Calcutta High Court (Appellete Side)
Nilkanth Chawal Mills Private Limited vs Kilburn Engineering Limited on 1 September, 2025
Author: Soumen Sen
Bench: Soumen Sen
35
01.9.2025
Ct. No. 16
SB
FMA 1336 of 2025
CAN 1 of 2025
Nilkanth Chawal Mills Private Limited
Vs.
Kilburn Engineering Limited .
Mr. Sakya Sen, Sr. Adv.
Mr. Sunil Kr. Gupta
Mr. Samir Kr. Choudhury.... For the appellant
Ms. Suchishmita Ghosh
Mr. Anurag Basu ... for the respondent.
1. There appears to be an inexecusable delay on the part of the defendant in contesting the money suit filed by the plaintiff in the year 2013. The defendant, however, filed a written statement and had secured the entire claim of the plaintiff in terms of an order passed in a winding up proceeding in C.P. 290 of 2012 disposed of on 14.01.2013. The amount deposited by the defendant is lying to the credit of the suit. However, by reason of the introduction of the Commercial Court at 2015 there is a duty cast upon the Civil Court to transfer such proceeding to the Commercial Court which, however, was admittedly, not done and as a result whereof the said suit was continued to be treated and heard by the non commercial division. That had resulted in an ex parte decree passed in favour of the plaintiff on 19.3.2023. The defendant after being aware of the said ex parte decree approached the Court for recalling of the said decree.
2. The learned Trial Court decided the matter in favour of the plaintiff / decree holder and refused to set aside the ex- parte decree.
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3. In view of the fact that the suit should have been decided by the Commercial Court and having regard to the fact that the entire claim of the plaintiff has already been secured by the defendant with him an opportunity should be given to the defendant to contest the suit after the suit is transferred to the commercial division.
4. We direct the learned Civil Judge, Senior Division, 4 th Court Alipur, South 24 Parganas to transfer the suit to the commercial division of 24 Parganas (south) at Alipur within one week from the date of communication of this order.
5. We request the learned Commercial Court upon transfer to dispose of the suit as expeditiously as possible and in the event the defendant fails to appear on the date fixed, it would be open for the Commercial Court to proceed with the trial and dispose of the suit in absence of the respondent.
6. The order dated 10.4.2025 is set aside.
7. The proceeding will commence from the stage of cross- examination of the plaintiff's witness.
8. In the event the defendant proposes to give evidence, an affidavit of evidence shall be filed within two weeks from date.
9. The appeal and the application are disposed of.
(Soumen Sen, J.) (Apurba Sinha Ray, J)