Bombay High Court
National Spot Exchange Limited vs M/S. N.K. Proteins Limited And 49 ... on 26 July, 2021
Bench: G.S. Patel
9-NMS749-2015 IN S432-2015.DOC
Arun
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
NOTICE OF MOTION NO. 749 OF 2015
IN
SUIT NO. 432 OF 2015
National Spot Exchange Ltd ...Plaintiff
Versus
NK Proteins Ltd & Ors ...Defendants
Mr Janak Dwarkadas, Senior Advocate, with Ashish Kamat,
Melvyn Fernandes and Shlok Parekh, i/b Vaish Associates, for the
Plaintiff.
Mr Pradeep Sancheti, Senior Advocate, with Vishal Maheshwari &
Kamini Pansare, i/b VM Legal, for Defendants Nos. 1 to 4.
Mr Anshul Anjarlekar, i/b Raval-Shah & Co, for Defendants Nos.
13, 15, 16 and 17.
CORAM: G.S. PATEL, J
(Through Video Conferencing)
DATED: 26th July 2021
PC:-
1.
The application on praecipe is that the suit, filed on 16th
September 2015, be transferred to the Commercial Division. On the
face of it, on a reading of several paragraphs of the Plaint, including
paragraphs 33, 34, 41, 85 and 86 among others, along with prayer
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clause (a) and Exhibit "C" at page 87, it seems to me self-evident
and beyond all dispute that the Suit falls squarely within the
definition of a "Commercial Dispute" under Sections 2(c)(i) and
2(c)(xviii) of the Commercial Courts Act, 2015.
2. There is a vigorous opposition from Mr Sancheti,
representing Defendants Nos. 2 to 4. He suggests that the
allegation in the Plaint is one of fraudulent dealings and that these
Defendants, all companies, are sought to be made liable for the
alleged fraudulent transactions of other Defendants, including the
1st Defendant. It is submitted that Defendants Nos. 2 to 4 are all
corporate entities. As between the Plaintiff and them there is no
mercantile transaction. Therefore, the Suit is not a commercial
dispute as between the Plaintiff and Defendants Nos. 2 to 4.
3. The submission is thoroughly misconceived. It should never
have been taken. In the first place, whether or not a suit is covered
by the Commercial Courts Act is a matter to be assessed on the
averments in the Plaint. It is not dependent on what the defendants
say. The Commercial Courts Act culls out a special category of
suits and makes provisions for the expedited disposal of such suits.
An opposition of this kind is therefore a submission that the suit as
between the Plaintiff and Defendants Nos. 2 to 4 should not be
expedited and should not receive the priority hearing that the
Commercial Courts Act demands. The Commercial Courts Act
contains extensive rules of procedure. It does not alter the
substantive rights of the parties to a litigation. It simply fast-tracks it
and provides for mechanisms for doing so. It sets strict time-lines
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and endeavours to make attempts at delaying the suit exceedingly
difficult. And expensive.
4. The submission on behalf of Defendants Nos. 2 to 4 is,
therefore, simply unstatable. Every suit should actually receive a
quick disposal. It is because of the enormity of backlogs and the
perceived urgency for quick resolution of commercial disputes that
we have the Commercial Courts Act. This hopeless attempt to try
and wriggle out of a special statute serves no purpose at all. It is an
opposition for the sake of it.
5. In any case, the submission also does not and cannot
withstand logical scrutiny. If the principal transaction between the
Plaintiff and the 1st Defendant is clearly mercantile, and there has
been a fraudulent dealing by the 1st Defendant, which the Plaintiff
says was either for the benefit of, or in connivance and collusion
with Defendants Nos. 2 to 4, this does not make the suit any the less
a Commercial Suit. There is no requirement in the Commercial
Courts Act that against every single defendant there must be an
individual mercantile document or transaction. If this was so, it
would encourage the perpetration of wiude commercial and
corporate fraud. That could never have been the statutory intent.
6. Mr Sancheti submits that he is not opposing expedition.
Rightly so. And if that is correct, then there is no purpose at all to
his objection, one that is entirely of form and bereft of substance.
