[Cites 5, Cited by 0]
Calcutta High Court
K.A.S Zainulabdin & Co vs Gokul Chand Manoj Kumar And Sons (Gm & ... on 18 March, 2026
Author: Arindam Mukherjee
Bench: Arindam Mukherjee
IN THE HIGH COURT AT CALCUTTA
INTELLECTUAL PROPERTY RIGHTS DIVISION
ORIGINAL SIDE
Present :
THE HON'BLE JUSTICE ARINDAM MUKHERJEE
IP-COM/26/2024
IA NO. GA-COM/4/2025
K.A.S ZAINULABDIN & CO.
VS
GOKUL CHAND MANOJ KUMAR AND SONS (GM & SONS) PRIVATE LIMITED
AND
ANR.
For Plaintiff : Mr.Rudraman Bhattacharyya,Sr.Adv.,
Mr. Satyaki Mukherjee, Adv.,
Mr. Suryaneel Das, Adv.,
Mr. Akash Munshi, Adv.,
Mr. Aditya Mondal, Adv.,
Mr. Chiranjit Pal, Adv.
For the Defendants : Mr. Anirban Bose, Adv.
Mr. Suvadeep Sen, Adv.
Mr. Satyajit Senapati, Adv.
Mr. S. Datta, Adv.
Heard On : 18th March, 2026
Judgment on : 18th March, 2026.
Arindam Mukherjee, J:
The Court: This is an application for extension of time to file the written
statement by the defendants in a suit filed under the Commercial Courts Act,
2015 (hereinafter referred to as the said Act). Before adverting to the rival
contention the admitted facts are stated hereinbelow for convenience.
1) The writ of summons was received by the defendants on 30 th May,
2025.
2) In terms of the provisions of the said Act read with the amendments
in the Code of Civil Procedure, 1908 (in short CPC) made applicable
to commercial suits, the written statement is required to be filed
within 30 days from the date of receipt of the writ of summons or
within such time the Court permits but not beyond 120 days.
3) The written statement was not filed within 30 days. The written
statement is affirmed on 18th September 2025 (wrongly mentioned as
17th September, 2025 in paragraph 8 of the application).
4) The Master's Summons seeking condonation of delay and acceptance
of the written statement has been taken out by the defendants on
23rd September, 2025. The Master's Summons was made returnable
before the Court on 28th October, 2025 as the annual vacation
intervened in between.
5) On a calculation of the time period from the date of receipt of the writ
of summons it appears that the Master's Summons has been taken
out on the 117th/118th day from the date of receipt of the writ of
summons and, as such, it is within the 120 days available as the
maximum period under the amended provisions of Order VIII of CPC
made applicable to commercial suits.
6) The instant application has been filed on 27 th October, 2025 that is
prior to the returnable date mentioned in the Master's Summons.
The defendants say that they have approached the Court for condoning
the delay and acceptance of written statement prior to expiry of 120 days. The
business of the Court did not permit the application to be taken up within 120
days from the date of receipt of the writ of summons. The Court reopened on
24th October, 2025 and the application has been filed on 27 th October, 2025
without any delay as the Master's Summons was returnable on 28 th October,
2025. The defendants, therefore, submit that the written statement having been
affirmed within 120 days and the Master's Summons which is considered to be
the application has been taken out within 120 days. The written statement
already affirmed should be permitted to be filed on such terms as the Court
may deem fit and proper.
On behalf of the plaintiff, it is submitted that the cut off date and/or the
maximum time period available for filing of written statement is 120 days from
the date of receipt of the writ of summon. In the instant case, the written
statement has not been presented before the department for being taken on
record prior to expiry of 120 days. The Court, therefore, has become functus
officio and cannot extend the time to file the written statement. The plaintiff has
relied upon the judgment reported in 2019(12) SCC 210 (SCG Contracts
India (P) Limited V. K.S. Chamankar Infrastructure (P) Limited and a
Division Bench judgment of this Court delivered on 17 th February, 2025 in
APO/106/2023 (Rajendra Kumar Kothari And Anr. V. Varun Kothari And
Anr.) arising out of CS/161/2022 (CS-COM/403/2024).
