MANIK LAL SHARMA Vs. USHA BELTRON LIMITED

JUDGEMENT

(1.) This appeal arises out of a decision granting a decree on admission under Chapter XIII-A in this suit on August 5, 2003. The first preliminary objection that was taken with regard to the validity of the decree is based on Rule 3 proviso of Chapter XIII-A of the Original Side Rules (OS Rules). Mr. Pal submits that unless the Master's Summons under Rule 4 of Chapter XIII-A is taken out within 10 days from the date of receipt of notice of appearance where a written statement has been filed, the application under Chapter XIII-A shall not be maintainable or permissible. According to him, the writ of summons was served on May 22, 2003 and the defendant-appellant had entered appearance and served notice on May 25, 2003 whereas Master's Summons was taken out on June 11, 2003 and the written statement was filed on July 28, 2003.

(2.) Mr. Pratap Chatterjee ably assisted by Mr. Banerjee points out that where a written statement is filed after the Master's Summons is taken out the filing of the written statement cannot have the effect of making the application which was otherwise valid on the date of filing, infructuous. The principal rule does not provide for any time limit. The proviso qualifying the period of 10 days as time limit, which is not provided in the principal rule for a deadline of 10 days from the date of appearance as sacrosanct. Issues of determination :

(3.) In this case, we are called upon to decide two broad issues. First, whether the subsequent filing of written statement would invalidate an application under Chapter XIII-A of the Original Side Rules if the summons thereof was taken out 10(ten) days after receipt of the notice of appearance of the defendant? Second : whether leave to defend could be denied on the face of the defence raised by the defendant. 3.1. We would like to answer the first question first and then to proceed to decide the second issue if the first question is decided against the appellant. The First Issue: