Calcutta High Court
Ifb Industries Limited vs National Insurance Company Limited on 21 March, 2025
OCD-9
ORDER SHEET
IN THE HIGH COURT AT CALCUTTA
COMMERCIAL DIVISION
ORIGINAL SIDE
CS-COM/601/2024
IA NO: GA-COM/2/2025
IFB INDUSTRIES LIMITED
-VS-
NATIONAL INSURANCE COMPANY LIMITED
BEFORE:
The Hon'ble JUSTICE KRISHNA RAO
Date: March 21, 2025.
Appearance:
Mr. Jishnu Chowdhury, Sr. Adv.
Mr Shatanshu Panda, Adv.
Mr. Anunoy Basu, Adv.
Mr. Ritoban Sarkar, Adv.
Sayani Kumar Banerjee, Adv.
...for the plaintiff
Mr. Ishaan Saha, Adv.
Ms. Sananda Ganguli, Adv.
...for the defendant
1.
Mr. Jishnu Chowdhury, learned Senior Advocate, is appearing
for the plaintiff.
2. Mr. Ishaan Saha, learned Advocate, is appearing for the
defendant.
3. The defendant has filed the present application being GA-
COM/2/2025 praying for condoning the delay of 118 days in filing the
written statement and prayed for taking the written statement on record.
Counsel for the defendant submits that writ of summons was served upon
the defendant on 11th September, 2024 and the defendant entered into
appearance on 7th November, 2024. He submits that one Mr. Rakesh Parida
who was the Assistant Manager of the defendant and was handling the
alleged claim of the plaintiff, was transferred to Berhampore Branch as
Branch Manager on 27th January, 2022. He submits that one Mr. Sumit
Kumar Bhar who was the Divisional Manager-in-Charge of Salt Lake
Division Office of the defendant and also acting as an underwriting Officer
of the Multi Transit Merine Policy and Standard Fire and Special Policy
dated 24th December, 2018 on behalf of the defendant company who has
executed the Revised Standard Fire and Special Perlis Policy incorporating
the change in the insured premises from the defendant's Avvashya Godown
to the Babra Godown and also who had issued the letter of repudiation
dated 8th September, 2021 on behalf of the defendant company has retired
on 31st December, 2021. Learned Counsel for the defendant submits that
one Mr. Santosh Shaw, Deputy Manager, CRO-I of the defendant who was
handling the alleged claim of the plaintiff has been transferred to Sealdah
Business office on and from 1st November, 2024. He submits that the
empanelled Advocate of the defendant has got fractured and undergone
surgery on 5th November, 2024 due to which she was unable come to the
office and to hold the conference with the defendant and receive necessary
instruction. It is only in or about third week of November, 2024, the
empanelled Advocate held the conferences with the defendant and drafts
statement was prepared by the Junior Advocate of the defendant duly made
over to the defendant for approval. Counsel for the defendant submits that
on receipt of the draft written statement, by the Officers of the defendant,
several observations were made and the learned Advocate after
incorporating the observations made by the Officers of the defendant
company has settled the written statement through the learned Senior
Advocate on 16th December, 2024 and made over to the defendant on 23 rd
December, 2024. He submits that on 3rd January, 2025, the defendant was
able to approve the written statement and, thereafter, the written
statements were made ready and affirmed on 6th January, 2025.
4. Counsel for the defendant submits that though the defendant
could not file the written statement within the prescribed period of 30 days
but it was affirmed and filed in the department with the leave of the Court
on 6th January, 2025 i.e. 118th days from the date of receipt of writ of
summons. Counsel for the defendant submits that the defendant has
explained the delay as to why the written statement could not be filed
within the period of 30 days but the defendant has explained that within
the outer period of 120 days, the defendant has affirmed the affidavit of
written statement and with the leave of this Court, the same was filed in the
department on 7th January, 2025 subject to acceptance of the written
statement. Counsel for the defendant submits that though the defendant
could not file the written statement within the prescribed period of 30 days
but affirmed and filed the written statement within the outer period of 120
days and he prayed for acceptance of the written statement.
5. Per Contra, learned Counsel appearing for the plaintiff has
raised objection and submits that the affidavit affirmed by the deponent in
GA-COM/2/2025 is totally false and incorrect. He submits that Mr. Rakesh
Parida who was working as Associate Manager of the defendant company
was transferred on 27th January, 2020 i.e. much prior to the receipt of writ
of summons. Mr. Chowdhry, learned Senior Advocate appearing for the
plaintiff submits that Mr. Sumit Kumar Bhar who was the Divisional
Manager of the defendant office, has been only given the attesting portfolio
of the general claim HUB, on a CRO-I until further order in addition to his
own work. He submits that the defendant in the affidavit has stated that
Mr. Sumit Kumar Bhar who was the Divisional Manager of the in-charge of
Salt Lake Division has retired on 31st December, 2021, it is proved that he
was not in the office when the writ of summons was served and he was not
in any of the posts of the defendant company. Mr. Chowdhury also submits
that Mr. Santosh Shaw who was the Deputy Manager, CRO-1 of the
defendant company who was alleged to handling the claim of the plaintiff
was never transferred as alleged by the defendant. Learned Counsel for the
plaintiff has referred the order dated 28th October, 2024 wherein Mr.
Santosh Shaw was only given the additional charge and he has not been
transferred. He submits that the averment made in the affidavit is not
correct. Mr. Chowdhury submits that that the statement made by the
defendant that Mr. Santosh Shaw was transferred to Sealdah Business
office is an incorrect statement and only to take the benefit from this Court
for acceptance of the written statement has made false and incorrect
statement.
