Calcutta High Court
Uskom Komunikasyon Sistemleri Tahut Ve ... vs Techno Electric And Engineering Co on 12 June, 2025
OCD-26
ORDER SHEET
IN THE HIGH COURT AT CALCUTTA
COMMERCIAL DIVISION
ORIGINAL SIDE
CS-COM/663/2024
IA NO:GA-COM/2/2025
USKOM KOMUNIKASYON SISTEMLERI TAHUT VE TICARET A S
VS
TECHNO ELECTRIC AND ENGINEERING CO
BEFORE:
The Hon'ble JUSTICE KRISHNA RAO
Date: June 12, 2025.
Appearance:
Mr. Samriddha Sen, Adv.
Mr. Sourjya Roy, Adv.
...for the plaintiff
Mr. Aritra Basu, Adv.
Mr. Aman Agarwal, Adv.
Mr. Sanket Sarawgi, Adv.
...for the defendant
1.
Mr. Samriddha Sen, learned Advocate, is appearing for the
plaintiff.
2. Mr. Aritra Basu, learned Advocate, is appearing for the defendant.
3. Defendant has filed the present application being GA-
COM/2/2025 praying for condoning the delay of 89 days in filing written
statement to the counter-claim filed by the defendant. Counsel for the plaintiff
submits that the defendant has filed the written statement along with the
counter-claim on 17th September, 2024, subject to acceptance but the same
was accepted by this Court by an order dated 4 th October, 2024.
4. Counsel for the plaintiff submits that due to intervening Court
holidays on and from 9th October, 2024 to 2nd November, 2024, written
statement to the counter-claim could not be prepared within 30 days, i.e.,
within 3rd November, 2024. He submits that the plaintiff company incorporated
in the Republic of Turkey with the registered office at Istanbul due to which,
the advocate on record of the plaintiff received all documents only on 31 st
December, 2024 and on receipt of the same, additional written statement to the
counter-claim was prepared and filed on 1 st February, 2025 i.e. on the 120th
day.
5. Counsel for the plaintiff submits that there is no willful and
deliberate delay on the part of the plaintiff as there was vacation and registered
office of the plaintiff is outside India, due to the which the Advocate-on-record
of the plaintiff received all documents only on 31 st December, 2024 for
finalization of the written statement to the counter-claim. He prays for
condoning delay and for acceptance of the written statement.
6. Learned Counsel for the plaintiff has taken a further additional
ground by relying upon the judgment in the case of A. K. Ghosh and
Company and Others vs. Biman Bose and Others, reported in 2025 SCC
Online Cal 1781, wherein the Hon'ble Appellate Court has held that the
period of filing the written statement by the plaintiff in response to the counter-
claim filed by the defendant shall be reckoned from the date on which the
notice along with the copy of the counter-claim is served by the registry of this
Court on the plaintiff or his advocate, as the case may be. He submits that in
the present case, though the defendant has filed the written statement with the
leave of this court on 4th October, 2024, but the scrutiny was completed on
24th April, 2025 and the corrected copy of the written statement was served
upon the plaintiff on 8th May, 2025, and as such, if going by the timeline fixed
by the Hon'ble Division Bench, there is no delay in filing the written statement
to the counter-claim.
7. Per contra, learned Advocate appearing for the defendant submits
that the written statement was served upon the plaintiff on 18 th September,
2024, and as such, time to file written statement has long expired before the 1 st
February, 2025, thus this court cannot extend the time for filing the written
statement to the counter-claim.
8. Learned Counsel for the defendant further raised an objection to
the effect that the plaintiff has filed the written statement to the counter-claim
by disclosing further documents which is also not permissible under Order XI
Rule 3 of the Code of Civil Procedure, as amended, under the Commercial
Court Act, 2015. He submits that plaintiff has filed the suit and at the time of
filing the suit, the plaintiff has filed all the documents which were in its
possession. He relied upon Order XI of the Code of Civil Procedure, as
amended, under the Commercial Court Act, 2015 and submits that as per
amended provision of the Code of Civil Procedure, the plaintiff has to disclose
all the documents, which were in possession of the plaintiff but in the present
case, the plaintiff has disclosed the documents along with the counter-claim
which were in possession of the plaintiff at the time of filing of the suit but the
plaintiff has not disclosed the said documents and as such the said documents
also cannot be taken on record.
9. Learned Counsel for the defendant further raised objection that the
judgment passed by the Hon'ble Division Bench is not applicable in the case of
the plaintiff as the said guidelines are applicable with effect from 1 st March,
2025, but this suit is of 2024 and the written statement was filed prior to the
1st March, 2025.
10. Counsel for the defendant further brought to the notice of this
court to the affidavit affirmed by the plaintiff in the written statement to the
counter-claim which is on 30th January, 2025, and admittedly the same was
filed on 1st February, 2025 and he submits that the written statement was filed
on 1st February, 2025, but as per the order passed by the Hon'ble Division
Bench, the guidelines are applicable with effect from 1 st March, 2025, thus, on
the face of the record, the judgment is not applicable in the case of the plaintiff.
