Maximum time period within which written statement must be filed is 120 days from date of service of summons - No explanation provided for condoning inaction and delay - Defendant not entitled for extension of time
Before:- Moushumi Bhattacharya, J.
GA 2550 of 2019, CS 188 of 2017. D/d. 06.01.2020.
N. S. Engineering Projects Pvt. Ltd. - Plaintiff
Versus
State Bank of India and Ors. - Defendants
For the Plaintiff:- Mr. Jishnu Saha, Senior Advocate, Mr. Arindam Banerjee, Mr. Sandip Agarwal, Mrs. Ankita Upadhyay, and Mr. Tanay Agarwal, Advocates.
For the Defendant No. 5:- Mr. Subhadip Biswas and Mr. A. Banerjee, Advocates.
For the Defendant No. 6:- Mr. Dipanjan Datta, Mr. Sayan Datta and Mr. Subhajit Chawdhury, Advocates.
For the State Bank of India:- Mr. A.K. Paul, Advocate.
IMPORTANT
Extension of time to file written statement - Maximum time is 120 days from date of service of summons - No explanation for delay - Application dismissed.
Civil Procedure Code, 1908, Order 8, Rule 1 - Commercial Courts, Commercial Division of the High Courts Act, 2016, Section 15 - For extension of time to file the written statement - Maximum time period within which written statement must be filed is 120 days from date of service of summons - No explanation provided for condoning inaction and delay - Defendant not entitled for extension of time - Application dismissed.
[Paras 8, 9 and 10]
Case Referred :
Dilip Choudhury v. Pratishruti Projects Limited GA 804 of 2019 with RVWO 11 of 2019, CS 23 of 2015
JUDGMENT
Moushumi Bhattacharya, J. - This application by the defendant no.5 is for extension of time to file the written statement within a period of four weeks.
2. From the submissions made by learned counsel appearing for the defendant no.5 as well as the plaintiff, the undisputed facts are as follows:
- Since the only issue is with regard to the relevant timelines, the merits of the suit are not being alluded to.
- (i) The suit was filed against the defendants on 16th August, 2017.
- (ii) The plaint was amended by an order dated 11th September, 2018 for incorporating certain reliefs against the other defendants in the suit including the defendant no.5.
- (iii) The writ of summons of the suit before amendment was personally served through the Second Officer of the Court on 2nd November, 2017 at 12.25 p.m. to one Rishav Chaudhury, receiving assistant for the defendant no.5.
- (iv) By an order dated 14th February, 2019, the suit was directed to appear under the heading "Commercial Division Matter". This order reflects that the defendant no. 6 prayed for extension of time to file its written statement.
- (v) The writ of summons on the defendant no.5 was once again sought to be served by personal service through the Second Officer and was served on 29th April, 2019 at 12.30 p.m. to one Ms. Savita Ray, receiving staff for and on behalf of the defendant no.5.
- The dates and times showing service of the writ of summons upon the defendant no.5 would appear from two reports of the Deputy Sheriff of Calcutta dated 1st April, 2019 and 1st May, 2019.
- (vi) The present application for extension of time to file the written statement was filed by the defendant no.5 on 21st November, 2019.
4. Learned counsel for the plaintiff places certain paragraphs from the application which raises a presumption that the defendant no.5 was all along aware that the suit involved high value amounts and also to the absence of any pleading to show that the defendant was not aware of the filing of the suit at the relevant point of time. Counsel further points to the absence of any reason for explaining the delay as well as the conduct of the defendant no.5 in attempting to rectify its laches only upon the Court deciding to proceed with the matter ex-parte as against the defendant no.5.
5. Upon considering the relevant provisions of The Commercial Courts Act and the proviso to Section 15(4) in particular, this Court is of the view that the proviso gives a discretion to the Court in case of a transferred suit to prescribe a new time period within which the written statement can be filed. The decision in Dilip Choudhury was on totally different facts. In that case, the error of the suit being heard and disposed of as a regular suit was noticed by the Division Bench in a challenge to the order of the Single Judge by which two of the defendants were allowed to file their written statements beyond the statutory time limit under Order 8 Rule 1 of the CPC. The decision was rendered in a review application filed by the plaintiff before the Single Bench from the order allowing filing of the written statement within an extended time period. In this case, even if it is accepted that the suit initially filed in August 2017 was designated as a Commercial Suit in February, 2019, the time within which the defendant no.5 would have to file its written statement would start to run from 29th April, 2019 when the writ of summons was received (for the second time) by the receiving staff for and on behalf of the defendant no.5. After amendment of the provisions of Order 8 Rule 1 of the CPC pursuant to the Commercial Courts Act, 2015, the maximum time period within which the written statement must be filed is 120 days from the date of service of summons. The 120 days, in this case, expired on 26th August, 2019. The present application was filed three months thereafter on 21st November, 2019. The conduct of the defendant no.5 in failing to file the application within the 120 days widow does not call for any discretion to be exercised in permitting the said defendant to file its written statement beyond the statutory time period. There is a stark absence of explanation for condoning the inaction and the delay. For these reasons, this Court does not find any reason for prescribing new timelines or giving a further opportunity to the defendant no.5 for filing its written statement.
6. In view of the above, GA 2550 of 2019 is dismissed without any order as to costs.
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