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7. The Registry will proceed to register the Suit as a
Commercial Suit under the Commercial Courts Act. The value of
the Suit is over Rs. 100 crores. The directions that I issued on 9th
July 2021, will apply to the Suit mutatis mutandis. For convenience
of all concerned, a copy of the order with those directions is
appended to this order.
8. All pending Interim Applications will consequently be
converted into pending Commercial Interim Applications and will
be listed according to the CMIS date.
9. All concerned will act on production of an ordinary copy of
this order.
(G. S. PATEL, J)
26th July 2021
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
IN ITS COMMERCIAL DIVISION
COMMON ORDER IN SERIAL NOS. 901 TO 1013
ON THE SUPPLEMENTARY BOARD
DATED 9TH JULY 2021
CORAM: G.S. PATEL, J
(Through Video Conferencing)
DATED: 9th July 2021
PC:-
1. Heard through video conferencing.
2. I have today had listed from serial Nos. 901 to 1013 on the
Supplementary List commercial suits. All are of the value of more
than Rs 100 crores. This is a sub-class or sub-category of
commercial cases, and all cases in this sub-category stand assigned
to this Court. All these matters are governed and regulated by the
Commercial Courts Act, 2015 ("CCA") and the amendments
effected by that Act to the Code of Civil Procedure, 1908 ("CPC").
3. I propose today to issue directions to give the parties a further
opportunity to complete all compliances. Not all these directions
will apply to every case. From Monday, 12th July 2021, I propose to
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list these cases individually in smaller batches to monitor further
progress towards trial of the Suit.
4. In almost every single one of these cases there are pending
interim applications (in some cases more than one). The pendency
of these interim applications does not mean that the requirements of
the CCA, the CPC or the Bombay High Court (Original Side) Rules
("the Rules") in regard to service, filing of written statement etc.
should not be implemented.
5. For convenience, I have attempted to categorize the various
directions.
A MATTERS STILL ON LODGING NUMBERS
(A.1 In all suits still on a lodging number, irrespective of the
date of institution of the suit, office objections are to be
removed and all filing defects cured by 30th July 2021.
(A.2 If this is not done by that date, the suit will be listed
before this Court on the next available date for
directions.
(A.3 Parties and Advocates are put to notice that if there is
non-compliance with these requirements, I will
consider dismissing the suit forthwith. If good cause is
shown, I may consider granting a short extension, but
this will be on terms.
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B SUITS WHERE SERVICE OF WRIT OF SUMMONS IS
NOT COMPLETE
(B.1 In all cases where writ of summons has not been served
on all parties (as per the requirements of the CCA read
with the Rules and the CPC), service is to be effected
on those not served no later than by 6th August 2021.
(B.2 Because these are commercial suits, where expeditious
and quick disposal is the requirement of the statute,
service is permitted directly by the Advocates for the
Plaintiff(s) by reputed courier with proof of delivery. In
addition, service by email is also permitted.
(B.3 Where Advocates have entered appearance for one or
more of the defendants, the requirement of service is
waived.
(B.4 In all cases the writ of summons is to be accompanied
by a true copy of the plaint. The Advocates for the
Plaintiff must ensure to lodge in the Registry sufficient
copies of the plaint.
C SUITS WHERE SERVICE OF THE WRIT OF
SUMMONS IS COMPLETE BUT WRITTEN
STATEMENT(S) ARE NOT FILED
(C.1 In all cases where the service of the writ of summons is
wholly or partially complete, (i.e. some or all of the
defendants are served), but where written statements
have not been filed by the served defendants, or where
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the defendants are deemed to be served on account of
the Advocate having entered appearance, written
statements are to be filed within 30 days from today.
(C.2 This is subject to the statutory restriction that no
written statement is to be accepted if 120 days have
passed since the date of service of the writ of
summons. This direction follows the decision of this
Court (the Hon'ble Mr Justice SJ Kathawalla) in Axis
Bank Ltd v Mira Gehani & Ors.1 This has to be read
with the decision of the Supreme Court in SCG
Contracts (India) Pvt Ltd v KS Chamankar
Infrastructure Pvt Ltd,2 that is to say, where there is an
application by the defendant under Order VII Rule 11,
that time may be extended by the Court. Any such case
where there is a pending order VII Rule 11 application
will be separately listed for directions. Subject to this,
where written statements have not been filed within the
statutory period, the suits will be listed for directions.
