Calcutta High Court
Roop Shringar Sarees Private Limited vs Sudhir Kumar Satpathy on 26 June, 2025
IN THE HIGH COURT AT CALCUTTA
ORIGINAL SIDE
COMMERCIAL DIVISION
Present:
The Hon'ble Justice Krishna Rao
G.A. (COM) No. 2 of 2025
In
C.S. (COM) No. 824 of 2024
(Old No. CS. 33 of 2016)
Roop Shringar Sarees Private Limited
Versus
Sudhir Kumar Satpathy
Mr. Debdut Mukherjee
Ms. Nairanjana Ghosh
Ms. Priyanshi Bainwala
... For the plaintiff.
Mr. Mohit Gupta
Mr. A.P. Agarwalla
Mr. Jit Ray
Ms. Suparna Das
.... For the defendant.
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Hearing Concluded On : 23.06.2025
Judgment on : 26.06.2025
Krishna Rao, J.:
1. The defendant has filed the present application being GA (Com) No. 2 of
2025 praying for extension of time to file written statement.
2. Mr. Mohit Gupta, Learned Advocate appearing for the defendant
submits that after filing of the suit, the plaintiff has preferred an
application being GA No. 289 of 2016 praying for judgment upon
admission for a sum of Rs. 19 lakhs by an order dated 18th February,
2016, this Court has allowed the same. He submits that since passing
of the judgment upon admission dated 18th February, 2016, the
plaintiff has not taken any steps to proceed with the suit till November,
2024 with respect to remaining claim.
3. Mr. Gupta submits that in the third week of November, 2024, the
defendant was served with the copy of the Execution Case No. 65 of
2024, for execution of the decree dated 18th February, 2016. On receipt
of the said application, the Counsel for the defendant upon verifying the
status report of the instant suit on the Website, the defendant came to
know that the case is proceeding as “undefended suit” against the
defendant.
4. Mr. Gupta submits that by an order dated 4th December, 2024, this
Court has transferred the suit of the plaintiff from regular Division to
Commercial Division since the dispute is of commercial in nature. After
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transfer of the suit, on 6th December, 2024, the Learned Counsel for the
defendant by an email, requested the Learned Advocate for the plaintiff
for supply of supplementary affidavit filed on behalf of the plaintiff. He
submits that inspite of the request made by the defendant, the plaintiff
has not served the copy of supplementary affidavit. After transfer of the
suit to Commercial Division, the suit is renumbered as C.S. (Com) No.
824 of 2024. After transfer of the suit, the plaintiff has filed Statement
of Truth and list of documents and this Court had directed to list the
matter on 28th February, 2025 with the liberty to the defendant to file
appropriate application.
5. Mr. Gupta submits that as per liberty granted by this Court, the
defendant has filed the present application for extension of time as the
suit is transferred from the Regular Division to Commercial Division,
the defendant will get a fresh period of 120 days to file written
statement from the date of order of the transfer of the suit.
6. Mr. Gupta has relied upon an unreported judgment in the case of
Pestcon Engineering Industries Limited & Ors. vs. Jainco Projects
(India) Ltd. & Ors. passed in GA (Com) No. 6 of 2024 in CS (Com) No.
783 of 2024 dated 12th February, 2025 wherein the Coordinate
Bench of this Court has allowed the defendant to file written statement
subject to payment of cost of Rs. 25,000/- after transfer of suit from
Regular Division to Commercial Division.
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7. Mr. Gupta has further relied upon the judgment in the case of Raj
Process Equipments and Systems Pvt. Ltd. vs. Honest Derivatives
Pvt. Ltd. reported in 2022 SCC OnLine SC 1877 wherein the Hon’ble
Supreme Court relying upon the decision in the case of Salem
Advocate Bar Association vs. Union of India, allowed the defendant
to file written statement.
8. Per contra, Mr. Debdut Mukherjee representing the plaintiff submits
that the suit was filed in the year 2016 being CS No. 33 of 2016 and
writ of summons was duly served upon the defendant but inspite of
receipt of writ of summons, the defendant has not filed written
statement. In the meantime, the plaintiff has also filed an application
for judgment upon admission and accordingly the Hon’ble Court has
granted part decree for an amount of Rs. 19 lakhs as prayed for by the
plaintiff.
9. Mr. Mukherjee submits that since 2016, till the filing of the present
application i.e. on 12th February, 2025, the defendant has not taken
any steps for filing of written statement. He submits that the defendant
has not shown any cause as to why the defendant has not filed written
statement since the year 2016, though the writ of summons was duly
served upon the defendant and the defendant entered appearance
through Learned Advocate.
10. Mr. Mukherjee submits that the defendant has filed the present
application on the misconception of law that the suit is transferred
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from the Regular Division to Commercial Division and thus the
defendant will get a fresh period of 120 days to file written statement
from the date of the order of transfer.
11. Mr. Mukherjee submits that there is no such law that after the transfer
of the suit from Regular Division to Commercial Division, the defendant
will get 120 days for filing of the written statement. He submits that in
the instant application, he has not shown any reason as to why the
defendant has not filed written statement since the year 2016, though
the Court has also passed part decree of the admitted claim of the
defendant.
12. Mr. Mukherjee submits that the judgment of Salem Advocate Bar
Association, T.N. vs. Union of India reported in (2005) 6 SCC 344,
the Hon’ble three Judges Bench of the Supreme Court has held that
Order VIII, Rule 1 of the Code of Civil Procedure, 1908, is directory and
not mandatory but the present suit is before the Commercial Division
and as per the amended provisions of Order VIII Rule 1 of CPC under
the Commercial Courts Act, 2015, no written statement can be
accepted after the period of 120 days.