6. Learned Counsel for the defendant further submits that the
defendant in the reply to the present application has taken the stand that
the statement of truth was not served along with writ of summons. When
the plaintiff has received the reply from the defendant and found that the
defendant has taken the stand, immediately, the advocate on record of the
plaintiff by a letter dated 6th February, 2025, has forwarded the statement
of truth to the learned Advocate on record of the defendant on 6th February,
2025 but the learned advocate on record of the defendant refused to accept
the same. He submits that the defendant has not come to the Court with
clean hands and thus the defendant is not entitled to get any order from
this Court.
7. The plaintiff has relied upon the judgment in the case of Amit
Singh Rawal and Others Vs. DGHS and Others reported in (2000) 9 SCC
304 and submits that the Hon'ble Supreme Court has held that in the
highest Court of land, affords has been made to conceal the truth and file
affidavits prima facie containing false averments, the matter needs to be
dealt with sternly by law.
8. Learned Counsel for the plaintiff has also relied upon the
judgment in the case of New Okhla Industrial Development Authority
versus Rabindra Kumar Singhvi (dead through legal representatives)
reported in (2022) V 5 SCC 591 wherein the Hon'ble Supreme Court held
that false filing of a false affidavit disentitles the plaintiff for any equitable
relief.
9. Relying upon the aforesaid judgments, learned Counsel for the
plaintiff submits that in the present case also, the defendant has filed a
false affidavit stating that Mr. Shaw Deputy Manager, CRO-I has been
transferred, though he has not been transferred, rather he has been given
only the additional charges of the office and secondly stated that in
paragraph 10, the defendant has also made a false statement that Sumit
Kumar Bhar has issued the letter of repudiation dated 8th September, 2021
but the said statement is also not correct wherein the defendant in
paragraph 6 has stated that Mr. Rakesh Parida who was at that point of
time holding the designation of the Assistant Manager of the company
issued the letter dated 8th September, 2021 by repudiating the claim of the
plaintiff.
10. Considered the submissions made by the counsel for the
respective parties. Perused the materials on record and the judgments
relied upon by the plaintiff.
11. The defendant has filed the present application for extension of
time to file the written statement. Admittedly, the defendant has received
the writ of summons on September 11, 2024 but has not filed the written
statement within the prescribed period of 30 days. The copy of the written
statement is enclosed with the present application. From the copy of the
written statement, it reveals that the defendant has affirmed the affidavit on
6th January, 2025 and has obtained the leave from this Court on 8th
January, 2025 and filed the same in the department on 8th January, 2025,
subject to acceptance by this Court but the defendant has filed the present
application on 9th January, 2025. The plaintiff has raised the issue that
the averment made in the present application is not correct and the
defendant has made false affidavit and as such the statement made by the
defendant cannot be taken into consideration and no equitable relief can be
granted.
12. It is the admitted case of the defendant that Rakesh Parida has
issued the letter dated 8th September, 2021 by repudiating the claim of the
plaintiff. The defendant has made out a case that Rakesh Parida and
Sumit Kumar Bhar both have dealt with the claim of the plaintiff but Mr.
Parida transferred from the office and Mr. Sumit Kumar Bhar has retired
from service on 31st December, 2021, thus, issuance of repudiation dated
8th September, 2021 either by Mr. Parida or by Mr. Bhar will no way effect
the present application as the repudiation dated 8th September, 2021 is the
subject matter of suit. The defendant has made out a case that the said
persons were dealt with the claim of the plaintiff and the they were not in
the office of the defendant when the writ of summons were issued due to
which delay is caused to file written statement.
13. As regard the statement that Santosh Kumar Shaw is not
transferred but only additional charge to act as Senior Business Manager of
Kolkata, Sealdah Business Office in addition his existing portfolio of general
claims HUB-CR01 was given. Though, Mr. Santosh Kumar Shaw is not
transferred but as per the case of defendant, Mr. Shaw is assigned the duty
of Senior Business Manager of Sealdah Branch due to defendant was not
able to file Written Statement. Learned Advocate representation the
defendant submits that Mr. Shaw is mainly sitting in the office of Sealdah
Branch.
14. The Court has to see whether the defendant has explained the
delay why he has not filed the written statement within the period of 30
days. The case of the defendant is that officers were transferred or retired
who dealt with the claim of the plaintiff due to which the defendant could
not collect the document and the defendant could not file the written
statement. It is also the case that advocate on record of the defendant
under same survey. Only on the basis that some of the statements made
by the defendant, are not in consonance with the document, it cannot be
said that defendant has made false statement. The Court, in the present
application, has to see whether the explanation made by the defendant is
acceptable or not.
15. This Court finds that in each and every paragraphs, the
defendant has dealt with the matter after receipt of the writ of summons.
16. The first step the defendant has taken is that on receipt of the
writ of summons, they have started collecting the documents but found
that the person, who was dealing with the case, was transferred, the second
officer has retired and the third officer has been given dual charges. The
advocate on record who has to prepare the written statement has met with
an accident. Subsequently, when she was recovered and held conferences
with the officer and draft written statement was prepared. The judgment
relied upon by the plaintiff there is no dispute with regard to legal position.
This Court has already held that mere making one statement with regard to
the date on signing of the repudiation and transfer of the officer of the
defendant cannot be said that the same is a false statement. This Court
satisfied that the defendant has explained the delay for not filing the
written statement within the prescribed period of 30 days but has filed the
written statement within the outer period of 120 days.
17. Accordingly, this Court is of the view that an opportunity is to
be given to the defendant to file the written statement but subject to the
payment of costs of Rs.10,000/- to the State Legal Services Authority
within one week from date.
18. The defendant is directed to pay the costs of Rs.10,000/- to the
State Legal Services Authority within one week from date.
19. The Department is directed to accept the written statement
subject to scrutiny by the department.
20. GA-COM/2/2025 is disposed of.
(KRISHNA RAO, J.)
S.Mandi
