M/S Reacon Engineers(India) Private Limited v. Allahabad Bank@Indian Bank And Others
IN THE HIGH COURT AT CALCUTTA
Civil Revisional Jurisdiction [ CIRCUIT BENCH AT PORT BLAIR ] ...
CO/17/2022 M/s Reacon Engineers (India) Private Limited ... Petitioner Vs.
The Allahabad Bank @ Indian Bank and others ... Respondents Mr. Siddhartha Banerjee Mr. Rajib Mallick Mr.S.C. Mishra ... for the petitioners August 18, 2022 [SR] Item No.8 The plaintiff in the impugned order dated 21st July, 2022 passed by the Civil Judge, Senior Division, Port Blair is the revisionist before this Court. The revisionist is aggrieved by the learned Court permitting the defendant to file its written statement within a certain timeframe. Learned counsel appearing for the revisionist submits that allowing the prayer for extension of time to file written statement is contrary to the provisions of The Code of Civil Procedure, 1908 as well as the Commercial Courts Act, 2015. Counsel relies on the relevant provisions of both the statutes. Upon considering the impugned order, it appears that the defendant no.1 was permitted to file its written statement by 2nd September, 2022 whereas the defendants entered appearance on 30th August, 2019; as would appear from an order passed by the learned Court on 30th August, 2019.
The suit filed by the revisionist is a commercial suit involving a commercial dispute. The plaintiff claimed relief against the defendant no.1 Bank with reference to a banking transaction between the parties. Order VIII Rule 1 of The Code of Civil Procedure, 1908, as amended by The Commercial Courts Act, 2015, makes filing of a written statement within an outer limit of 120 days mandatorily. The language of the amended Order VIII Rule 1 is "....... but which shall not be later than 120 days from the date of service of summons...... the defendant on expiry of 120 days..... 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."
Even if the suit is treated as an ordinary suit, the unamended, Order VIII Rule 1 of The Code of Civil Procedure, 1908 provides for filing of the written statement within a maximum period of 120 days. The Calcutta High Court amendment to Order VIII Rule 1 inserts two further provisos which contemplate exceptional cases where the time to file written statement may be extended beyond 90 days from the date of service of summons if the defendants proves to the satisfaction of the Court that the defendant was prevented from filing the written statement within 90 days due to unforeseen circumstances. The second proviso makes it clear that the Court should not extend the time already extended under the first proviso beyond 120 days from the service of summons unless it is proved to the satisfaction of the Court
that the defendant was prevented from filing the written statement due to circumstances beyond his control. Hence, in both the cases, the time frame remain mandatory unless the defendant discharge the onus of establishing the circumstances in the two proviso to the satisfaction of the Court.
Section 16 of The Commercial Courts Act, 2015 contemplates that the amended provisions of The Code of Civil Procedure shall apply to a suit in respect of a commercial dispute of a specified value. Significantly, the language used in Section 16 does not make the amended provisions of The Code of Civil Procedure applicable to a Commercial Court. The exclusion is in line with the object of The Commercial Court Act of expeditious resolution of commercial disputes. The framers may have envisaged situations where Commercial Courts may not have been constituted, even after the 2015 came in force as in the Andaman and Nicobar Islands. Hence, the impugned order permitting the defendant No.1 to file its written statement after 1080 days from the statutory starting point warrants inference. The order dated 21st July, 2022 is accordingly set aside. CO/17/2022 is disposed of in terms of the above. This order should be communicated to the opposite parties as expeditiously as possible.
( Moushumi Bhattacharya, J.)