13. Mr. Mukherjee submits that in the case of Raj Process Equipments &
Systems Pvt. Ltd. & Ors. (supra), the Hon’ble Supreme Court finds
that the plaintiff has filed the suit in the month of December, 2017 and
the summon was served on 16th February, 2018 and subsequently, on
11th August, 2018, the case was transferred to the Commercial Division
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and as such the Hon’ble Supreme Court has taken the lenient view and
allowed the defendant to file written statement but the facts of the
present case are distinguishable as in the present case, the defendant
has received writ of summons in the year 2016 but has not filed written
statement and the defendant has also not shown any cause as to why
the defendant has not filed the written statement.
14. Heard the Learned Counsel for the respective parties, perused the
materials on record and the judgments relied by the defendant. The
plaintiff has filed the suit being CS No. 33 of 2016 and the writ of
summons was served upon the defendant on 21st March, 2016. In the
meantime, the plaintiff has filed an application being GA No. 289 of
2016 praying for judgment on admission and the Court by an order
dated 18th February, 2016, has allowed the part claim of the plaintiff
for a sum of Rs. 19 lakhs together with interest @ 6% from the date of
demand notice till realization and the remaining claim of the plaintiff is
pending for adjudication.
15. The defendant has received writ of summons on 21st March, 2016 but
has not taken any steps. In the meantime when the plaintiff has
proceeded the suit for further claim, the plaintiff came to know that the
claim of the plaintiff is of commercial in nature and accordingly the
Court by an order dated 4th December, 2024, has transferred the suit
from Regular Division to Commercial Division and directed the
department to take appropriate steps.
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16. The plaintiff has relied upon the report of the Deputy Registrar (Legal)
dated 11th November, 2024 wherein it reveals that the defendant has
entered appearance on 8th March, 2016 in the suit and further report
issued by the Deputy Registrar (Legal) dated 20th November, 2024,
reveals that no written statement has been admitted by the Learned
Master and the Official Referee till 20th November, 2024.
17. By an order dated 4th December, 2024, the suit has been transferred to
this Court. Now, the defendant has filed the present application for
extension of time to file written statement. The defendant has not
shown any cause as to why though the defendant had entered
appearance in the suit before the Regular Division but had not filed
written statement. The only reason given by the defendant in paragraph
13 of the present application which reads as follows:
“13. The defendant states and submits it has
now been settled that if a suit in the nature of a
commercial dispute has been transferred from the
Regular Division to the Commercial Division, the
defendant will get a fresh period of 120 days to file
the written statement from the date of the order of
such transfer.”
18. This Court did not find any such proposition as stated by the
defendant. Proviso of Section 15 of Commercial Courts Act, 2015, reads
as follows:
“Section 15: Provided that proviso to Sub-
Rule 1 of Rule 1 of Order V of the Code of Civil
Procedure, 1908, shall not apply to such
transferred suit or application and the Court may,
in its discretion, prescribe a new time period within
which the written statement shall be filed.”
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19. By an order dated 4th December, 2024, the Court has transferred the
suit to this Court (Commercial Division) and the said order was passed
in presence of the defendant. Immediately on 6th December, 2024, the
defendant has sent an email to the Learned Counsel for the plaintiff
requested to supply a copy of supplementary affidavit filed as per order
dated 25th November, 2024 passed by the Court. The plaintiff has not
responded to the said email. The matter was listed before the
Commercial Court on 16th January, 2025 and on the said date, the
Counsel for the plaintiff has filed Statement of Truth and list of
documents and directed to list the matter on 28th February, 2025 for
further order, this Court has also granted leave to the defendant to file
application. On 30th January, 2025, the defendant has affirmed the
present application and filed the same on 12th February, 2025.
20. Though the defendant has not shown the cause for non-filing of the
written statement since the year 2016 when the suit was pending
before the Regular Division. The suit was transferred from Regular
Division to this Court by an order dated 4th December, 2024. On 6th
December, 2025, the defendant has requested the plaintiff for supply of
supplementary affidavit but the same was not served and on 16th
January, 2025, the plaintiff has filed Statement of Truth and list of
documents in compliance of provisions of the Commercial Courts Act,
2015 but the plaintiff has not served the amended plaint, Statement of
Truth and affidavit of documents to the defendant.
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21. The defendant has already suffered part decree for a sum of Rs. 19
lakhs along with interest @ 6% per annum. Now, the remaining claim of
the plaintiff is to be decided after evidence. The part decree was allowed
when the suit was pending before the Regular Division. Now, the suit
has been transferred to Commercial Division. The defendant intending
to contest the suit by filing written statement. The suit is transferred by
an order dated 4th December, 2024 and 6th December, 2024, the
defendant had requested to plaintiff for supply of supplementary
affidavit but has not supplied. After transfer, the plaint was also
amended and the Statement of Truth and list of documents were filed
by the plaintiff, but the same has not been served upon the defendant.
22. Considering the above, this Court finds that the defendant should be
given an opportunity to file written statement subject to payment of
cost of Rs. 50,000/- to the plaintiff within one week from date. The
plaintiff is directed to serve the amended plaint, Statement of Truth and
all documents to the defendant within a period of one week and on
receipt of the same, the defendant shall file the written statement
within two weeks thereafter.
23. GA (Com) No. 2 of 2025 is disposed of.
(Krishna Rao, J.)