Page No.# 1/12 GAHC010197652023 2025:GAU-AS:2838 THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH) Case No. : CRP(IO)/297/2023 HINDUSTHAN EARTHMOVERS A PROPRIETORSHIP CONCERN HAVING ITS LOCAL PRINCIPAL OFFICE AT ASSAM TRUNK ROAD, TOKOBARI, OPPOSITE MAHAVIR BHAWAN, DIST- KAMRUP (M), GUWAHATI-781001 AND ITS HEAD OFFICE AT P-27, PRINCEP STREET, 2ND FLOOR, P.S.-BOWBAZAR, KOLKATA-700072, REPRESENTED BY ITS SOLE PROPRIETOR DILIP BANSAL VERSUS T K ENGINEERING CONSORTIUM PVT LTD AND ANR A COMPANY HAVING ITS LOCAL PRINCIPAL OFFICE AT GAMES VILLAGE, BLOCK-A3, FLAT NO. 202, BELTOLA, P.S.-BASISTHA, GUWAHATI-781029 AND ITS REGISTERED OFFICE AT MODEL VILLAGE, P.O. AND P.S.- NAHARLAGUN, DIST-PAPUM PARE, PIN-791110, ARUNACHAL PRADESH 2:PRADIP KUMAR ROY VICE PRESIDENT OF RESPONDENT NO. 1 COMPANY CARRYING ON ITS PROFESSION INTER-ALIA FROM GAMES VILLAGE BLOCK-A3 FLAT NO. 202 BELTOLA P.S.-BASISTHA GUWAHATI-781029 AND R/O FLAT NO. 204 BELTOLA P.S.-BASISTHA PIN CODE-79111 Advocate for the Petitioner : MR G N SAHEWALLA, MS K BHATTACHARYYA,MR H K SARMA,MR M SAHEWALLA,MR N ANIX SINGH Advocate for the Respondent : MR. S K DEORI (R1, R2), MR. L RUKHI (R1, R2),MS. SOMILA (R1, R2) Page No.# 2/12 Linked Case : CRP(IO)/267/2023 HINDUSTHAN EARTHMOVERS A SOLE PROPRIETORSHIP CONCERN HAVING ITS LOCAL PRINCIPAL OFFICE AT ASSAM TRUNK ROAD TOKOBARI OPPOSITE MAHAVIR BHAWAN DISTRICT- KAMRUP(M) GUWAHATI- 781001 AND ITS HEAD OFFICE AT P-27 PRINCEP STREET 2ND FLOOR P.S.-- BOWBAZAR KOLKATA- 700072 REPRESENTED BY ITS SOLE PROPRIETOR DILIP BANSAL VERSUS T K ENGINEERING CONSORTIUM PRIVATE LIMITED AND 6 ORS A COMPANY HAVING ITS LOCAL PRINCIPAL OFFICE AT GAMES VILLAGE BLOCK-A3 FLAT NO.- 202 BELTOLA P.S.- BASISTHA GUWAHATI- 781029 AND ITS REGISTERED OFFICE AT MODEL VILLAGE P.O. AND P.S.- NAHARLAGUN DIST.- PAPUM PARE PIN- 791110 ARUNACHAL PRADESH. 2:PRADIP KUMAR ROY VICE PRESIDENT OF RESPONDENT NO. 1 COMPANY CARRYING ON ITS PROFESSION INTER-ALIA FROM GAMES VILLAGE BLOCK- A3 FLAT NO. 202 BELTOLA P.S.- BASISTHA GUWAHATI- 781029 AND RESIDENT OF FLAT NO. 204 BLOCK-A3 GAMES VILLAGE BELTOLA Page No.# 3/12 PS- BASISTHA PIN- 791110. 3:RATU TECHI MANAGING DIRECTOR OF DEFENDANT NO. 1 COMPANY CARRYING ON HIS BUSINESS INTER-ALIA FROM GAMES VILLAGE BLOCK- A3 FLAT NO. 202 BELTOLA PS- BASISTHA GUWAHATI- 781029 AND RESIDENT OF MODEL VILLAGE NAHARLAGUN P.O. AND P.S.- NAHARLAGUN DIST.- PAPUMPARE ARUNACHAL PRADESH PIN- CODE- 791110. 4:TECHI TARA DIRECTOR OF DEFENDANT NO. 1 COMPANY CARRYING ON HIS BUSINESS INTER-ALIA FROM GAMES VILLAGE BLOCK- A3 FLAT NO. 202 BELTOLA PS- BASISTHA GUWAHATI- 781029 AND RESIDENT OF MODEL VILLAGE NAHARLAGUN P.O. AND P.S.- NAHARLAGUN DIST.- PAPUMPARE ARUNACHAL PRADESH PIN- CODE- 791110. 5:TECHI JULLY DIRECTOR OF DEFENDANT NO. 1 COMPANY CARRYING ON HIS BUSINESS INTER-ALIA FROM GAMES VILLAGE BLOCK- A3 FLAT NO. 202 BELTOLA PS- BASISTHA GUWAHATI- 781029 AND RESIDENT OF MODEL VILLAGE NAHARLAGUN P.O. AND P.S.- NAHARLAGUN DIST.- PAPUMPARE ARUNACHAL PRADESH PIN- CODE- 791110. Page No.# 4/12 6:TECHI TOTU CONTROLLING PERSON OF DEFENDANT NO. 1 COMPANY CARRYING ON HIS BUSINESS INTER-ALIA FROM GAMES VILLAGE BLOCK- A3 FLAT NO. 202 BELTOLA PS- BASISTHA GUWAHATI- 781029 AND RESIDENT OF MODEL VILLAGE NAHARLAGUN P.O. AND P.S.- NAHARLAGUN DIST.- PAPUMPARE ARUNACHAL PRADESH PIN- CODE- 791110. 7:KISHORE KUMAR SENAPATAHI CHIEF FINANCIAL OFFICER OF DEFENDANT NO. 1 COMPANY CARRYING ON ITS PROFESSION FROM INTER-ALIA FROM GAMES VILLAGE BLOCK- A3 FLAT NO. 202 BELTOLA PS- BASISTHA GUWAHATI- 781029 AND RESIDENT OF MODEL VILLAGE NAHARLAGUN P.O. AND P.S.