Tirupati Commercial vs Balaji Traders And Anr
2025 Latest Caselaw 2971 Cal/2

Calcutta High Court

Tirupati Commercial vs Balaji Traders And Anr on 10 November, 2025

Author: Aniruddha Roy

Bench: Aniruddha Roy

                          In the High Court at Calcutta
                              Commercial Division
                                 Original Side

        Judgment (2)


PRESENT :
THE HON'BLE JUSTICE ANIRUDDHA ROY


                                          IA NO. GA-COM/4/2025
                                            In CS-COM/6/2023

                                         TIRUPATI COMMERCIAL
                                                  VS
                                        BALAJI TRADERS AND ANR


For the plaintiff                : Mr. Rishabh Karnani, Adv.
                                   Mr. Akash Chakraborty, Adv.


For the defendant No.1           : Mr. Pranit Bag, Adv.
                                   Ms. Amani Kayam, Adv.
                                   Mr. Zubeen Pandey, Adv.

For the defendant No.2           : Mr. Pourush Bandyopadhyay,
                                   Mr. Dipankar Das, Adv.
                                   Mr. Ram Ratan Modi, Adv.


Heard on            : November 10, 2025

Judgment on         : November 10, 2025



ANIRUDDHA ROY, J :

FACTS:

1. The master summons has been taken out by the defendant no.2,

inter alia, praying for extension of time to file written statement in

IA No. GA-COM/4/2025 In CS-COM/6/2023 A.R., J.

a commercial suit beyond 30 days but within 120 days from

service of writ of summons.

2. The averments made in paragraph 3 to the affidavit in support of

master summons shows that there is a delay for about 86 days

beyond 30 days. The writ of summons was received by the

applicant/defendant no.2 on July 14, 2025. The master summons

has been taken out on November 7, 2025, which was on 116th

day. The principal grounds pleaded in the supporting affidavit in

support of reliefs claimed in the master summons are quoted

below:

"4. I say that the National Company Law Tribunal, Kolkata Bench vide an order dated 06.05.2022 in C.P. (IB) No. 1540/KB/2019, admitted the application filed by one Mr. Jai Kishor Gupta, being the operational creditor, under Section 9 of Insolvency and Bankruptcy Code, 2016, for initiation of the Corporate Insolvency Resolution Process of the Corporate Debtor i.e., the defendant No. 2 herein.

5. I say that during the said Corporate Insolvency Resolution Process of the Corporate Debtor i.e., the defendant No. 2 herein, a resolution plan submitted by the consortium of one Pinax Paper Mills Private Limited and Pinax Steel Industries Private Limited was approved by the Learned National Company Law Tribunal, Kolkata Bench on 12.01.2024 in I.A. (IB) No. 1842/KB/2023 in C.P. (IB) No. 1540/KB/2019, after the above resolution plan was approved by committee of creditors of the defendant No. 2 with 100% voting in 13 th CoC meeting held on 25.09.2023 (e-voting concluded on 7.10.2023) in its favour.

IA No. GA-COM/4/2025 In CS-COM/6/2023 A.R., J.

6. I say that plaintiff has filed several documents which needed examination and subsequent to the completion of Corporate Insolvency Resolution Process (CIRP) of the Corporate Debtor i.e., the defendant No. 2 herein, the successful Resolution Applicant (new management) has taken over through the said process of CIRP as per the provisions of the Insolvency and Bankruptcy Code, 2016 and it took time for the Successful Resolution Applicant (new management) to understand and seek clarification of the entire facts and circumstances of the plaint and to ascertain veracity of documents and records relating to the pre-CIRP period. However, in the last week of October, 2025, the entire picture became clear to the defendant No. 2 and the defendant No. 2 immediately looked for legal help.

7. I say that the delay, if any, in filing the written statement is wholly unintentional, inadvertent and in no manner aimed at delaying or digressing from the process of this Hon'ble Court. Any delay is solely on account of the fact that the defendant No. 2 wished to ascertain the veracity of the plaintiff's claims thoroughly before averring any stance before this Hon'ble Court.

