GA 210 of 2017 and CS 45 of 2015. Case: Saraf Home Appliances Private Limited Vs Jet Settlers Limited. High Court of Calcutta (India)
| Case Number | GA 210 of 2017 and CS 45 of 2015 |
| Counsel | For Appellant: R. Ghosh and C. Gupta, Advs. and For Respondents: S.P. Mazumder, Sr. Adv., B. Mitra and S. Mitra, Advs. |
| Judges | Arijit Banerjee, J. |
| Issue | Code of Civil Procedure, 1908 (CPC) - Order IX Rules 13, 7 |
| Judgement Date | February 16, 2017 |
| Court | High Court of Calcutta (India) |
Judgment:
Arijit Banerjee, J.
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The defendant has taken out this application for recalling of a decree dated 14 August, 2015 which was passed when the suit appeared under the heading undefended suit. The defendant contends that there was sufficient cause for the defendant not to appear on the date when the decree was passed and hence, the decree should be recalled and the defendant should be given an opportunity to contest the suit.
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The undisputed facts of the case are that the suit was filed on or about 24 February, 2015. In the suit the plaintiff claimed a money decree for Rs. 1,01,57,095.87 along with interim interest and interest on judgment. The writ of summons was served on the defendant on 5 May, 2015. The defendant was required to enter appearance by 15 May, 2015 and was required to file written statement by 26 May, 2015. The defendant did not enter appearance nor filed written statement. Accordingly, the plaintiff caused the suit to appear in the list as 'undefended suit' on 13 July, 2015. The plaintiff's witness was examined in part and the suit was adjourned till 7 August, 2015. The suit thereafter appeared in the list on 10 August, 2015 but could not be taken up for hearing. Upon the matter being mentioned on behalf of the plaintiff, the suit was directed to appear in the list on 14 August, 2015. On the adjourned dated i.e. 14 August, 2015 the examination of the plaintiff's witness was completed and upon being satisfied that the plaintiff had proved its claim, this court decreed the suit.
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The defendant contends that the key personnel of the defendant company is one Mr. Tarakeswar Singh who is also a director of the company. He was personally involved in the entire transaction with the plaintiff. All necessary facts and information germane to the suit were known to him and all documents pertaining to the transactions between the parties were in his custody. However, he suffered a major hip fracture on April 30, 2015 and was confined to bed. Hence, it was not possible for him to take any steps to defend the suit. As a result, the defendant failed to enter appearance and could not file written statement within the period prescribed.
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The defendant further contends that on 7 August, 2015 it took out a master summons for leave to enter appearance in the suit and for extension of time to file written statement. The summons was made returnable on 12 August, 2015. On 10 August, 2015 the defendant's advocate went to Bar Association, Room No. 16 to serve copy of the master summons along with application on the plaintiff's advocate on record Mrs. Sujata Mitra but could not find her. On 11 August, 2015 the defendant's Learned Advocate again went to the Bar Association and this time they could find the plaintiff's advocate on record but the latter refused to accept service. Thereafter on the same date the defendant's advocate on record sent a copy of the master summons and the affidavit in support thereof to the plaintiff's advocate on record by speed post with A/D card which was received by the plaintiff's advocate on record on 12 August, 2015. By reason of delay in service of the master summons caused by the refusal of the plaintiff's advocate on record to receive the same, the defendant was constrained to take out a fresh master summons on 12 August, 2015 which was...
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