Full Judgment
ORDER
SHEET CS290of 2005 GA870of 2006 GA2695of 2008 IN THE HIGH COURT AT CALCUTTA Ordinary Original Civil Jurisdiction ORIGINAL SIDE ROSEWOOD PROJECTS PVT.LTD.Versus IMECO LTD.BEFORE: The Hon'ble JUSTICE INDRAJIT CHATTERJEE Date : 1st September, 2014.
Mr.Debnath Ghosh, Adv.Mr.Manoj Kr.
Tiwari, Adv..for the plaintiff.
Mr.D.Ghosal, Adv.Mr.S.Dasgupta, Adv.Mr.S.C.Bose, Adv..for the defendant.
The Court: In GA No.870 of 2006 the present petitioner has prayed for an order to file the written statement in Suit No.290 of 2005 beyond the period of six weeks from 10th January, 2006.
The matter is taken up for hearing.
The written statement had already been filed.
Let the written statement be accepted.
The prayer as made out in the GA is hereby allowed in respect of this prayer.
The GA No.2695 of 2008 is also taken up for hearing.
In this case the present application has prayed for an order virtually under Order 7 Rule 10 of the C.P.C.for return of the plaint.
There is also a prayer virtually under Order 7 Rule 11 of the C.P.C.for dismissal of the instant suit as it is not maintainable before this Hon’ble Court.
Heard the matter.
Perused the application etc.It may be noted that this suit was filed in the year 2005 as per order of the Division Bench as passed in APO No.109 of 2005 read with CP No.243 of 2003.
It was submitted on behalf of the Learned Lawyer appearing on behalf of the petitioner that this suit is not maintainable in this Court and as such the suit be dismissed being not maintainable before this Hon’ble Court and/or in the alternative for an order directing the return of the plaint to the plaintiff for filing the suit before the appropriate Court having jurisdiction.
It is the contention of this application that another arbitration suit has been filed against the defendant at Chennai outside the jurisdiction of this Hon’ble Court arising out of another Memorandum of Understanding dated 12th April, 2002 and that the said arbitration suit is based on the same set of facts.
It may be noted that as per the order of the Division Bench referred to above the bank guarantee and/or security has been furnished as per order dated 01.09.2005.
This Court has also been referred to an order of the Hon’ble Single Bench of this Hon’ble Court dated 30th July, 2014 wherein the present defendant who is the petitioner before this Court was directed by the said order to make payment and the said payment has been made (fiRs.instalment only) by the present defendant petitioner.
The matter has not been challenged before any higher forum.
It may be reiterated that this case is pending before this Court since 2005 and I have already stated that the written statement has already been filed.
The present petitioner cannot below hot and cold at the same time.
Considering the fact that when defendant petitioner has complied with the direction of the order passed by this Court as regards the order dated 30th July, 2014 passed by another bench of this Hon’ble Court, that it has filed the written statement and the fact that the suit has been instituted as per order of the Division Bench of this Hon’ble Court this Court cannot order for the return of the plaint under Order 7 Rule 10 of the C.P.C.The petition being devoid of any merit is considered and rejected.
There will be no order as to costs.
Let the original suit be listed in the next monthly list under the heading ‘For Hearing’.
(INDRAJIT CHATTERJEE, J.) dg2