(C.3 Where the period of 30 days from the date of service of
the writ of summons has expired but no written
statement has filed, I will consider granting an
extension (not exceeding the statutory limit, and
subject to the law settled by the judgments noted
above).
1 (2019) SCC OnLine Bom 358.
2 (2019) 12 SCC 210.
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(C.4 However, parties and Advocates are put to notice that
any such extension will, of course, be of not more than
two weeks in the first instance and will be subject to an
order of costs. Every extension up to the prescribed
time limit will be considered on merits and only if good
cause is shown. It will also be subject to an escalating
order of costs.
(C.5 In the current pandemic and lockdown period, the
Supreme Court has ordered the suspension of
limitation periods. This will be taken into account while
granting extensions of time for filing written
statements. However, the order of suspension does not
dispense with the requirement of timely completion of
filings, nor the power to order costs, but only that the
statutory bar on receiving written statements after 120
days will presently not operate. Parties and advocates
will bear this in mind. Thus, if the written statement is
beyond the statutory period or the time given in these
directions, whichever is earlier, the Registry is neither
to reject nor accept the written statement but is to
simply place the matter before the Court for directions.
D SUITS IN WHICH THE WRIT OF SUMMONS IS
SERVED AND WRITTEN STATEMENTS HAVE
BEEN FILED.
(D.1 These suits will be separately identified and will be
listed on the next available date for framing issues and
further directions including scheduling the first Case
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Management Hearing as required by Order XV-A of
the amended Code of Civil Procedure, 1908.
E COMMERCIAL SUMMARY SUITS:
(E.1 Where the filing is of commercial summary suit of
more than Rs 100 crores, the appropriate writ of
summons will be issued.
(E.2 The summons for judgment will then be listed (subject
to removal of office objections) on the next available
date.
F FRESH SUITS:
(F.1 As regards fresh commercial suits of the value of Rs.
100 crores and above, these will follow the statutory
norms. In all such cases:
(a) office objections are to be removed within two
weeks of the date of institution of the suit;
(b) writ of summons is to be issued and served
within three weeks of the final numbering of the
suit. Service by courier is permitted with proof
of delivery;
(c) written statements are to be filed within 30 days
of service of the writ of summons or within 30
days of an Advocate entering appearance for the
defendant, whichever is earlier;
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(d) In all fresh suits, soft copies of the plaint, interim
application(s) and annexures will be required.
G NEW FILING NORMS TO BE FOLLOWED
(G.1 All fresh filings after today in this sub-category of
commercial cases will conform to the Full Court
decision of 16th June 2021 regarding filings, i.e. that all
filings will be ONLY on good quality A4-sized white
paper of at least 75 GSM with an inner margin of 5 cm,
an outer margin of 3 cm, in Times New Roman or
Georgia font with a font-size-remove of 14 point throughout.
(G.2 The registry is not to accept any non-conforming filing.
(G.3 This applies to consent terms and minutes of the order,
written submissions or notes of authorities when
permitted and all compilations whether of authorities
or those said (or alleged) to be 'for convenience'.
H PENDING INTERIM APPLICATION(S) ON
LODGING NUMBERS:
(H.1 All pending interim applications or notices of motion
that are still on lodging number will be got finally
numbered by 30th July 2021.
6. The Registry is requested to segregate the pending
commercial suits of the value of Rs. 100 crores and above and to
start listing them for directions in accordance with this order from
26th July 2021.
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7. These directions are subject to periodic revision, as necessary.
8. The matter at Serial No. 914 (Commercial Suit No. 85 of 2015:
National Spot Exchange Ltd v Tavishi Enterprises Pvt Ltd & Ors) is
incorrectly listed on board. It has already been disposed of by an
order dated 1st November 2018. This is noted. The Registry will
update the case status.
9. All concerned will act on production of an ordinary copy of
this order.
(G. S. PATEL, J)
26th July 2021
