1. Writ of summons was received by the defendant no.1 on 23rd September, 2016 at 12.10 pm, service was effected on defendant no.2 on 18th October, 2016 at 12 Noon and service was effected on defendant no.3 on 19th September, 2016 at 3.40 pm. Report of the Sheriff also discloses that defendant nos. 1 to 3 were served though postal service. Mr. Mukherjee appearing for the plaintiff submits, according to the High Court Original Side Rules, time to file written statement is 21 days and that time expired long ago and no steps were taken by the defendants to file written statement even after receipt of writ of summons. On 20th December, 2017 this matter was listed and an oral prayer was made seeking leave to file written statement beyond the period of limitation. However, that was not allowed and no application has also been filed by the defendants thereafter. Today when the matter is taken up Mr. Sinha Roy appearing for the defendants submits that he may be granted leave to file an application for extension of time to file written statement. It is submitted at the Bar that the defendants have left Calcutta and for that reasons they could not come up with the written statement in time. However, this statement cannot be considered at this stage, nothing being put on record to that effect. The present suit is categorized as a Commercial Suit. According to the provisions of Section 16 (1) of the Commercial Courts, Commercial Division and Commercial Appellate Division of High Courts Act, 2015 (hereinafter the said Act) the defendants are required to file written statement within the time limit fixed under the said provision. The said provision says that so far the time limit fixed under the Code of Civil Procedure as amended and incorporated in the schedule of the said Act is to be valid for the Commercial disputes. Serial No. 4 of the said schedule says that if the defendant fails to file written statement within a period of 30 days he shall be allowed to file written statement on such other date as may be prescribed by the Court for reasons to be recorded in writing and on payment of such cost as the Court may deem fit and proper. But in no event it shall be later than 120 days from the date of service of summons and on expiry of 120 days from the date of service of summons, the defendant shall forfeit his right to file written statement and the Court shall not allow the written statement to be taken on record. In view of the such amended provision, Court has no discretion to extend the time to file written statement. Mr. Mukherjee appearing for the plaintiff has relied on a decision in the case of New India Assurance Company Limited v. Hilli Multipurpose Cold Storage Private Limited reported in (2015) 16 Supreme Court Cases page 20. In the said decision the Hon'ble Apex Court has categorically stated that the time limit fixed by the Statute in no circumstances can be extended by the Court. Paragraphs 23 to 27 of the said decision are relevant in the present case.
"23. Upon hearing the counsel concerned and upon perusal of both the judgments referred to here-in-above, which pertain to extension of time for the purpose of filing written statement, we are of the opinion that the view expressed by the three-Judge Bench of this Court in J.J. Merchant should prevail.
24. In J.J. Merchant which is on the same subject, this Court observed as under:
13. The National Commission or the State Commission is empowered to follow the said procedure. From the aforesaid section it is apparent that on receipt of the complaint, the opposite party is required to be given notice directing him to give his version of the case within a period of 30 days or such extended period exceeding 15 days as may be granted by the District Forum or the Commission. For having speedy trial, this legislative mandate of giving more than 45 days in submitting the written statement or the version of the case is required to be adhered to. If this is adhered to, the legislative mandate of disposing of the cases within three or five months would be defeated.
14. For this purpose, even Parliament has amended Order 8 Rule 1 of the Code of Civil Procedure, which reads thus:
1. Written Statement . - The defendant shall, within thirty days from the date of service of summons on him, present a written statement of his defence:
Provided that where the defendant fails to file the written statement within the said period of thirty days, he shall be allowed to file the same on such other day, as may be specified by the court, for reasons to be recorded in writing, but which shall be later than ninety days form the date of service of summons.'
15. Under this Rule also, there is a legislative mandate that written statement of defence is to be filed within 30 days. However, if there is a failure to file such written statement within the stipulated time, the court can at the most extend further period of 60 days and no more. - Under the Act, the legislative intent is to give 90 days of time but only maximum 45 days for filing the version of the opposite party. Therefore, the aforesaid mandate is required to be strictly adhered to."
25. We are, therefore, of the view that the judgment delivered in J.J. Merchant holds the field and therefore, we reiterate the view that the District Forum can grant a further period of 15 days to the opposite party for filing his version or reply and beyond that.
26. There is one more reason to follow the law laid down in J.J. Merchant. J.J. Merchant was decided in 2002, whereas Kailash was decided in 2005. As per law laid down by this Court, while deciding Kailash this Court ought to have respected the view expressed in J.J. Merchant as the judgment delivered in J.J. Merchant was earlier in point of time. The afore-stated legal position cannot be ignored by us and therefore, we are of the opinion that the view expressed in J.J. Merchant should be followed.
27. Our aforesaid view has also been buttressed by the view expressed by this Court in Central Board of Dawoodi Bohra Community v. State of Maharashtra wherein a question had arisen whether the law laid down by a Bench of a larger strength is binding on a subsequent Bench of lesser or equal strength. After considering a number of judgments, the five-Judge Bench of this Court, finally opined as under: (SCC pp.682-83, para 12)
"12. Having carefully considered the submissions made by the learned Senior Counsel for the parties and having examined the law laid down by the Constitution Benches in the above-said decisions, we would like to sum up the legal position in the following terms:
(1) The law laid down by this Court in a decision delivered by a Bench of larger strength is binding on any subsequent Bench of lesser or coequal strength.
(2) A Bench of lesser quorum cannot disagree or dissent from the view of the law taken by a Bench of larger quorum. In case of doubt all that the Bench of lesser quorum can do is to invite the attention of the Chief Justice and request for the matter being placed for hearing before a Bench of larger quorum than the Bench whose decision can come up for consideration. It will be open only for a Bench of coequal strength to express an opinion doubting the correctness of the view taken by the earlier Bench of coequal strength, whereupon the matter may be placed for hearing before a Bench consisting of a quorum larger than the one which pronounced the decision laying down the law the correctness of which is doubted.
(3) The above rules are subject to two exceptions; (i) the above-said rules do not bind the discretion of the Chief Justice in whom vests the power of framing the roster and who can direct any particular matter to be placed for hearing before any particular Bench of any strength; and (ii) in spite of the rules laid down here-in-above, if the matter has already come up for hearing before a Bench of larger quorum and that Bench itself feels that the view of the law taken by a Bench of lesser quorum, which view is in doubt, needs correction or reconsideration then by way of exception (and not as a rule)
Please Login To View The Full Judgment!
and for reasons given by it, it may proceed to hear the case and examine the correctness of the previous decision in question dispensing with the need of a specific reference or the order of Chief Justice constituting the Bench and such listing. Such was the situation in Raghubir Singh and Hansoli Devi." 2. Having regard to the ratio decided by the Hon'ble Apex Court in the said decision, it is amply clear that the Court has no discretion to extend the time statutorily fixed for filing written statement and, therefore, this Court is not in a position to grant any extension for filing written statement to the defendants as they have failed to file written statement within 120 days from the date of receipt of the summons. Accordingly, this Court is in compulsion to fix the matter as an undefended suit. 3. Let the suit appear for witness action on 12th March, 2018 at 10.30 am.