The Calcutta High Court held that since the Defendant failed to file his written statement (WS) after receiving the first or the second writ of summons along with the unamended copy of the Plaint, his application for condonation of delay in filing the WS cannot be condoned on the ground that the amended Plaint was served belatedly upon him.

The Court dismissed the Defendant’s application for condonation of delay. The Court emphasized that the extension of time could have been granted for filing additional written statements had the Defendant filed WS at the first instance when the first writ of summons was received by him along with unamended Plaint.

Justice Arindam Mukherjee observed, “After hearing the parties and considering the materials on record I find that the defendant no. 1 did not file its written statement pursuant to receipt of a copy of the plaint along with the first writ of summons. The defendant no. 1 did not approach the court for an extension of the time for filing the written statement. The defendant no. 1 also did not file any written statement pursuant to receive of a copy of the plaint along with the second writ of summons. No application was filed even then for an extension of time to file written statement. Thus 120 days time period has elapsed from the receipt of the first writ of summons as also from the date of the receipt of the second writ of summons”.

Advocate Debnath Ghosh appeared for the Plaintiff and Advocate Sakya Sen appeared for the Defendants.

The First Defendant had applied for condonation of delay of more than 120 days in filing its written statement. The First Defendant contended that it was not served with a copy of the amended plaint until after the 120-day period had expired, and that it was not obligated to file a written statement until it had been served with the amended plaint. Plaintiff argued that Defendant had forfeited its right to file a written statement due to the delay and that his written statement should not be accepted without condoning the delay.

The Court observed that the Defendant had forfeited its right to file a written statement. The Court noted that the Defendant had the opportunity to file a written statement after receiving either the first or second writ of summons or after receiving the amended application but failed to do so.

Furthermore, the Court observed that the Defendant also had the opportunity to approach the Court and point out the Plaintiff’s failure to serve the amended plaint.

The Court referred to the Supreme Court's decision in the case of Prakash Corporates v Dee Vee Projects Limited and noted that the extension to file beyond 120 days due to the COVID-19 pandemic was not applicable in the case.

Accordingly, the Court dismissed the Application.

Cause Title: Rajesh Kumar Sonthalia & Anr v ICICI Bank Limited & Ors.

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