8. I say that the defendant No. 2 has diligently prosecuted the present suit. It is respectfully submitted that the defendant No. 2 is not attempting to delay the proceedings, in any manner. In these circumstances, the delay, if any, in filing has neither caused any prejudice to the plaintiff nor had delayed the present proceedings and was also due to the time taken by the Successful Resolution Applicant (new management) to understand and seek clarification of the entire facts and circumstances of the plaint subsequent to the completion of Corporate Insolvency Resolution Process

IA No. GA-COM/4/2025 In CS-COM/6/2023 A.R., J.

(CIRP) of the Corporate Debtor i.e., the defendant No. 2 herein."

SUBMISSIONS:

3. Mr. Rishabh Karnani, learned Counsel appearing for the plaintiff

refers to copy of the plaint and submits that the plaintiff has filed

the suit for recovery of unpaid consideration on account of goods

sold and delivered to the defendant no.1. The defendant no.1 has

failed and neglected to pay the price of the goods to the plaintiff. At

the request of the defendant no.1, the goods were supplied to the

defendant no.2, who has accepted the goods on behalf of the

defendant no.1.

4. Mr. Pourush Bandyopadhyay, learned Advocate appearing for the

defendant no.2 submits that the defendant no.1 initially had

undergone a resolution proceeding before the jurisdictional NCLT

and finally the proceeding has concluded on January 12, 2024

when the present management has taken over the defendant no.2

in view of the resolution scheme.

5. Learned Counsel for the defendant no.2 then submits that after

gathering all the records it took a substantive time for the

defendant no.2 to prepare the written statement. The written

statement has already been affirmed on November 7, 2025 on the

116th day itself.

IA No. GA-COM/4/2025 In CS-COM/6/2023 A.R., J.

DECISION :

6. After considering the rival contentions of the parties and on

perusal of the materials on record, it appears to the Court that, so

long 120th day from the date of service of writ of summons does not

expire, the defendant has right to claim an extension, of course, if

the grounds are accepted to the Court under the amended

provisions of Order VIII Rule 1 of the Code of Civil Procedure.

7. Furthermore, when the legislature thought it fit to introduce a

provision for awarding costs as the Court deems fit, under the said

amended provision of CPC, this Court is of the firm view that, upon

payment of costs by the defaulting party a curative provision has

been laid down by the legislature so that the defaulting party shall

not be debarred from taking its defence to the claims made by the

suiter against it in an action subject to restriction of 120 days as

provided thereunder and subject to the satisfaction of the Court.

8. Right to file written statement is also statutory right which is in

conformity with the elementary principle of natural justice. If the

defendant is denied of its right of filing written statement, if it is

otherwise permitted to be filed by extending the time to be

extended by the Court within the meaning of the four-corners of

the relevant statute, such valuable right to defend the proceeding

by the defendant should not be defeated. For procedural lapses,

IA No. GA-COM/4/2025 In CS-COM/6/2023 A.R., J.

substantive justice should not suffer by taking away the

substantive right of a party.

9. After considering the averments made in the supporting affidavit

and upon hearing the parties on their respective contentions, this

Court finds that sufficient cause has been made out and the

defendant no.1 should not be shut out from filing the written

statement since they are within the mandate of 120 days provided

under Order VIII Rule 1 of CPC.

10. Time to file written statement stands extended till today by the

defendant no.2 before the department concerned subject to

payment of costs of Rs.50,000/- to be paid by the defendant no.2

in favour of the State Legal Aid Services Authority, West Bengal

within three working days from date.

11. The written statement shall be filed and accepted by the

department concerned today.

12. The defendant no.2 shall produce its money receipt showing

payment of costs to the learned Advocate on Record for the plaintiff

immediately upon payment and in the event, the costs is not paid,

the written statement shall be returned and no cognizance shall be

taken thereupon.

13. The defendant no.2 shall serve a copy of the written statement

upon the learned Advocate on Record for the plaintiff by

tomorrow.

IA No. GA-COM/4/2025 In CS-COM/6/2023 A.R., J.

14. With the above observations and directions, this application IA No.

GA-COM/4/2025 stands allowed.

(ANIRUDDHA ROY, J.)

RS

IA No. GA-COM/4/2025 In CS-COM/6/2023 A.R., J.