MANTU PRAMANICK Vs. INDRANI BHATTACHARJEE

JUDGEMENT

(1.) Money Suit No. 19 of 2009 instituted by the opposite party (hereafter the plaintiff) against the petitioner (hereafter the defendant) under provisions contained in Order 37, Civil Procedure Code, is pending on the file of the learned Civil Judge (Senior Division), 2nd Court, Howrah. She has sought for recovery of a sum of Rs. 5.74 lakh plus interest. The defendant entered appearance in the suit on October 26, 2009. According to him, the learned advocate conducting the case on his behalf in the trial Court advised him to pray for time to file written statement by way of defence, overlooking the provisions contained in Rule 3 of Order 37 of the Code.

(2.) On his prayer, December 2, 2009 was fixed as the date for filing written statement. The defendant prayed for further time, which was granted and on February 2, 2010 he filed his defence by way of a written statement. The plaintiff objected to acceptance of the same, whereafter the defendant on June 19, 2010 filed an application under Rule 3(7) of Order 37 of the Code read with Section 151 thereof praying for condonation of delay alleging wrong and/or mistaken advice of the learned advocate as the reason for the delay.

(3.) The learned Judge of the Trial Court by his order dated May 28, 2011 rejected the application of the defendant dated June 19, 2010 on contest. Consequently, the defence of the defendant was struck off. The learned Judge was of the view that in terms of the provisions contained in Order 37, the defendant is under an obligation to file his defence within the statutory period of 10 days and, therefore, the bar contained in Rule 3(5) of Order 37 of the Code was attracted.