Calcutta High Court
Mahamani Plaza Private Limited vs Jai Durga Express Logistics Llp & Ors on 21 April, 2025
Author: Arindam Mukherjee
Bench: Arindam Mukherjee
OD-1
ORDER SHEET
CS 54 of 2023
IN THE HIGH COURT AT CALCUTTA
ORDINARY ORIGINAL CIVIL JURISDICTION
ORIGINAL SIDE
MAHAMANI PLAZA PRIVATE LIMITED
VS.
JAI DURGA EXPRESS LOGISTICS LLP & ORS.
BEFORE:
The Hon'ble JUSTICE ARINDAM MUKHERJEE
Date: 21st April, 2025.
Mr. Shailendra Jain, Mrs. S. Agarwal, Advocates for the plaintiff.
The Court : The suit was instituted under the provisions of Order
XXXVII of the Code of Civil Procedure, 1908 (hereinafter referred to as
‘CPC‘). The defendants filed two applications, one being GA 2 of 2023 and
the other being GA 3 of 2023. The application being GA 2 of 2023 was filed
by the defendants for entering appearance and leave to defend. The
application being GA 3 of 2023 was an application for rejection of the plaint
inter alia under the provisions of Order VII Rule 11 of the CPC. The filing of
the applications by the defendants gives a clear indication that summons of
the suit in Form 4 of Appendix B as required under Order XXXVII Rule 2(2)
with a copy of the plaint in terms of Order XXXVII Rule 3(2) was served on
the defendants. The defendants, however, did not enter appearance as
required under Order XXXVII Rule 3(2) of CPC. Both the applications were
taken up for consideration on 11th September, 2024 and were dismissed.
The Court, however, while refusing leave to the defendants to defend the
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suit by entering appearance and dismissing the application for rejection of
plaint did not pass any decree under the provisions of Order XXXVII Rule
3(6) of CPC.
The order dated 11th September, 2024 was carried in appeal by the
defendants. The appeal was numbered as APOT 364 of 2024 with an
application for stay filed therein being GA 1 of 2024. The Hon’ble Division
Bench while disposing of the appeal intended to give an opportunity to the
defendants to defend the suit provided the defendants deposit Rs.30 lakhs
with the Registrar, Original Side within three weeks from the date of the
said order i.e. 2nd January, 2025. In default, the Division Bench held that
the suit may be heard as an ex parte suit. The defendants failed to deposit
the amount and as such made an application seeking extension of time to
deposit the said sum of Rs.30 lakhs as a condition precedent for defending
the suit. This application was numbered as GA 2 of 2025 filed in the appeal.
The said application was disposed of by the Division Bench on 5th March,
2025. The operative portion whereof is as follows :
“4.However, for the ends of justice, the time to deposit Rs.30 lakhs is
peremptorily extended by two weeks from date. In default, the suit
shall be heard ex parte.
5. In view of the fact that the settlement has failed, we give liberty to
the plaintiff to proceed with its original claim in the pending suit.
6. GA/2/2025 is disposed of.”
It is the case of the plaintiff that the defendants have not deposited
any money even in terms of the order dated 5th March, 2025.
The suit appeared before Krishna Rao, J. on 13th March, 2025 when
the defendants were represented. The defendants sought for further two
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weeks time, though the original time granted by the order dated 2nd
January, 2025 and the extended time allowed by the Division Bench vide
order dated 5th March, 2025 had expired. The matter was adjourned till 26th
March, 2025.
The suit appeared before this Bench after change in determination on
2nd April, 2025. The defendants remained unrepresented and as such, the
plaintiff was directed to serve a notice upon the defendants. The plaintiff
has served notice upon the defendants and filed an affidavit of service to
that effect which is taken on record.
It is submitted by the plaintiff that the defendants have till now not
informed the plaintiff about the deposit of Rs.30 lakhs, being a pre-
condition for leave to defend. The plaintiff, therefore, seeks a decree by
hearing the suit ex parte as directed by the Division Bench.
It is, therefore, necessary to ascertain whether the formalities under
Order XXXVII Rule 2 Sub-Rule 2 read with provisions of Order XXXVII Rule
3(2) have been complied with. The suit is directed to go out of the list for the
present with liberty to mention.
The plaintiff shall apply before the department with the copy of the
orders passed by the learned Single Judge as also by the Hon’ble Division
Bench so that the necessary formalities are completed for the suit being
heard as an ex parte suit as provided in the order dated 2nd January, 2025
of the Division Bench.
(ARINDAM MUKHERJEE, J.)
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