Calcutta High Court
Jai Durga Express Logistics Llp And Ors vs Mahamani Plaza Pvt. Ltd on 2 January, 2025
Author: Soumen Sen
Bench: Soumen Sen
OD-2
ORDER SHEET
APOT/346/2024
WITH
CS/54/2023
IA NO: GA/1/2024
IN THE HIGH COURT AT CALCUTTA
Civil Appellate Jurisdiction
ORIGINAL SIDE
JAI DURGA EXPRESS LOGISTICS LLP AND ORS.
VERSUS
MAHAMANI PLAZA PVT. LTD.
BEFORE:
The Hon'ble JUSTICE SOUMEN SEN
AND
The Hon'ble JUSTICE BISWAROOP CHOWDHURY
Date : 2nd January, 2025.
Appearance:
Mr. Nirmalya Dasgupta, Adv.
Mr. Moti Sagar Tiwari, Adv.
Ms. Shweta Poddar, Adv.
...for the appellant
Mr.Shailendra Jain, Adv.
Ms. Swati Agarwal, Adv.
..for respondent/plaintiff
1. The appeal is arising out of an order passed by the learned Single Judge
dismissing two applications, one for condonation of delay in entering
appearance and the other challenging the nature of the transaction.
2. We have read the judgment carefully.
3. It appears that there has been acknowledgment of a debt of over Rs.25
lakhs with interest. However, in view of the fact that the prayer for leave to
defend was not allowed, the appellant could not deliver the defence.
4. Prima facie, it does not appear to be a commercial transaction. On that
score, we concur with the view expressed by the learned Single Judge. It
seems to us that the said plea was taken to delay the hearing of the
summary suit. The summary suit is governed by the special provisions
and the procedure to be followed in the case of a hearing of a summary
suit has been lucidly explained by Late Justice Bijitendra Mohan Mitra in
Universal Cable Ltd. vs. West Bengal State Electricity Board reported at
101(2) CWN 148. In this regard, we may refer to the decision of our Court
in Universal Cable Ltd. vs. West Bengal State Electricity Board reported in
101 (2) CWN 148. The relevant observations are as follows:
"It has been submitted by Mr. Chatterjee that the learned trial
Court is in welter of confusion as the court below was not conscious
of the categorical and imperative distinction as regards the
procedure which is to be followed in a regular suit and in a
proceeding under Order 37 of the Code of Civil Procedure. It is
needless to mention that Order 37 is a special summary procedure
which cannot be equated to that of the course of prosecution of a
procedure in a regular suit. Otherwise there would have been no
efficacy for notification or incorporation of Order 37 in the body of
the Civil Procedure by way of separate species of procedure
canvassed for disposal of the matter which comes under the four
corners of the summary proceeding. In support of his contention Mr.
Chatterjee has relied on a case of J.B. Ross & Co. v. C.R. Scrivan &
Ors, reported in AIR 1917 Calcutta 269 where the Division Bench of
this Court has held that a court cannot pass a decree except in suits
on negotiable instrument governed by the provisions of Order 37
Rule 2. No decree can legally be given without evidence in a case
where the defendant does not choose to contest except in suits on
negotiable instruments governed by the provisions of Order 37 Rule
2 of the Code of Civil Procedure. We find even concurrence by
Woodroffe J. who has been pleased to hold that according to Rule 2
Sub-rule (2) of the Order 37, in default of obtaining leave to appear
and defend, the allegations of the plaint shall be deemed to be
admitted and the plaintiff shall be entitled to a decree.
*** *** ***
The trial court seems to have gone wrong by treating the
procedure by fixing a matter of a summary proceeding in ex-parte
board where the implications are required to flow by operation of the
para-materia for not applying for leave to defend within the time as
prescribed. Therefore, if on the expiry of a period for more than 8
months, a purported application is sought to be made for
condonation of delay that will have germane effect of making erosion
of the entire special procedure as contemplated in a summary
proceeding contained under Order 37 of the Code of Civil Procedure.
Accordingly, the order impugned suffers from material irregularity in
exercise of the jurisdiction and the same is liable to be set aside and
the court is directed to deliver a judgement on following the deeming
effect of the admission of the allegations contained in the plaint for
non-appearance of the defendant with a prayer to leave to defend."
5. The delay in the said case appears to be inexcusable and Justice Mitra
taking into consideration such inordinate delay and a clear admission, set
aside the order.
6. In the instant case, there is a delay of about 45 days. In view of Order
XXXVII Rule 3 Sub-Rule 2, there has to be a deemed service to which the
appellant could not have denied his responsibility of not entering
appearance within 10 days and thereafter on service of summons for
judgment in Form-4A, Appendix B, an affidavit may be filed in terms of
Order XXXVII Rule 3(5) of the Code of Civil Procedure.
7. In view of the facts stated in the application and the circumstance for
which the appellants were unable to enter appearance, although a defence
of a dishounoured cheque mostly appearing to be sketchy, however, we
want to give an opportunity to the appellant to defend the suit provided
the appellants deposit Rs.30 lakhs with the Registrar, Original Side within
three weeks from date. In default, the suit may be heard as an ex parte
suit.
8. The Registrar, Original Side shall deposit the said amount in a short term
fixed deposit account with any nationalised bank and shall keep it
renewed till the disposal of the suit or any further order which may be
passed in the application for final judgment.
9. In the event of deposit of the said sum within the aforesaid time, the
advocate-on-record of the plaintiff upon such intimation being received
shall serve the advocate-on-record of the defendant a summons for
judgment in Form No.4A, Appendix B within a week thereafter and the
defendant shall file an affidavit in terms of Order XXXVII Rule 3 Sub-Rule
5 within two weeks thereafter. The said direction is peremptory.
10. The appeal and the application are disposed of.
11. We make it clear that the application for summary judgment shall be
decided uninfluenced by any observation made in this order.
12. The advocate-on-record of the appellants shall intimate compliance of this
order upon the advocate-on-record for the respondent/plaintiff.
(SOUMEN SEN, J.)
(BISWAROOP CHOWDHURY, J.)
bp/R.Bhar
