Jharkhand High Court
Jharkhand Urja Utpadan Nigam Ltd vs M/S Bharat Heavy Electricals Limited on 14 February, 2025
Author: Deepak Roshan
Bench: Deepak Roshan
IN THE HIGH COURT OF JHARKHAND AT RANCHI
Commercial Appeal No. 1 of 2025
1. Jharkhand Urja Utpadan Nigam Ltd., having its office at Engineering
Bhawan, P.O. & P.S.- Dhurwa, District-Ranchi
2. The Chairman & Managing Director, Jharkhand Urja Utpadan Nigam
Ltd., having its office at Engineering Bhawan, P.O. & P.S.-Dhurwa,
District-Ranchi
...... Appellant(s)/Defendants(s)
Versus
M/s Bharat Heavy Electricals Limited, a Central Government
Company incorporate under the Companies Act, 1956 having its
registered office at BHEL House, Siri Fort, New Delhi-110049
through, General Manager (RMSG), Block-7, Annexe, Piplani BHEL,
Bhopal-462022 duly authorized by the said company vide DOP Clause
No. 9 (Page No. 53, dated 19.11.2020)
.... Respondent/Plaintiff
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CORAM: HON'BLE THE CHIEF JUSTICE
HON'BLE MR. JUSTICE DEEPAK ROSHAN
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For the Appellants: Mr. Sachin Kumar, Sr. S.C.
Mr. Karamdeo, Advocate
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C.A.V. on: 30.01.2025 Pronounced on: 14 . 2 .2025
M.S. Ramachandra Rao, C.J.(Oral)
I.A. No. 11269 of 2024 in/and Commercial Appeal No. 1 of 2025
1. This application has been filed under Section 5 of the Limitation
Act, 1963 to condone the delay of 301 days in filing this appeal under
Section 13(1-A) of the Commercial Courts Act, 2015 challenging the
judgment dt. 09.10.2023 passed in Commercial Suit No. 16 of 2015 of the
Presiding Officer, Commercial Court, Ranchi.
2. The said suit had been filed by the respondent against the
applicants for recovery of Rs. 26,59,34,854/- with interest @ 15.75 % per
annum (quarterly) till realization from 12.11.2014 on the basis of the
Award passed by the MSME Council, Kanpur.
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3. In the application seeking condonation of delay, it is alleged that
the applicants never received a copy of the judgment or any
communication concerning the disposal of the case from the Commercial
Court or counsel engaged by the applicants for conducting the suit, and
therefore, the applicants could not filed any appeal before this Court
within the period of limitation prescribed therefor under Section 13(1-A)
of the Commercial Courts Act, 2015.
4. Reliance is placed by applicants on Order XX Rule 1 of the C.P.C.
as applicable to the Commercial Courts under which the Commercial
Courts shall, within 90 days of the conclusion of the arguments
pronounce judgment, and issue copies of the judgment to all the parties to
the dispute through electronic mail or otherwise.
5. It is contended that mere pronouncement of the order/judgment of
the Commercial Court would not be the starting point of limitation, but
the limitation will have to be computed as commencing from the date on
which the copy of the judgment is issued to the parties.
6. It is contended that in the instant case, the copy of the judgment of
the Commercial Court in the suit was not issued to the applicants after
pronouncement of the judgment; that they obtained the same after making
an application in that regard; and so the period of limitation would start
from the date of issue of the judgment by the Commercial Court.
7. It is contended that the respondent also never made any
communication with the applicants concerning disposal of the suit and
that they also did not make any demand of payment in terms of the
judgment/decree in the suit.
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8. It is alleged that the applicants came to know about the disposal of
the suit eight months after its actual disposal on account of lack of
communication, and the delay is therefore liable to be condoned.
9. Other contentions on merits of the case have also been raised in
the application for condonation of delay.
10. Counsel for the applicants contended that under Section 16 of the
Commercial Courts Act, 2015 certain amendments were made to the
Code of Civil Procedure, 1908 in so far as it applies to the Commercial
Courts; that Order XX Rule 1 C.P.C. in so far as it applies to the
Commercial Courts mandates the supply of copies of the judgment of the
Commercial Courts to all parties to the dispute through electronic mail or
otherwise; this being a special provision, does not obligate the applicants
to secure the copy of the certified copy of the judgment of the
Commercial Courts; and if the Commercial Court fails in its statutory
obligation to furnish the certified copy of the judgment as mandated in
Order XX Rule 1 C.P.C. as applicable to it, the period of limitation does
not commence for filing of the appeal.
11. Counsel for the applicants placed reliance on the judgment of the
Supreme Court in Housing Board, Haryana Vs Housing Board Colony
Welfare Association and others1 arising under the Consumer Protection
Act, 1986 which contains a similar provision in Section 15 of the
Consumer Protection Act, 1986 and the Haryana Consumer Protection
Rules, 1988 which also requires communication of the order of the
District forum to the parties free of charge.
(1995) 5 SCC 672
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12. Counsel further placed reliance on the judgment of the Supreme
Court in Government of Maharastra Vs. Borse Brothers Engineers and
Contractors Private Limited2 to contend that alternatively this Court in
exercise of power under Section 5 of the Limitation Act, 1963 can
condone the delay in filing the Commercial Appeal challenging the
judgment of the Commercial Court even if it is not filed within the period
of 60 days from the date of the judgment of the Commercial Court.
According to him there is no restriction on the power of this Court to
condone the delay beyond the period of 60 days from the date of
judgment of the Commercial Court.
Consideration by the Court
13. We have considered the submissions of the counsel for the
applicants.
14. The statement of the objects and reasons of the Commercial Courts
Act states that the Commercial Courts Act, 2015 was enacted to provide
for speedy disposal of high value commercial disputes and to accelerate
economic growth, improve the international image of the Indian Justice
Delivery System and the faith of the investor world in the legal culture of
the nation.
15. It is to that end that the period of limitation for filing the appeal to
the Commercial Appellate Division of the High Court was fixed in
Section 13(1-A) of the Commercial Courts Act, 2015 as 60 days from the
date of judgment or order.
(2021) 6 SCC 460.
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16. Section 14 mandates that the Commercial Appellate Court and the
Commercial Appellate Division shall endeavour to dispose of the appeals
filed before them within a period of six months from the date of filing of
such appeal.
17. It is in that context that Section 16 amended certain provisions to
the Code of Civil Procedure, 1908 in their application to any suit in
respect of a commercial dispute of a specified value. One such
amendment is no doubt amendment to Order XX Rule 1 CPC which
mandates issuance of copies of the judgment of the Commercial Courts to
the parties to the dispute through electronic mail or otherwise.
18. The question for consideration is:
" whether the applicants herein can plead that the period of limitation
for filing the appeal to Commercial Appellate Division of this Court did
not commence at all because the certified copy of the judgment had not
been issued to the applicants by the Commercial Courts?"
19. In order to answer this question, we cannot lose sight of the whole
purpose of enactment of the Commercial Courts Act, 2015 i.e., to provide
for speedy disposal of high value commercial dispute.
20. No doubt there was a similar provision in Haryana Consumer
Protection Rules, 1988 framed under the Consumer Protection Act, 1986
which was considered by the Supreme Court in the case of Housing
Board, Haryana (1 supra).
The said provision in the Haryana Consumer Protection Rules,
1988 also provided for communication of the order of the District forum
to the parties free of charge in order to avoid the delay as well as to save
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the parties from the burden of expenses that may be incurred for
obtaining the certified copy.
The Supreme Court held that the scheme of the Consumer
Protection Act was to provide for better protection of the interest of the
consumers as a measure for economical and speedy remedy for the
settlement of the dispute and the matters connected therewith; and
therefore, the said rule should be understood in a manner so that it would
protect the interest of the parties before the District forum by making it
obligatory on the District forum to provide a copy of the order duly
signed and dated by the members of the Bench; and the period of
limitation prescribed with regard to filing of an appeal under Section 15
of the said Act therefore, has to be computed as commencing from the
date of communication of the order in the manner laid down in the rules.
It was in that context that it was held that mere pronouncement of
an order in the open Court would not be enough, but under the scheme of
the rules copy of the said judgment has to be communicated to the parties
affected by the said order so that the parties adversely affected therefrom
may have a fair and reasonable opportunity of knowing the text, reasons
and contents thereof so as to formulate grounds of attack before the
appellate or before the higher forums. In absence of such communication
of signed and dated order, it was held that the parties adversely affected
by it will have no means of knowing the contents of the order so to
challenge the same and get it set aside by the appellate authority or by the
higher forums.
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21. Normally petitioners before the District forums under the
Consumer Protection Act, 1986 are individuals and not Corporate entities
like the appellant/instrumentality of the State. So, there is justification for
taking the view as regards petitioners in District forums that the
provisions in the Haryana Consumer Protection Rules, 1988 which
mandated communication of the order of the said forums to the parties
free of charge was to save the parties from the burden of expenses that
may be incurred for obtaining the certified copy.
22. We are afraid that the logic behind the provision contained in
Haryana Consumer Protection Rules, 1988 framed under the Consumer
Protection Act, 1986 cannot be applied to the litigants before the
Commercial Court. For Commercial entities and in particular litigants
like the applicants herein who are the State Government Undertakings,
the expenses of obtaining a certified copy of a judgment of the
Commercial Court would be very small compared to the stakes involves
in the litigation.
23. Therefore, they cannot be put on the same footing as a petitioner
before the District Consumer forum; and the logic of counting the period
of limitation from the date of communication of the order of consumer
forum, cannot be applied to a Commercial dispute to which Commercial
entities are parties.
24. In our opinion, Order XX Rule 1 CPC as amended and made
applicable to the Commercial Courts is to be treated as only directory and
not mandatory. So notwithstanding the provision contained in the
amended Order XX Rule 1 CPC (mandating issuance of copies to the
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parties to the dispute through electronic mail or otherwise), if such copies
are not issued within a reasonable time, the parties to the dispute have to
apply for the same, and after obtaining it, prefer an appeal within the time
prescribed in Section 13(1-A) of the Commercial Courts Act, 2015.
25. This is because the speedy resolution of high value commercial
dispute cannot be lost sight of. Such an interpretation would be in tune
with the scheme and object of the Commercial Courts Act, 2015 and any
interpretation of the nature advanced by the counsel for the applicants
would defeat the whole purpose of the object of the Commercial Courts
Act, 2015 to provide for speedy disposal of high value commercial
disputes.
26. Therefore, we reject the contention of the counsel for the applicants
that the period of limitation for filing the appeal to the Commercial
Appellate Division of the High Court would not commence unless the
judgment of the Commercial Court in the Commercial suit was
communicated by the said Commercial Court to the parties.
27. We shall next consider whether the delay of 301 days in filing this
Commercial Appeal can be condoned in exercise of power conferred on
this Court under Section 5 of the Limitation Act, 1963.
28. The extent of applicability of Section 5 of the Limitation Act, 1963
to cases falling under the Commercial Courts Act, 2015 fell for
consideration of the Supreme Court in Government of Maharastra
(2 supra).
29. The Supreme Court in Para 19 of it's judgment in Government of
Maharastra (2 supra) discussed the statement of objects and reasons
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behind enacting of the Commercial Courts Act, 2015 and held that period
of limitation must always to some extent be arbitrary and may result in
some hardship, but this is no reason as to why they should not be strictly
followed.
In para 32, it held that the condonation of delay under Section 5 of
the Limitation Act, 1963 has to be seen in the context of the object of
speedy resolution of the dispute.
In para 58, the Supreme Court held that given the object sought to
be achieved under the Commercial Courts Act, 2015 i.e., the speedy
resolution of the disputes, expression "sufficient cause" in Section 5 of
the Limitation Act, 1963 is not elastic enough to cover long delays
beyond the period provided by the appeal provision itself ; and that the
expression "sufficient cause" is not itself a loose panacea for the ill of
pressing negligent and stale claims.
