Calcutta High Court
Misrilall Mines Pvt. Ltd vs Coronation Infrastructure Pvt. Ltd on 7 January, 2025
OCD-25
ORDER SHEET
IN THE HIGH COURT AT CALCUTTA
COMMERCIAL DIVISION
ORIGINAL SIDE
CS-COM/482/2024
[Old No. CS/53/2023]
IA No.GA-COM/3/2024
MISRILALL MINES PVT. LTD.
-VS-
CORONATION INFRASTRUCTURE PVT. LTD.
BEFORE:
The Hon'ble JUSTICE KRISHNA RAO
Date : January 7, 2025.
Appearance:
Mr. Deepnath Roy Chowdhury, Adv.
Mr. Sarbajit Mukherjee, Adv.
Ms. Shyantee Datta, Adv.
… for the plaintiff
Mr. Vivek Basu, Adv.
Ms. Ipsita Ghosh, Adv.
… for the defendant
The Court: Mr. Deepnath Roy Chowdhury, learned Advocate, is
appearing for the plaintiff.
Mr. Vivek Basu, learned Advocate, is appearing for the defendant.
The defendant has filed the present application being GA-
COM/3/2024 praying for extension of time to file written statement.
Counsel for the defendant submits that the writ of summons was
served upon the defendant on 23rd August, 2024 but the defendant could
not file the written statement within the specified period of 30 days but has
filed the written statement with the leave of this Court subject to
acceptance of the written statement in the department on 20th December,
2024 i.e. on the 119th day after receipt of the writ of summons.
Counsel for the defendant submits that the advocate on record
could not get proper instruction within the specified period due to which
2the defendant could not prepare the written statement and as such, there is
a delay in filing the written statement but has filed the written statement on
the 119th day.
Per contra, learned counsel for the plaintiff raised objection and
submitted that the application filed by the defendant is required to be
dismissed as the defendant has not shown any cause as to why the
defendant has not filed the written statement within the specified period of
30 days.
Counsel for the plaintiff submits that in paragraph 3 of the
present application it is mentioned that the advocate on record has not
received proper instruction, so it is clear that the defendant was negligent
for not providing the instruction to the advocate on record. The defendant
has not shown any cause why the defendant has not provided the proper
instruction to the advocate on record to prepare the written statement,
thus, the application filed by the defendant is required to be rejected.
Counsel for the plaintiff submits that the defendant has filed
written statement on 119th day and not on 120th day and as such, the
application filed by the defendant is liable to be dismissed.
Learned counsel for the plaintiff further submits that no plausible
reason and no document is filed to substantiate the delay caused in filing
the written statement.
Heard learned counsel for the respective parties. Perused the
materials on record.
Admittedly, the writ of summons was served upon the defendant
on 23rd August, 2024. There are 9 days in the month of August, 2024, 30
3
days in the month of September, 2024, 31 days in the month of October,
2024, and 30 days in the month of November, 2024 and the defendant has
filed the written statement on 20th December, 2024. Thus, if the days are
calculated it will be 120th day as on 20th December, 2024.
This Court has considered 9 days in the month of August, 2024
because of the order passed by this Court dated 19th August, 2024 wherein
this Court has made it clear that filing of the written statement by the
defendant will be started from the date when the plaintiff will serve the copy
of the plaint and accordingly, the plaintiff has served the copy of the plaint
along with documents to the defendant on 23rd August, 2024.
In the application, the defendant has stated that the defendant
could not properly instruct the advocate on record due to which the
advocate on record could not prepare the written statement. This Court also
finds that though the defendant has not filed written statement within the
specified period of 30 days but has filed the written statement with the
leave of this Court on 120th day i.e. on 20th December, 2024.
Order VIII Rule 1 of the amended Code of Civil Procedure reads 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.”
4
The proviso to Order VIII Rule 1 of the CPC provides that the
defendant shall be allowed to file on such other day as may be specified by
the Court for the reasons to be recorded in writing and on payment of such
costs as the Court may deem fit but not later than 120 days.
In the present case, the defendant has filed the written statement
on 120th day and reason has been shown by the defendant that the
advocate on record could not get instruction from the plaintiff. Thus, this
Court finds that the defendant has filed the written statement on 120th day.
Thus, one opportunity should be given to the defendant to file the written
statement.
Accordingly, the written statement filed by the defendant is
accepted subject to payment of cost of Rs.10,000/- to the State Legal
Services Authority within a week from date.
The Department is directed to accept the written statement
subject to scrutiny by the department.
GA-COM/3/2024 is disposed of.
As the defendant has filed written statement, the parties are
directed to complete the discovery and inspection of documents within
three weeks from date. Affidavit of admission and denial of documents be
filed within two weeks thereafter. In the meantime, the parties are also
directed to exchange their suggested issues.
List the matter on 18th February, 2025 for framing of issues.
(KRISHNA RAO, J.)
RS
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