Calcutta High Court
Bravo Sponge Iron Private Limited vs Birat Chandra Dagara on 3 March, 2025
OC-6 & 7
ORDER SHEET
IN THE HIGH COURT AT CALCUTTA
ORIGINAL SIDE
[COMMERCIAL DIVISION]
IA NO. GA-COM/3/2024
In
CS-COM/564/2024
BRAVO SPONGE IRON PRIVATE LIMITED
VS
BIRAT CHANDRA DAGARA
&
IA NO: GA-COM/1/2024, GA-COM/3/2024
In
CS-COM/565/2024
SHAKAMBARI ISPAT AND POWER LIMITED
VS
BIRAT CHANDRA DAGARA
BEFORE:
The Hon'ble JUSTICE KRISHNA RAO
Date : 3rd March, 2025.
Appearance:
Mr. Kumarjit Banerjee, Adv.
Ms. Sanchari Chakraborty, Adv.
Ms. Akanksha Chowdhury, Adv.
…for the plaintiff
Mr. Ratnanko Banerjee, Sr. Adv.
Mr. Jayanta Sengupta, Adv.
Mr. Saurodip Banerjee, Adv.
Mr. Rahul Auddy, Adv.
Mr. Aditya Goopta, Adv.
…for the defendant
The Court:- Mr. Kumarjit Banerjee, learned Senior Advocate, is
appearing for the plaintiff.
Mr. Ratnanko Banerjee, learned Senior Advocate, is appearing for the
defendant.
2
In Re: GA-COM/3/2024
The defendant has filed the present application being GA-
COM/3/2024 praying for extension of time to file written statement. The
defendant says that the writ of summons along with plaint was served upon
the defendant on 16th May, 2024. The defendant says that defendant has
already entered appearance in the interlocutory application and contesting
the same.
Counsel for the defendant submits that after receipt of writ of
summons, the advocate-on-record of the defendant had duly brief the
counsel for drafting the written statement by holding conferences. He
submits that during the conference it transpires that for drafting written
statement certain papers, information and documents for the purpose dealing
with allegation made in the plaint are required accordingly, the advocate-on-
record of the defendant had directed that the defendant to submit the
required information and documents to prepare written statement. He
submits that many of the employees of the defendant company have either
left the employment or retired from the service and accordingly the present
employee of the defendant have taken some time to collect the document and
to provide the same to the advocate-on-record.
Learned Counsel for the defendant submits that as per the service
report of the Deputy Sheriff of Calcutta relied by the plaintiff dated 22 nd May,
2024 the writ of summons was served through the District Court, Cuttack,
Orissa on 16th May, 2024. The writ of summons was served through the
postal service by speed post on 30th March, 2024. He relied upon Order V,
Rule 9, Sub-rules (3),(4) and (21) of the Code of Civil Procedure and submits
3that no order passed by this Court for sending the writ of summons through
speed post and as such the service through the speed post upon the
defendant on 30th March, 2024 is not in accordance with law.
Defendant says that if the date of service of writ of summons is taken
as 16th May, 2024, the defendant has affirmed written statement within the
outer period of 120 days.
Learned Counsel for the defendant has relied upon the judgment in the
case of A.P. Distributer and Another vs. OK Play India Pvt. Ltd. reported
in 2022 SCC OnLine SC 1512 and submits that the Hon’ble Supreme Court
has held that the High Court was not justified in setting aside the order
passed by the learned Commercial Court directing to take written statement
on record. Learned Counsel for the defendant further relied upon unreported
judgment passed by this Court in the case of Raijada Marbles and Ors. vs.
Royalbuilt Infrastructure Private Limited and Ors. in GA-COM/4/2024
(CS-COM/429/2024) dated 4th October, 2024 wherein this Court has not
accepted the written statement on the ground that the defendant has not
filed the application within the outer period of 120 days for acceptance of the
written statement but in the present case the defendant has filed the present
application within outer period of 120 days.
Learned Counsel for the defendant has further relied upon the
judgment in the case of Paras Ram Milkhi Ram vs. Sudarshan Tea. Pvt.
Ltd. and Another reported in 2022 SCC OnLine P&H 4365 wherein the
Hon’ble High Court of Punjab and Haryana has dealt with Order V, Rule 9,
Rule 21 and held that if the defendant resides outside the territorial
jurisdiction of the Court, the service sought to be effected upon the defendant
4by way of registered post with acknowledgement due directly by the Court
where the suit was instituted cannot be deemed to be proper service and the
procedure adopted by the Trial Court was contrary to the law laid down in
Order V, Rules 9 and 21 of the C.P.C.
Per contra, learned Advocate appearing for the plaintiff, draws the
attention of this Court to the service report dated 22nd May, 2024 issued by
the Deputy Sheriff of Calcutta wherein it has been certified that the writ of
summon was duly served upon the defendant by personal service through
the District Court, Cuttack, Orissa on 16th May, 2024 and the said fact was
admitted by the defendant in paragraph 3 of the present application.
Counsel for the plaintiff submits that the writ of summon sent to the
defendant through speed post was also received by the defendant on 30 th
March, 2024. The plaintiff has relied upon the Chapter VI, Rule 12 of the
Original Side Rules of this Court and submits that in terms of the Original
Side Rules of this Court, the Registrar or Master may all such business and
exercise all such authority and jurisdiction under this Rule may be
transacted or exercised by the Judge in Chambers, except where otherwise
prescribed. Accordingly, the writ of summons upon the defendant was sent
as per the order of learned Master by both the ways and thus it cannot be
said that the writ of summons sent to the defendant through the speed post
is not good service.
Counsel for the plaintiff further submits that though the plaintiff has
raised the point that the writ of summons sent to the defendant not in
accordance with law has not been pleaded in the application.
