Calcutta High Court
U.A.S.L Singapore Pte. Limited vs Hind Shipping Agencies & Anr on 18 June, 2008
Author: Sanjib Banerjee
Bench: Sanjib Banerjee
IN THE HIGH COURT AT CALCUTTA
ORIGINAL SIDE
GA 2587 of 2007
CS No. 288 of 2005
U.A.S.L SINGAPORE PTE. LIMITED
Versus
HIND SHIPPING AGENCIES & ANR.
WITH
GA No. 2433 of 2007
EOS 18 of 1991
KABARI PRIVATE LIMITED
VERSUS
SMT. ILA BASU & ORS.
BEFORE:
The Hon'ble JUSTICE SANJIB BANERJEE
Date : 18th June, 2008.
Mr. S.S.Bose, Advocate appears.
The Court :- This is an application for dismissal of the suit on the ground that the suit could not have been entertained in view of Section 599 of the Companies Act, 1956.
The defendant no. 1 says that the plaintiff is in breach of the provisions of Section 591 of the Companies Act, 1956 and it has not filed its papers with the appropriate authority and, as such, cannot maintain any suit in India on any account. 2 Despite directions having been given for filing affidavits, no affidavit has been filed by the plaintiff. The plaintiff is not represented even at the second call.
For a suit to be dismissed ahead of trial or for a plaint to be rejected altogether only the averments in the plaint have to be taken into account. It would not be evident from the plaint as to whether the provisions of Section 591 to Section 602 of the Companies Act would apply to the plaintiff or as to whether the plaintiff had filed the requisite documents or it obtained any exemption therefor.
If the ground that is urged in an application in the nature of demurrer calls for any evidence, such an application can no longer proceed and the matter has to be decided at the trial. If the plaintiff here had filed an affidavit where the plaintiff had merely asserted that the provisions of Section 591 to Section 602 of the Companies Act would not apply to it or that the plaintiff had filed the documents with the appropriate authority, the Court could not have proceeded with this application. Since this is a matter of principle, the fact that the plaintiff has not used any affidavit, would not elevate the defendants' case or the point that the first defendant now urges.
The point now canvassed by the defendant No. 1 has to be taken at the trial. GA 2587 of 2007 is disposed of by giving liberty to the defendants to be urge all points taken in the 3 present application at the trial of the suit whether or not such points have been or are taken in the written statement.
In view of pendency of this application, no written statement had been filed. It will be open to the defendants to file their written statements within a period of four weeks from date.
The plaintiff's application, GA 2433 of 2007, is dismissed for default as none appears even at the second call. There will be no order as to costs in either application.
Urgent certified photostat copy of this order, if applied for, be supplied to the parties subject to compliance with all requisite formalities.
(SANJIB BANERJEE, J.) skc