SAYAN SARKER Vs. AUSTIN DISTRIBUTION PRIVATE LIMITED

JUDGEMENT

(1.) This application has been filed under Article 227 of the Constitution of India, challenging the order dated February 18, 2020 passed by the learned Judge, Commercial Court at Alipore , in Money Suit No. 39 of 2019. The petitioner is the defendant in Money Suit No. 39 of 2019. By the order impugned, the learned Court did not accept the written statement filed by the defendant. The learned Court fixed the suit for hearing as an undefended suit.

(2.) The case of the petitioner/defendant is that the opposite party filed a money suit in the Court of the learned Civil Judge (Senior Division), 4th Court at Alipore on April 17, 2018. It was registered as Money Suit No. 166 of 2018. The defendant received the summons on May 16, 2018. July 13, 2018, was fixed for appearance of the defendant. On July 13, 2018, the defendant prayed for time to file the written statement. The learned Civil Judge (Senior Division) at Alipore, by order No.2 dated July 13, 2018, allowed such prayer of the defendant and fixed October 4, 2018 for filing the written statement. On October 4, 2018, the defendant filed the written statement, which was recorded by the learned Civil Judge in the order sheet. The learned Court fixed December 20, 2018 for acceptance of the written statement and thereafter March 19, 2019 and April 17, 2019 were fixed for acceptance of the written statement. The matter could not be taken up on the dates fixed due to resolutions of the local bar. On April 17, 2019 also, the matter could not be taken up due to a resolution of the local bar and September 20, 2019 was fixed for acceptance of the written statement. On September 20, 2019, the learned Civil Judge (Senior Division), 4th Court at Alipore, while considering the application for acceptance of the written statement came to the conclusion that the suit was in the nature of a commercial suit. Accordingly, the records were directed to be transmitted to the Commercial Court for trial and disposal. The said suit was then registered as Money Suit No. 39 of 2019 and the same appeared before the learned Judge, Commercial Court at Alipore. February 18, 2020 was fixed for passing orders with regard to the acceptance of the written statement. The learned Commercial Judge upon considering the amended provisions of the Code of Civil Procedure came to the conclusion that the written statement ought to have been filed within 120 days from the date of receipt of summons. As the same was filed after 141 days from the date of receipt of summons, the written statement could not be accepted beyond a period of 120 days as per the mandatory provisions of the Code of Civil Procedure. According to the learned Judge Commercial Court, the present suit involved a dispute covered by the definition of a 'commercial dispute' under Section 2(1)(c) of the Commercial Courts Act, 2015 (hereinafter referred to as the said Act). Upon consideration of the decision of the Hon'ble Apex Court in the matter of SCG Contracts India Pvt. Ltd. v. K.S. Chamankar Infrastructure Pvt. Ltd. and ors. , 2019 AIR(SC) 2691, the said court came to the conclusion that the Commercial Courts Act, 2015 came into effect on and from October 23, 2015 and the Commercial Court started functioning at Alipore on and from July 5, 2019 and as such the defendant was under an obligation to follow the time prescribed for filing the written statement under the amended provisions of Order V Rule 1 (proviso), Order VIII Rule 1 and Order VIII Rule 10 of the Code of Civil Procedure as applicable to commercial suits. The learned Court below placed reliance on another decision of the Calcutta High Court in the matter of RDB Textile v. Union of India and ors. passed in connection with CS 214 of 2016.

(3.) It was urged by the learned Advocate for the petitioner, that the suit was filed as a money suit under the provisions of the Code of Civil Procedure. The Commercial Court at Alipore started functioning on and from July 5, 2019. Prior to July 5, 2019, there was no Commercial Court in Alipore and the Civil Judge (Senior Division) was the court having jurisdiction to hear the suit. Accordingly, the defendant could not be denied his right to file the written statement and contest the suit as there was no laches, negligence or delay on the part of the defendant in filing the written statement. He submitted that the records would reveal that the learned Civil Judge had fixed several dates for acceptance of the written statement but the matter could not be taken up due to resolutions of the local bar. He urged that a litigant could not suffer for the fault of the Court. He urged that if the proceedings before the learned Civil Judge, Senior Division had taken place on the dates fixed, the written statement would have been accepted much before the Commercial Court had started functioning in Alipore. That the written statement was filed on the first date fixed by the learned Court. Resolutions of the local bar prevented the learned Court from passing orders with regard to acceptance of the same. He next urged that until the Commercial Court at Alipore was inaugurated on July 5, 2019, the suit was proceeding as a regular money suit and the amended provisions of the Code of Civil Procedure relating to commercial suits would not have any application, even if, the said Act had been notified. If it was to be accepted that the suit filed by the opposite party was a commercial suit and the amended provisions of the Code of Civil Procedure with regard to filing of the written statement i.e. within 120 days and not thereafter, was mandatory, then on the same analogy, the plaint ought to have been filed as per the rules and the format as prescribed in the schedule to the said Act and the Rules regarding truth affidavit and other formalities applicable to verification and affidavits in case of commercial suits. That not having been done by the plaintiff, the said suit could not be entertained at all as the plaint was defective. He submitted that the amended provisions of the CPC would not be applicable with regard to the mandate of filing the written statement within 120 days from the date of receipt of summons and the provisions in case of regular suits would be applicable. Filing of the written statement within 120 days and as per the amended provisions of the Code of Civil Procedure in such a suit was a directory provision and not a mandatory one.