IN THE HIGH COURT AT CALCUTTA CIVIL REVISIONAL JURISDICTION APPELLATE SIDE Before:

The Hon’ble Justice Hiranmay Bhattacharyya C.O. 1953 of 2025 Janardan Nirman Pvt. Limited Vs.

Gannon Dunkerley and Co. Ltd.

For the Petitioner : Mr. Sukanta Chakrabarty Mr. Koushik Bhattacharyya Mr. Biswajit Ghosh ….. advocates For the Opposite Party : Mr. Partha Pratim Roy Mr. Shubhojyoti Dutta Ms. Anusuya Basu Dutta Mr. Dyutiman Banerjee Mr. Deb Kumar Deashi Mr. Ronit Deyashi …. advocates Reserved on : 25.06.2025 Judgment on : 01.08.2025 Hiranmay Bhattacharyya, J.:-

1. This application under Article 227 of the Constitution of India is at the instance of the defendant /counter claimant and is directed against an order being no. 41 dated April 5, 2025 passed by the learned Judge Commercial Court at Alipore, District 24 Parganas (S) in Money Suit no. 12 of 2022 which has been subsequently renumbered as M.S. (Com) no. 55 of 2022.

2. By the order impugned, the application filed by the opposite party herein praying for vacating the order of ex-parte hearing of the counter claim stood allowed.

3. The opposite party filed a suit being Money Suit no. 12 of 2022 before the learned Judge, Commercial Court at Alipore praying for a decree for recovery of money together with interest thereon. The petitioner appeared in the said suit and filed its written statement along with counter claim. The opposite party filed its written statement to the counter claim which was also accepted by the learned Trial Judge. The Money Suit no. 12 of 2022 was subsequently renumbered as M.S. (Com) 55 of 2022.

4. The Money Suit was dismissed by an order dated May 12, 2023.

5. Petitioner filed an application praying for fixing a date for adjudication of counter claim.

6. The learned Judge of the Commercial Court restored the Money Suit by an order dated 16th May, 2023. Thereafter, the evidence of the defendant’s witness was completed ex parte and the petitioner filed its notes of argument in respect of the counter claim on 20.11.2024. The learned Trial Judge fixed 22^nd January 2025 for hearing the argument of the petitioner. On that date i.e., on 22^nd January, 2025, the opposite party appeared before the Court and filed the application for vacating the order of ex-parte hearing of the counter claim against the plaintiff. Such application stood rejected by the impugned order.

7. Being aggrieved, by such order, the counter claimant has approached this Court.

8. Mr. Chakraborty learned advocate appearing for the petitioner contended that on 16.12.2022 the counter claim filed by the petitioner was accepted and on that very day the written statement to the counter claim filed by the opposite party was also accepted. He further contended that on and from 08.05.2023 and thereafter on consecutive dates till the final hearing of the argument of the counter claim on 22.01.2025 the opposite party did not take any steps either as a plaintiff in the Money Suit or as a defendant to the counter claim. He contended that since the Money Suit was dismissed due to non-appearance of the opposite party and nothing was mentioned about the counter claim in the said order, petitioner filed a put up petition for fixing a date for disposing of the counter claim and the learned Trial Judge restored the Money Suit on the case information system. He further contended that no valid explanation has been given in the vacating application as to why the opposite party did not appear on successive dates. He further contended that the hearing of the counter claim reached the final stage since the written notes of argument was already filed on November 20, 2024. He further contended that the application for vacating the ex-parte order was not maintainable as on the date of filing of the said application the suit had already crossed the stage of Order IX Rule 7. He placed reliance upon a decision in the case of Sangram Singh vs. Election Tribunal, Kotah and Another reported at AIR (1955) SC 425 in support of his contention th