11. Heard the Counsel for the respective parties. Perused the materials
on record and the judgment relied by the plaintiff.
12. Initially the defendant could not file the written statement within
the period of 30 days and accordingly the defendant has taken leave from this
Court to file written statement and accordingly on 17 th September, 2024, this
Court granted leave to the defendant to file the written statement in the
department subject to acceptance by this Court and subsequently the
application filed by the defendant for extension of time to file written statement
was taken up for hearing on 4th October, 2024, and by an order dated 4 th
October, 2024, this court accepted the written statement filed by the defendant
along with the counter-claim and on the same date the copy of the written
statement along with the counter-claim was served upon the plaintiff.
13. This Court finds that the plaintiff has filed the written statement to
the counter-claim affirmed on 30th January, 2025, and filed before this court
on 1st February, 2025, that is on 120th day.
14. The plaintiff has taken ground in the instant application that
though the written statement along with the counter-claim was served upon
the plaintiff on 4th October, 2024, but on and from 9th October, 2024, the
vacation of this Court starts and it was reopened only on 3 rd November, 2024.
It is also the ground of the plaintiff that the plaintiff company incorporated in
the Republic of Turkey with its registered office at Istanbul and all officers who
dealt with the case are residing outside of India and the advocate on record of
the plaintiff received all documents only on 31 st December, 2024.
15. This court finds that the judgment passed by the Hon'ble Division
Bench in the case of A. K. Ghosh and Company and Others vs. Biman Bose
and Others, is not much relevant in the present case as the plaintiff has filed
the additional written statement to the counter-claim on the 120 th day along
with an application for condoning the delay and acceptance of the written
statement. The Hon'ble Division Bench in the guidelines categorically stated
that this guideline will be with effect from 1 st March, 2025. Though, after the
order passed by the Hon'ble Division Bench, the department has scrutinized
the written statement filed by the defendant in the month of April, 2025, but
the fact remains the plaintiff has filed the written to the counter-claim on 1 st
February, 2025. Thus, the order passed by the Hon'ble Division Bench will not
apply in the present case. Though the plaintiff has not filed additional written
statement to counter-claim within a period of 30 days but has filed the written
statement on the 120th day. This court also finds that the plaintiff has shown
sufficient cause why the plaintiff could not file the written statement to the
counter-claim within the period of 30 days.
16. Considering the above, this court finds that the plaintiff has shown
sufficient cause for non-filing of the additional written statement to the
counter-claim within 30 days but has filed the written statement within the
period of 120 days. Thus, the written statement to the counter-claim filed by
the plaintiff is accepted.
17. Now, with regard to the document which the plaintiff has relied
along with the additional written statement to the counter-claim. It is admitted
that while filing of the suit by the plaintiff, the plaintiff has disclosed the
documents and filed the affidavit of document. The plaintiff has disclosed the
documents in the counter claim in support of the case made out in the
counter-claim. The defendant has raised the question that the documents
which the plaintiff has relied upon is prior to filing of the suit and the plaintiff
was in possession of the said document. It is the further case of the defendant
the facts of the counter-claim and the facts of the written statement and the
case made out in the plaint are having similar fact, thus, it cannot be said that
the said document is not related to the plaint case.
18. This Court finds that when the plaintiff has filed the suit what the
plaintiff intended to rely upon the document has disclosed the same in the
plaint. But subsequent to filing of the written statement along with the
counter-claim the plaintiff finds that the document which the plaintiff has not
relied in the original suit is necessary for the purpose of the counter-claim
raised by the defendant and accordingly by way of additional written statement
to the counter-claim, the plaintiff has disclosed the said in the additional
written statement .
19. Order XI Rule 7 provides that the defendant shall file a list of the
documents and photocopies of all documents in its power, possession, control
or custody pertaining to the suit along with the written statement or with the
counter-claim, if any.
20. In the present case though the plaintiff is the original plaintiff but
once the counter-claim has been filed, the plaintiff has become a defendant in
the counter-claim and the plaintiff has filed additional written statement to the
counter-claim. Once the plaintiff has filed additional written statement to the
counter-claim, Order XI Rule 7 will be applicable to the plaintiff with regard to
the written statement to the counter-claim and the plaintiff is entitled to
disclose documents if any in support of additional written statement to the
counter-claim.
21. Thus, it cannot be said that the document relied by the plaintiff in
the counter-claim is not acceptable if the document available with the plaintiff
at the time of filing of the suit.
22. Considering the above, this Court accepts the said document but
subject to proving the said document by the parties at the time of trial of the
case.
23. In view of the above, GA-COM/2/2025 is disposed of.
(KRISHNA RAO, J.)
S.De
