MOUSHUMI BHATTACHARYA,J. - (1.) This is an application on behalf of the defendant nos. 2 and 3 seeking liberty to file their respective written statements in the suit and for the suit not to be transferred to the undefended list.
(2.) The entire controversy centres around an order passed by the Hon'ble Supreme Court dated 15th February, 2018 by which the defendant no. 1 was permitted to file its written statement in the suit. The defendant no. 1 had filed a Special Leave Petition before the Supreme Court from an order of the Division Bench of this Court.
(3.) The facts leading to the filing of the SLP and the order of the Supreme Court are required to be briefly stated. The plaintiff filed the instant suit against the defendants for a decree of Rs. 1,63,34,537/-. The summons in the suit were sent by the plaintiff to the defendants and were later sent by way of substituted service under Order 5, Rule 20 of the Code of Civil Procedure, 1908. The substituted service was effected by publication in newspapers at the place where the defendants were stated to carry on their business. Since the defendants did not appear at the time of hearing, the suit was decided on merits in the absence of the defendants. On 9th February, 2015, a decree was passed ex parte against the defendants for a sum of Rs. 1,43,18,537/- together with interest. On coming to know of the decree, the defendants filed an application under Order 9, Rule 13 of the CPC for setting aside of the decree primarily on the ground that the defendants did not have any knowledge of the suit as the summons had not been served on them. The stand of the defendants was contested by the plaintiff who contended that the summons had been properly served including by way of publication made in the newspaper. The learned 1st Court, however, disregarded the contentions of the defendants and dismissed the application for setting aside the decree which had been passed ex parte against the defendants. Aggrieved by the said order, the defendants challenged the same before the Appeal Court and by an Order dated April 24, 2017, the Division Bench dismissed the appeal filed by the defendants and affirmed the order of the learned First Court. Aggrieved by the order of the Division Bench, the defendant no. 1 filed a Special Leave Petition before the Supreme Court. By the impugned order, the Supreme Court set aside the ex parte decree by the learned Single Judge dated February 9, 2015 as well as the Judgment of the Division Bench dated April 24, 2017. The operative portion of the order of the Supreme Court is set out below:- "39. In the light of the foregoing discussion, the appeal succeeds and is allowed. The judgments of the Single Judge and Division Bench are set aside. The appellant's (defendant No.1) application filed under Order 9, Rule 13 of the Code (GA No. 766/2016) is allowed. As a consequence, the ex parte decree dated 09.02.2015 passed in C.S. No. 15/2014 is set aside. The civil suit is restored to its original file. 40. Parties to appear before the concerned Court on 05.03.2018 to enable the Court to decide the suit. The appellant (defendant No.1) will be granted an opportunity to file the written statement. The Court will ensure disposal of the suit on merits in accordance with law within a year as an outer limit. 41. It was, however, brought to our notice that during the pendency of this appeal, the appellant was asked to deposit a sum of Rs. 47.50 lakhs which they have deposited. Now that the suit is restored to its original file for its decision on merits, we make it clear that the deposit and withdrawal of Rs. 47.50 lakhs would be subject to the final result of the suit.";