Calcutta High Court
Mamta Jaiswal vs Apl Metals Ltd on 28 March, 2023
Author: Arindam Mukherjee
Bench: Arindam Mukherjee
OD-1
IN THE HIGH COURT AT CALCUTTA
Ordinary Original Civil Jurisdiction
ORIGINAL SIDE
(COMMERCIAL DIVISION)
IA No.GA/3/2023
In
CS/142/2022
MAMTA JAISWAL
VERSUS
APL METALS LTD.
BEFORE :
THE HON'BLE JUSTICE ARINDAM MUKHERJEE
Date : 28th March, 2023.
Appearance:
Mr.Souradeep Banerjee, Adv.
Ms. Sanjana Sinha, Adv.
...for the plaintiff.
Mr. Srijib Chakraborty, Adv.
Mr. Aditya Mondal, Adv.
...for the defendant.
The Court : This is an application by the sole defendant for extension of time to file the written statement. The writ of summons was served on the defendant on 16th September, 2022. According to the own admission of the defendant, the 30 days time period to file the written statement has expired on 15th October, 2022. The defendant says that since this date, that is, 15th October, 2022 fell within the vacation of this Court as a result whereof the same could not be filed on that date. The period of 120 days for filing the written statement according to the defendant ended on 16th January, 2023. After excluding the dates between 15th October, 2022 and the reopening of the Court after the Puja vacation on 31st October, 2022, there is a delay of 111 days in filing the written statement. The defendant also says that the overall delay in filing the written statement is 150 days and seeks condonation of such 2 period and to permit it to file the written statement affirmed on 16th February, 2023.
The reason for the delay, according to the defendant, is a search and seizure conducted by the Income Tax department at the office of the defendant on 7th December, 2021, which resulted in seizure of the books and accounts and other documents which were necessary for preparing the written statement. The defendant says that the situation, therefore, was beyond the control of the defendant and immediately after the order of 30th December, 2022 passed by the Income Tax authorities, the defendant has taken steps to prepare the written statement and the same was affirmed on 16th February, 2023. The defendant, therefore, prays that the said written statement be accepted.
The defendant in support of its contention for extending the time and to take the written statement on record has relied upon a judgment reported in (2022) 5 Supreme Court Cases 112 (Prakash Corporates -vs- Dee Vee Projects Limited). Relying upon paragraphs 18 to 24 of the said judgment, it is submitted by the defendant that the stipulation of filing the written statement within 120 days cannot be strictly applied in the facts of this case as the said restriction is operative in a normal and non-extraordinary circumstances with the usual functioning of the Courts. The defendant also says that the provision of written statement to be filed within 120 days is dependent on operation and effect of other orders passed/issued by the Courts under the force of aberrant, abnormal and extraordinary circumstances. The defendant says that the search and seizure operation conducted by the Income Tax department had led to an extraordinary circumstances and the orders passed by the Income Tax department are one of such orders which fall under the category of other orders 3 passed/issued by the Courts on which the outer limit of 120 days has no manner of strict application.
On behalf of the plaintiff, it is submitted that the 120 days period from the date of service of the writ of summons is the maximum time available to a defendant, subject to appropriate extension being granted by the Court for filing the written statement. The defendant who does not file his/her/its written statement within such period of 120 days forfeits the right to file the written statement.
To support this proposition, the plaintiff has relied upon the judgment reported in (2019) 12 Supreme Court Cases 210 (SCG Contracts (India) Private Limited -vs- K.S. Chamankar Infrastructure Private Limited and Others). After considering the rival contentions, the materials on record and the judgments cited from the Bar, I find that the submissions made by the defendant in support of extension of time to file the written statement are untenable for the reasons enumerated below.
In Prakash Corporates (supra), the Supreme Court has taken into consideration SCG Contracts (supra) and, in fact, has approved the view taken therein. It has in clear words accepted the maximum outer limit to be 120 days from the date of service of the writ of summons and the forfeiture of right. However, the Supreme Court in Prakash Corporates after taking into consideration the extraordinary circumstances of the said case had permitted the written statement in the said case to be accepted. The fact scenario of the case before the Supreme Court in Prakash Corporates is in no way similar far less identical to the case in hand for the ratio to be applied. In Prakash Corporates (supra), the 120 days period from the date of service of the writ of summons expired on 6th May, 2021. However, the Hon'ble 4 Supreme Court taking into consideration that there was an application by the defendant under Section 10 read with Section 151 of the Code of Civil Procedure, 1908 (CPC) for stay of suit and that the ailments of the partners of the defendant firm as also their lawyer and their families and that the lawyer had lost his mother due to health complication had considered the case to be one under extraordinary circumstances and extended the time to file the written statement beyond 120 days.
In the instant case, there is nothing on record to show that the Board of Directors through which the defendant company functions or its lawyers were similarly placed as in the case of Prakash Corporates (supra). There is also no application for the stay of the suit in the instant case which goes to the root of the matter as was there in the case of Prakash Corporates (supra). In the instant case, the defendant has entered appearance but did not approach the Court for any extension of time when it could not file the written statement within 30 days. If the defendant was actually handicapped with the search and seizure operation conducted by the Income Tax authorities, it was open to the defendant to approach this Court stating the inconveniences suffered by it due to the search and seizure which prevented the defendant from preparing and filing the written statement. No such attempt has been made. Even going by the admission of the defendant that the 30 days time period from the service of the writ of summons expired on 15th October, 2022, then also the Limitation Act, 1963 prescribes that the written statement had to be filed on the reopening date. The defendant had made no attempt to file the written statement on the reopening date. The 120 days from the date of service of the writ of summons had expired on 16th January, 2023, no attempt was made to seek an extension of time prior to expiry of such 120 days period. The 5 application for condoning the delay and to accept the written statement has been filed on 28th February, 2023 much after 120 days having expired, the defendant by that time had forfeited its right. The written statement which the defendant intends to be taken on record has been affirmed on 16th February, 2023 is also beyond 120 days from the date of service of the writ of summons.
There is as such no extraordinary circumstances prevailing in the instant case which warrants condonation of delay and acceptance of written statement beyond 120 days. There is also no similarity amongst the case in hand and that before the Hon'ble Supreme Court in Prakash Corporates (supra).
Considering all these aspects, the application being GA/3/2023 is dismissed with costs assessed at Rs.5000/- payable to the High Court Legal Services Committee by 17th April, 2023. The payment of costs is a pre- condition to allow the defendant from contesting the suit which the defendant is otherwise entitled to even if no written statement is filed. The cost is awarded keeping in mind that the suit is one filed in the Commercial Division of this Court. The legislative intent is for speedy disposal of such suit. The hearing of the suit which is to be heard as an undefended suit owing to failure of the defendant to file the written statement has been delayed by the unmeritorious application from the defendant.
Since I have not called for any affidavits, the allegations contained in the application are deemed not to have been admitted by the plaintiff.
(ARINDAM MUKHERJEE, J.) S.Pal