In other words, the Supreme Court indicated that in exercise of
power under Section 5 of the Limitation Act, 1963 a delay beyond the
period of 60 days from the date on which the appeal could have been filed
can be condoned (i.e., below 120 days from the date of pronouncement of
the judgment) by invoking Section 5 of the Limitation Act, 1963, but
where there is negligence, inaction or lack of bona fides, such power
ought not to be exercised.
It went further in para 59 by observing that merely because the
Government is involved, a different yardstick for condonation of delay
cannot be laid down. (This rule would thus apply equally to
instrumentalities of Government like the applicants herein).
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It held in para 62 that merely because sufficient cause has been
made out in the facts of a given case, there is no right in the applicants or
the appellants to have the delay condoned.
It concluded in para 63 as under:
"63. Given the aforesaid and the object of speedy disposal sought
to be achieved both under the Arbitration Act and the Commercial
Courts Act, for appeals filed under section 37 of the Arbitration Act
that are governed by Articles 116 and 117 of the Limitation Act or
Section 13(1-A) of the Commercial Courts Act, a delay beyond 90
days, 30 days or 60 days, respectively, is to be condoned by way of
exception and not by way of rule. In a fit case in which a party has
otherwise acted bona fide and not in a negligent manner, a short
delay beyond such period can, in the discretion of the court, be
condoned, always bearing in mind that the other side of the picture
is that the opposite party may have acquired both in equity and
justice, what may now be lost by the first party's inaction,
negligence or laches. (emphasis supplied)
30. Thus, the Supreme Court in Government of Maharastra (2 supra)
permitted condonation of delay beyond 60 days in a case falling under the
Commercial Courts Act only by way of exception and not by way of rule.
If the applicants for condonation of delay had not acted bonafide and had
acted in a negligent manner as in the instant case, the delay is not liable to
be condoned.
31. In the instant case, the delay in filing the appeal is 301 days - way
beyond 60 days + 60 days = 120 days permitted by the judgment of the
Supreme Court to be condoned in exercise of power under Section 5 of
the Limitation Act, 1963. Therefore, such inordinate delay caused by
negligence of the applicants is not liable to be condoned.
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32. We may also point out that the applicants were represented before
the Commercial Court, Ranchi by counsel and the judgment was
obviously pronounced in the presence of the counsel.
Though the order was pronounced on 09.10.2023 it appears that the
application for issuance of certified copy was made on 30.08.2024, it was
made ready on 07.09.2024, and the appeal was filed on 04.10.2024.
If the Commercial Court had not communicated the copy of its
judgment to the applicants within the reasonable time, it was incumbent
on the part of the counsel for the applicants or the employees in the Legal
Department of the applicants to apply for issuance of certified copy from
the Commercial Court, but they have failed in their duty to apply for it
when they did not receive it within a reasonable time.
Their negligence resulted in the inordinate delay of 301 days in
filing this appeal.
33. The applicants cannot blame the respondent for not communicating
to them about the disposal of the appeal and for not making any demand
of payment in terms of the decree of the Commercial Court.
34. They also cannot take advantage of the negligence of the counsel
engaged by them in not informing the applicants about the judgment of
the Commercial Court. This is because the applicants have a Legal
Department and employees engaged by the applicants in that department
have a duty to monitor what is happening in the cases to which the
applicants are parties, keep track of the progress of the said cases and the
decisions therein, and ensure that applications for issuance of certified
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copy are made to the concerned court so that the appeals, if required, can
be preferred within the period of limitation prescribed by law.
35. We therefore, hold that the applicants have not shown any
sufficient cause for condoning the inordinate delay of 301 days in filing
the Commercial Appeal.
36. Accordingly, I.A. No. 11269 of 2024 is dismissed.
37. Consequently, the Commercial Appeal is also dismissed.
38. Pending Interlocutory Application, if any, stands disposed of.
(M. S. Ramachandra Rao, C.J.)
(Deepak Roshan, J.)
N.A.F.R.
VK
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