By relying upon the Division Bench in Rajendra Kumar Kothari (supra),
the plaintiff says that affirmation of the written statement is immaterial. It has
to be filed within 120 days. No extension of time can be given beyond 120 days
irrespective of the fact that the defendants have approached the Court prior to
expiry of 120 days for extension of time to permit the written statement to be
taken on record.
The plaintiff also says that the defendants never approached the Court
prior to 23rd September, 2025 though the application clearly indicates that the
defendants had taken assistance of advocates for preparing the written
statement and as such the defendants were aware or ought to have been aware
about the cap of 120 days. The plaintiff further says that there is no
explanation or reasons shown for the delay in the application for condoning the
delay and allowing the written statement to be taken on record.
After hearing the parties and considering the materials on record, I find
that the facts in Rajendra Kumar Kothari (supra) are different from that in the
instant case. In Rajendra Kumar Kothari (supra) the Master's Summons was
admittedly taken out beyond 120 days although the written statement had
been affirmed prior to 120 days. In the instant case the Master's Summons has
been taken out prior to expiry of the 120th day. The litigant, however, has no
control once the Master's Summons is taken out as the same is considered to
be the application under the Original Side Rules of this Court and its
returnable date is fixed by the Learned Master. It is then for the Court to take
up the application as the business of the Court so permits. The Master's
Summons was made returnable on 28th October, 2025. The application has
been filed on 27th October, 2025 by giving the date for which the same is to be
listed as 28th October, 2025.
The conduct of the defendants in taking out of the Master's Summons
and filing of the application cannot therefore be faulted in the instant case. The
situation also changes when the written statement is affirmed prior to expiry of
120 days and an application is also made within 120 days. In such a situation
I am unable to agree with the contention of the plaintiff that the Court is
functus officio as it is well settled provisions of law that a litigant cannot be
made to suffer due to any delay/laches on the part of the Court. It is correct
that the defendants could have asked for short service of the Master's
Summons or could have moved the application on or before 26 th September,
2025, being the last date for holding the Court prior to annual vacation for that
year. The defendants could also have obtained the leave to move the Vacation
Bench. Having not done so, the defendants may have contributed in further
delay but for such reason a stringent view to deny the defendants a right to file
the written statement to contest the suit cannot be taken in the opinion of this
Court.
The whole object of the 2015 Act is to have a commercial suit heard and
disposed of at the earliest. The timeframe has, therefore, been provided by the
legislature by making provisions in the 2015 Act as also by amending the
applicable provisions of CPC. It is, therefore, more fundamental to see the
reasons or grounds shown by the defendants for the delay in filing the written
statement without going into the technicalities of 120 days when the
application has been made within 120 days and the written statement has also
been affirmed within 120 days. The Supreme Court in the judgments reported
in 2024 SCC OnLine SC 489 (Union of India & Another Vs. Jahangir
Byramji Jeejeebhoy (D) Through his Lr.), 2025 SCC OnLine SC 1969
(Shivamma (Dead) by Lrs. Vs. Karnataka Housing Board and Others) and
2025 SCC OnLine SC 2816 (Shankargir Vs. State of M. P. & Another) has
clarified as to what facts are to be stated in an application for condoning the
delay to show sufficient cause. If the delay remains unexplained or not
satisfactorily explained, the Court will not entertain an application for
condoning the delay.
On a perusal of the affidavit in support of the Master's Summons and in
particular paragraphs 4, 6, 7 and 8 thereof I find that the grounds shown for
the delay not only lacks in material particulars but also are vague. No sufficient
cause is shown for the delay. The application for condoning the delay in filing
the written statement, therefore, is dismissed as the grounds shown in the
application are not only unmeritorious but also vague and shorn of necessary
details.
The application being, GA-COM 4 of 2025 is accordingly dismissed.
The suit is directed to go out of the list with liberty to the parties to take
necessary steps.
(ARINDAM MUKHERJEE, J.)
Sb/pa
