a portion which, but for the proviso
would fall within the main enactment. Ordinarily it is
foreign to the proper function of a proviso to read it as
providing something by way of an addendum or dealing
with a subject which is foreign to the main enactment.
'8...it is a fundamental rule of construction that a
proviso must be considered with relation to the
principal matter to which it stands as a proviso'.
Therefore it is to be construed harmoniously with the main
enactment. (Per Das, C.J. in Abdul Jabar Butt v. State of
Jammu & Kashmir, SCR p. 59 : AIR p. 284, para 8).
Bhagwati, J., in Ram Narain Sons Ltd. V. CST, said : (SCR p.
493: AIR p. 769, para 10)
'10. It is a cardinal rule of interpretation that a
proviso to a particular provision of a statute only
embraces the field which is covered by the main
provision. It carves out an exception to the main
provision to which it has been enacted as a proviso
and to no other.'
10. Lord Macmillan in Madras & Southern Maharatta Railway
Co. v. Bezwada Municipality laid down the sphere of a proviso
as follows: (IA p. 122 : SCC OnLine PC)
'...The proper function of a proviso is to except and
deal with a case which would otherwise fall within
the general language of the main enactment, and its
effect is confined to that case. Where, as in the
present case, the language of the main enactment is
clear and unambiguous, a proviso can have no
repercussion on the interpretation of the main
enactment, so as to exclude from it by implication
what clearly falls within its express terms.'
The territory of a proviso therefore is to carve out an exception
to the main enactment and exclude something which
otherwise would have been within the section. It has to
operate in the same field and if the language of the main
enactment is clear it cannot be used for the purpose of
interpreting the main enactment or to exclude by implication
what the enactment clearly says unless the words of the
proviso are such that that is its necessary effect. (Vide also
Toronto Corpn. v. Attorney-General for Canada, AC p. 37)"
14. The proviso goes on to state that an appeal shall lie from
such orders passed by the Commercial Division of the High
Court that are specifically enumerated under Order 43 of the
Code of Civil Procedure Code, 1908, and Section 37 of the
Arbitration Act. It will at once be noticed that orders that are
not specifically enumerated under Order 43 of the CPC would,
therefore, not be appealable, and appeals that are mentioned
in Section 37 of the Arbitration Act alone are appeals that can
be made to the Commercial Appellate Division of a High
Court."
13. On such consideration, we dismiss the appeal as not
maintainable.
(SOUMEN SEN, J.)
(BISWAROOP CHOWDHURY, J.)
R.Bhar/kc
