Calcutta High Court
T. E. Thomson And Co Limited vs Ams Living Private Limited on 7 September, 2021
Author: Moushumi Bhattacharya
Bench: Moushumi Bhattacharya
ODC-5
ORDER SHEET
IA NO:GA/2/2021
In
CS/119/2021
IN THE HIGH COURT AT CALCUTTA
Ordinary Original Civil Jurisdiction
ORIGINAL SIDE
T. E. THOMSON AND CO LIMITED
VS
AMS LIVING PRIVATE LIMITED
BEFORE:
The Hon'ble JUSTICE MOUSHUMI BHATTACHARYA
Date : 7th September, 2021.
[Via video conference]
Appearance:
Mr. Chayan Gupta, Adv.
Mr. Dwip Raj Basu, Adv.
Mr. Rittick Chowdhury, Adv.
Mr. Pranit Bag, Adv.
Mr. Sukanta Ghosh, Adv.
Mr. A. Bakshi, Adv.
The Court: Leave to file the supplementary affidavit is granted.
The supplementary affidavit is taken on record.
This is an application for final judgment and decree presumably
under Order XIII-A of The Code of Civil Procedure, as amended by the
Commercial Courts Act. The plaintiff, as would be evident from the
submissions made by learned counsel, seeks final judgment primarily on the
basis of an order passed by this Court on 13th August, 2021. By the said
2
order, the defendant/respondent was directed to pay the occupational
charges at the rate of Rs.1,88,680/- in respect of the licensed portion of the premises till disposal of the suit. The petitioner was further directed to give a calculation of the charges due from the respondent as well as other charges which were paid by the petitioner towards electricity and other surcharges.
Counsel submits that the respondent has not complied with the directions in the order and there is now an admitted default on the part of the respondent from April, 2021 to September, 2021 in respect of occupational changes. Counsel relies on Order XIII-A of the CPC for a conditional order for leave to defend.
Learned counsel appearing for the respondent seeks to rely on relevant clauses of the license agreement which imposes certain obligations on the petitioner for electricity and water supply and also the fact that the petitioner, on its part, has also not complied with the direction passed by this Court on 13th August, 2021. Counsel seeks to file affidavit to oppose the prayers in the application.
Upon hearing learned counsel, it is evident that the respondent has failed to comply with the directions passed upon it in the order dated 13th August, 2021. By the said order, the respondent was to pay occupational charges at the rate of Rs.1,88,680/- in respect of the licensed portion of the premises till disposal of the suit. The contention now raised on behalf of the respondent that the petitioner has not honoured the direction passed upon it in the same order, cannot deflect from the failure on the part of the 3 respondent since the direction on the respondent was not made conditional upon the petitioner ensuring that water, electricity and sewerage services were given to the respondent.
Order XIII-A - "Summary Judgment" empowers a Court to pass a conditional order under Rule 7 thereof where it appears to the Court that it is possible that a claim or defence may succeed but it is also improbable that it will do so. Rule 7 refers to Rule 6(1)(b) which entitles a Court, upon exercise of its discretion, to pass a conditional order in accordance with Rule
7. Rule 7(2)(a)(i) empowers the Court to make a conditional order requiring a party to deposit a sum of money to the Court. The sequence of the provisions as stated herein makes it evident that a Court, upon fit circumstances and where it deems necessary, may pass a conditional order directing upon a party provided the requirements of Order XIII-A and Rules 6 and 7 thereunder are satisfied.
The facts of the present case leave no doubt that the respondent is entitled to file an affidavit since the prayer is for final judgment. However, the admitted violation on the part of the respondent of the order dated 13th August, 2021 is a fit case where the respondent can be permitted to defend the claim but only on terms. The respondent is, hence, granted leave to file its affidavit within a fortnight from date subject to the condition of the respondent depositing the amount which the defendant was directed to do by the order dated 13th August, 2021 in respect of the occupational charges for the licensed part of the premises in question. The petitioner on its part 4 shall ensure uninterrupted electricity, water and sewerage services to the respondent as was directed by the order dated 13th August, 2021 till further orders passed by this Court.
The petitioner shall also be at liberty to file its reply within a week from the date it receives the affidavit-in-opposition.
List this matter after three weeks.
At the time of dictating this order, learned counsel appearing for the respondent takes a point of maintainability which shall be heard on the next occasion.
It may also be recorded that the word "distracted" should be read as "disrupted" wherever the former has appeared in the order dated 13th August, 2021.
(MOUSHUMI BHATTACHARYA, J.) kc