5
Learned Counsel for the defendant submits that in terms of the service
report of the Deputy Sheriff of Calcutta it is crystal and clear that the notice
was duly served upon the defendant on 30th March, 2024 and 16th May, 2024
which was duly admitted by the defendant but the defendant failed to file the
written statement either within the prescribed period of 30 days or within the
outer period of 120 days. He submits that only affirmation of written
statement without filing in the Court or in the department, it cannot be said
that the written statement is filed by the defendant.
In the case of A.P. Distributer and Another (supra) the defendant has
filed the written statement on 34th day of the service of notice of summons
and the learned Trial Court has accepted the same but the High Court had
set aside the said order. Accordingly, the Hon’ble Supreme Court has held
that the High Court has taken the technical view in setting aside the order of
Commercial Court.
In the case of Raijada Marbles and Ors. (supra) this Court has
categorically held that the defendant has affirmed the affidavit of written
statement on 28th August, 2024 that is within period of outer limit of 120
days but the written statement was not placed on record and mere
affirmation of affidavit of written statement without filing in the Court or the
Department it cannot be said that written statement is filed within the
prescribed period of limitation.
The Deputy Registrar (Legal) by his report dated 22nd August, 2024
certified that the defendant has not filed the written statement till 22nd
August, 2024 that is even after the outer period of 120 days.
6
In paragraph 3 of the application, the defendant has admitted that he
received the writ of summons on 16th May, 2024.
In paragraph 8 of the said application, the defendant has further
admitted that filing of the written statement within 30 days as expired on 16 th
June, 2024.
In paragraph 9 of the said application, the defendant has made an
averment with the written statement has been made ready and is ready to be
affirmed.
Counsel for the defendant has stated that the written statement has
also affirmed within the outer period of 120 days if the date is taken from
16th May, 2024. If the defendant affirmed the written statement within the
outer period of 120 days at the time of filing of the present application, but
the defendant has not annexed the said written statement along with the
present application.
The High Court of Punjab and Haryana in the case of Paras Ram
Milki Ram (supra) held that if the defendant is residing outside the
territorial jurisdiction of the Court where the suit is instituted, service
effected upon the defendant by way of registered post directly by the Court
where the suit was instituted cannot be deemed to be proper service and
contrary to the law laid down in Order 5, Rule 9 and 21 of C.P.C.
This Court is having the Ordinary Original Civil Jurisdiction and
having Original Side Rules. Chapter VI, Rule 5, provides for service and
return of summons which reads as follows:-
“5. Service and return of summons.- Unless otherwise ordered,
such summons, not being an originating summons, shall be served
two clear days before the return thereof. A summons may be made
returnable in a shorter time, by leave of the Registrar or Master,
7which shall be endorsed on it. In case of summons for time only,
the summons may be served on the day previous to the return
thereof.”
Rule 12 of Chapter VI reads as follows:-
“12. Business which may be transacted by Registrar or Master.-
The Registrar or Master may transact all such business and
exercise all such authority and jurisdiction as under these rules
may be transacted or exercised by a Judge in Chambers, except
where otherwise prescribed, or in respect of the following
proceedings and matters, that is to say:-
Exceptions
(a) All contested applications except with the consent of the parties
concerned or their Advocates acting on the Original Side;
(b) All applications under rule 11, clauses 1 to 8, 11 and 15 to 17;
(c) The making of an order for the issue of a warrant of committal;
and also.
(d) Applications, matters and proceedings under Chapter XII, rr.1
and 6.
In terms of the provisions of Original Side Rules, the Registrar or
Master of this Court exercising all such authority and jurisdiction under this
Rule. Accordingly, the Master has issued writ of summons upon the
defendant through the District Judge of Cuttack, Orissa and also sent
through speed post. Thus the Judgment relied by the defendant is not
applicable in the present case.
Order VIII Rule 1 of the Code of Civil Procedure, 1908 as amended
under the Commercial Courts Act read as follows:-
“Provided that where the defendant fails to file the written
statement within the said period of thirty days, he shall be
allowed to file the written statement on such other day, as may be
specified by the Court, for reasons to be recorded in writing and on
payment of such costs as the Court deems fit, but which shall not
be later than one hundred twenty days from the date of service of
summons and on expiry of one hundred twenty days from the
date of service of summons, the defendant shall forfeit the right to
file the written statement and the Court shall not allow the written
statement to be taken on record”.
8
In the case of [SCG Contracts India (P) Ltd. v. K.S. Chamankar
Infrastructure (P) Ltd.] reported in (2019) Vol.12 SCC 210, the Hon’ble
Supreme Court has categorically held that this Court cannot accept the
written statement after the outer period of 120 days.
In the present case the writ of summons was served upon the
defendant through the process server of the District Court, Cuttack, Odisha
on 16th May, 2024 and the writ of summons through the speed post was
served upon the defendant on 30th March, 2024. Admittedly, no written
statement is filed even within the outer period of 120 days. Merely by
submitting that written statement is affirmed will not serve the purpose,
unless it is filed in Court or in department. If this Court taking into
consideration of service of writ of summons on 30th March, 2024, the outer
period of filing written statement by the defendant expires on 29th July, 2024
and if the service is not taking into consideration on 16th May, 2024 outer
period of filing written statement of 120 days expired on 15th September,
2024, but neither on or before 29th July, 2024 nor on or before 15th
September, 2024, the written statement is filed by the defendant and no
written statement is on record.
In view of the above this Court finds that the defendant failed to file the
written statement within outer period of 120 days, thus time to file written
statement cannot be extended. GA-COM/3/2024 is dismissed.
(KRISHNA RAO, J.)
S. A.
AR(CR)
