Calcutta High Court
Pratishtha Commercial Private Limited vs Orissa State Cooperative Milk ... on 19 May, 2023
Author: Arindam Mukherjee
Bench: Arindam Mukherjee
OCD-4
ORDER SHEET
IA No.GA 1 of 2023
IN
CS 302 of 2022
IN THE HIGH COURT AT CALCUTTA
ORDINARY ORIGINAL CIVIL JURISDICTION
ORIGINAL SIDE
(COMMERCIAL DIVISION)
PRATISHTHA COMMERCIAL PRIVATE LIMITED
VS
ORISSA STATE COOPERATIVE MILK PRODUCER'S FEDERATION
LIMITED
BEFORE:
The Hon'ble JUSTICE ARINDAM MUKHERJEE
Date: 19th May, 2023.
Mr. Nemani Srinivas, Mr. Bishajib Ghosh, Advocates for defendant.
Mr. Pranit Bag, Mr. Anurag Modi, Advocates for the plaintiff. The Court : The defendant filed an application for rejection of the plaint being GA 1 of 2023 on 13th March, 2023. The Master's Summons whereof has been taken out on 6th March, 2023 and the affidavit in support thereof had also been affirmed on 6th March, 2023. The said application was, however, filed subsequent to the defendant receiving the Writ of Summons. The suit being one filed in the Commercial Division, the mandate to file the written statement as per the amended provisions of Order VIII of the Code of Civil Procedure, 1908 (in short CPC) read with the provision of Section 16 of the Commercial Courts Act, 2015 is 30 days from the date of receipt of the Writ of Summons. The Court has the discretion to extend the time for filing the written statement if sufficient grounds are made out 2 subject to maximum 120 days from the date of receipt of the Writ of Summons. After expiry of 120 days the defendant forfeits its right to file the written statement. This view has been subscribed in the judgment of the Hon'ble Supreme Court reported in (2019) 12 SCC 210 [SCG Contracts India (P) Ltd. V. K. S. Chamankar Infrastructure (P) Ltd.]. There has been, however, a departure from this view in the Supreme Court judgment reported in (2022) 5 SCC 112 [Prakash Corporates V. Dee Vee Projects Ltd.] depending upon the facts of the case.
In the instant case the challenge to the maintainability of the suit percolates to the root of the matter. In the suits filed under the Ordinary Original Civil Jurisdiction there is consistent view that where the jurisdiction of the Court is challenged and it goes to the root of the matter, the defendant can wait till the disposal of such application to file the written statement. There are also contrary views to that. Be that as it may, the application challenging the maintainability of the suit filed by the defendant came up for consideration on 21st March, 2023 when directions for affidavits were given. The affidavit-in-opposition was to be filed by 10th April, 2023 and reply thereto, if any, was to be filed by 26th April, 2023 and the matter was made returnable in the monthly list of May, 2023. The plaintiff did not affirm or file the affidavit-in-opposition in time as directed by order dated 21st March, 2023. No extension of time was also prayed for either prior to the expiry of the time to file the affidavit-in-opposition or even thereafter when the matter was in the list. Finding that 120 days from the date of receipt of the Writ of Summons are approaching and there may be an occasion debarring the defendant from filing the written statement, the 3 matter was mentioned and as such has been brought to the daily list from the monthly list. The defendant says that the Writ of Summons has been served on 3rd February, 2023 which is, however, disputed by the plaintiff. According to the plaintiff, the Writ of Summons was sought to be delivered on the defendant on 18th January, 2023 as will appear from the mode of service dated 6th March, 2023 issued by the office of the Sheriff of Calcutta, a copy whereof has been placed before the Court. According to the said mode of service the Writ of Summons sent by post is shown to have been delivered on 18th January, 2023 as per the track report downloaded from the official website of the postal authorities.
The plaintiff is admittedly in default in filing the affidavit-in- opposition. The affidavit-in-opposition affirmed on 15th May, 2023 is made over to Court which is taken on record by extending the time for filing of the same. The default and the laches on the part of the plaintiff should not deprive the defendant from filing the written statement. At the same time the conduct of the defendant is also to be looked into. Assuming without admitting that the date of delivery of the Writ of Summons is 18th January, 2023 as indicated in the mode of service, the 120th day expired on 18th May, 2023. The period of 120 days from 3rd February, 2023 has not yet elapsed. The defendant has verified and affirmed a written statement on 18th May, 2023 i.e. within 120th day from the date of receipt of the Writ of Summons if it is taken to be 18th January, 2023.
In view of the aforesaid, the written statement affirmed by the defendant on 18th May, 2023 is allowed to be filed in the department without prejudice to its rights and contentions. However, no copy of the 4 written statement shall be served on the plaintiff till the disposal of this application being GA 1 of 2023. The time to file affidavit-in-reply in GA 1 of 2023 is extended till 12th June, 2023.
Let this application appear in the list on 15th June, 2023. Since today is the last day before the Summer Vacation, the department shall accept the written statement affirmed on 18th May, 2023 on the basis of the endorsement on the fiat by the Assistant Registrar of this Court.
(ARINDAM MUKHERJEE, J.) pa