- NAHARLAGUN DIST.- PAPUMPARE ARUNACHAL PRADESH PIN- CODE- 791110. ------------ Advocate for : MR G N SAHEWALLA Advocate for : MR. S K DEORI (R1 R2) appearing for T K ENGINEERING CONSORTIUM PRIVATE LIMITED AND 6 ORS Date of Hearing : 17.03.2025 Date of Judgment : 17.03.2025 Page No.# 5/12 BEFORE HONOURABLE MR. JUSTICE DEVASHIS BARUAH JUDGMENT AND ORDER (ORAL) Heard Mr. G. N. Sahewalla, the learned Senior counsel assisted by Ms. S. Todi, the learned counsel appearing on behalf of the Petitioner and Mr. D. Mozumder, the learned Senior counsel assisted by Mr. S. K. Deori, the learned counsel appearing on behalf of the respondent Nos. 1 to 6. 2. Both the applications being CRP(IO) No.267/2023 and CRP(IO) No.297/2023 are taken up together for disposal taking into account that both arises out of the same suit. 3. It is seen from the records that the petitioner herein as plaintiff had filed a suit being Money Suit No.87/2022 before the Court of the learned Civil Judge (Senior Division) No.3, Kamrup (M) at Guwahati (for short referred to as ‘the learned Trial Court’). The said suit comes within the ambit of a commercial suit. 4. The materials on record show that the summons were issued fixing the next date for service report and written statement on 11.05.2022. The learned Trial Court noticing from the records that defendant Nos. 1 and 6 having not appeared in spite of the summons having been received vide an order dated 11.05.2022 observed that the suit shall proceed ex-parte against the defendant Page No.# 6/12 Nos. 1 and 6. However, as regards the other defendants, as the summons were not served, the plaintiff was directed to take fresh steps upon the defendant Nos. 2, 3, 4, 5 and 7. 5. It is further seen that the defendant Nos. 2 to 5 thereupon appeared on 11.08.2022 through their engaged counsel and filed a petition bearing petition No.2886 praying for directing the plaintiff to provide legible copies of the documents which were filed by the plaintiff along with the plaint. No order was passed on the said petition on 11.08.2022 on the ground that the Presiding Officer of the Court was absent. The next date was fixed on 01.11.2022. 6. On 01.11.2022, the defendant Nos. 2 to 5 again filed another Petition bearing No.3904/2022 seeking directions upon the plaintiff to provide legible copies of the documents to the defendant Nos. 2 to 5. The learned Trial Court allowed the said application thereby directed the plaintiff to serve copies of the documents to the defendants and fixed 08.12.2022 for filing of the written statement. 7. It is relevant at this stage to take note of that the learned counsels who appeared on behalf of the defendant Nos. 2 to 5 were not aware that the suit was proceeding ex-parte against the defendant Nos. 1 and 6. This aspect came to light only on 08.12.2022 as stated in the application filed on behalf of the defendant Nos. 1 and 6 under Order IX Rule 7 of the Code. This Page No.# 7/12 Court further finds it relevant to observe that the defendant No.1 is a company and the defendant Nos. 2 to 7 are Directors and employees of the defendant No.1. 8. On 20.12.2022, the defendant Nos. 2 to 4 filed their written statement. The defendant Nos. 1 and 6 also filed their written statement along with an application under Order IX Rule 7 of the Code. The petitioner herein who is the plaintiff filed objection to the said application and the learned Trial Court vide the order dated 03.06.2023 had allowed the said application and it is under such circumstances, CRP(IO) No.297/2023 was filed. Further to that, vide another order dated 03.06.2023 in the suit, the learned Trial Court accepted the written statement filed by the defendant Nos. 1 and 6. It is under such circumstances, CRP(IO) No.267/2023 was filed. 9. This Court vide an order dated 28.08.2023 issued notice and stayed the further proceedings of Commercial Suit No.24/2022. The said stay of the suit proceedings continues till date. 10. Mr. G. N. Sahewalla, the learned Senior counsel submitted that the law is well settled that for the purpose of filing the written statement in a commercial suit, the learned Trial Court cannot permit more than 120 days. In that regard, he referred to the judgment of the Supreme Court in the case of in the case of SCG Page No.# 8/12 Contracts (India) Private Limited Vs. K. S. Chamankar Infrastructure Private Limited and Others reported in (2019) 12 SCC 210. He therefore submitted that as the summons was duly served as was recorded by the learned Trial Court in its order dated the 11.05.2022, the learned Trial Court could not have vacated the ex-parte order and accepted the written statement on 03.06.2023. He therefore submitted that the impugned orders are completely contrary to the provisions of Order VIII Rule 1 of the Code as amended for suits relating to commercial disputes in terms with the Commercial Courts Act, 2015. 11. Per contra, Mr. D. Mozumder, the learned Senior counsel appearing on behalf of the respondents submitted that the defendant Nos.2 to 7 are Directors and Officers of the defendant No.1. Mr. D. Mozumder, the learned Senior counsel submitted that there was a misunderstanding and miscommunication with the counsels which resulted in non-appearance on 11.05.2022 on behalf of the defendant Nos. 1 and 6. He further submitted that the other defendants upon receipt of the summons on 11.08.2022 appeared before the learned Trial Court. He further submitted that when it came to light that the suit was proceeding ex-parte against the defendant Nos. 1 and 6 on the basis of the order dated 11.05.2022, on 08.12.2022 appropriate steps were taken by filing the application under Order IX Rule 7 showing good cause. He Page No.# 9/12 submitted that the learned Trial Court exercising its discretionary jurisdiction have found good cause in allowing the application under Order IX Rule 7 of the Code and as such, this Court may not like to interfere with the said orders impugned in the proceedings before this Court. 12. This Court had heard the learned counsels and perused the materials on records including the impugned orders. The order dated 03.06.2023 passed in Commercial Suit No.24/2022 is a fall out of the order dated 03.06.2023 in Misc. (J) Case No.1168/2022. Therefore any decision to the order dated 03.06.2023 in Misc. (J) Case No.1168/2022 would effect the order dated 03.06.2023 in Commercial Suit No.24/2022. 13. The materials on record show that the learned Trial Court vide the order dated 03.06.2023 in Misc. (J) Case No.1168/2022 had exercised its jurisdiction under Order IX Rule 7 of the Code and came to an opinion that the defendant Nos. 1 and 6 have been able to make out a good cause for their previous non-appearance and have accepted the written statement so filed by the defendant Nos. 1 and 6. However, it is pertinent to observe that the application filed by the defendant Nos. 1 and 6 are completely silent why they would not appear on 11.05.2022 in spite of receipt of the summons. This Court also finds it relevant to observe that Page No.# 10/12 the defendant No.1 is a juristic person and the defendant Nos. 2 to 7 are employees of the defendant No.1. The defendant No.2 who is the Managing Director had already filed the written statement which is being accepted. Consequently, this Court is of the opinion that the learned Trial Court was justified in accepting the written statement of the defendant Nos. 1 to 6. 14. This Court is also of the opinion that when the learned Trial Court had exercised its discretion and in its opinion the grounds assigned constitutes good cause, it would not be proper on the part of this Court under Article 227 of the Constitution to exercise its supervisory jurisdiction sans any gross perversity. Be it as it may, it is also the opinion of this Court that the provision of Order IX Rule 7 of the Code mandates that if good cause is being shown, the learned Court shall on such terms direct as to cost or otherwise vacate the ex-parte order. The learned Trial Court however though vacated the ex-parte order but did not impose any terms or any costs while passing the order dated 03.06.2023. No reasons also have been assigned in that regard. Therefore, it is the opinion of this Court that certain cost ought to have been imposed upon the defendant Nos. 1 and 6 taking into account that they have received the summons on 27.04.2022 and they ought to have appeared on 11.05.2022 which they failed to do so and no proper explanation in that regard was given. Page No.# 11/12 15. Taking into account the overall facts and circumstances, this Court is not interfering with the order dated 03.06.2023 passed in Misc. (J) Case No.1168/2022 as well as also the order dated 03.06.2023 in Commercial Suit No.24/2022. However, this Court imposes a cost of Rs.1,00,000/- upon the defendant Nos.1 and 6 who are the respondent Nos. 1 and 6 herein and the said cost of Rs.1,00,000/- is required to be deposited before the learned Trial Court on the next date so fixed by this Court hereinafter. 16. It is observed that the deposit of Rs.1,00,000/- shall be a condition precedent for the purpose of accepting the written statement of the defendant Nos. 1 and 6. 17. The stay order passed by this Court on 28.08.2023 in CRP(IO) No.267/2023 whereby the Commercial Suit No.24/2022 was stayed stands vacated. 18. Taking into account that all the parties herein are represented, they are directed to appear before the learned Trial Court on 07.04.2025. On the said date as observed and directed above, the defendant Nos. 1 and 6 shall deposit the amount of Rs.1,00,000/- imposed as cost. The petitioner herein who is the plaintiff shall be at liberty to file an application before the learned Trial Court for release of the said amount and thereupon the learned Trial Court shall pass appropriate order. Page No.# 12/12 19. With above observations and directions, the both the petition stands disposed of. 20. The Registry is directed to forthwith return the LCR to the learned Court below and in that regard employ the services of a special messenger to ensure that the records are before the learned Trial Court on the next date fixed by this Court above. JUDGE Comparing Assistant