Karnataka High Court
M/S Samar Lifestyle Private Limited vs M/ Goel Road Carriers Pvt Ltd on 8 November, 2024
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NC: 2024:KHC:45297
WP No. 27102 of 2024
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 8TH DAY OF NOVEMBER, 2024
BEFORE
THE HON'BLE MR JUSTICE R. NATARAJ
WRIT PETITION NO. 27102 OF 2024 (GM-CPC)
BETWEEN:
M/S SAMAR LIFESTYLE PRIVATE LIMITED
HAVING ITS REGISTERED OFFICE AT
192/1, 2, 3, C.K. PALYA,
SAKALAWARA POST,
BANNERGHATTA ROAD,
BANGALORE-560 083
PRIVATE LIMITED COMPANY INCORPORATED UNDER
THE COMPANIES ACT, 2013
REPRESENTED BY PAVEET AMINE
DIRECTOR OF
M/S SAMAR LIFESTYLE PRIVATE LIMITED
OFFICE AT 192/1, 2, 3, C.K. PALYA,
SAKALAWARA POST,
BANNERGHATTA ROAD,
BANGALORE-560 083
...PETITIONER
(BY SMT. DHANUSHRI R., ADVOCATE FOR
Digitally signed SRI. R. KIRAN, ADVOCATE)
by
MARKONAHALLI
RAMU PRIYA
Location: HIGH
AND:
COURT OF
KARNATAKA
M/S. GOEL ROAD CARRIERS PVT. LTD.,
HAVING ITS REGISTERED OFFICE AT
KHASRA NO.122/6/1,
MAIN 100 FT. ROAD,
SECOND FLOOR, SANT NAGAR,
BURARI, DELHI-110084
PRIVATE LIMITED COMPANY INCORPORATED UNDER
THE COMPANIES ACT, 1956
THROUGH ITS AUTHORIZED
REPRESENTATIVE/EMPLOYEE
MR. VIDHYA SAGAR DWIVEDI
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NC: 2024:KHC:45297
WP No. 27102 of 2024
ALSO AT:
B-32, DEVRAJ URS TRUCK TERMINAL
INDUSTRIAL SUBURB, 2ND STAGE,
OPP. KANTIRAVA STUDIO,
YESHWANTPUR,
BANGALORE-560022.
...RESPONDENT
(BY SRI. ADITHYA D., ADVOCATE FOR CAVEATOR/RESPONDENT)
THIS WP IS FILED UNDER ARTICLE 227 OF THE
CONSTITUTION OF INDIA PRAYING TO SET ASIDE THE ORDER
DATED 18.07.2024 PASSED BY THE LEARNED THE LXXXVI
ADDITIONAL CITY CIVIL AND SESSIONS JUDGE, BENGALURU (CCH-
87), IN ALLOWING THE INTERLOCUTORY APPLICATION UNDER
SECTION 151 OF CPC AS PER ANNEXURE-A IN COM O.S NO. 739 OF
2022 AND ETC.
THIS PETITION, COMING ON FOR PRELIMINARY HEARING,
THIS DAY, ORDER WAS MADE THEREIN AS UNDER:
CORAM: HON'BLE MR JUSTICE R. NATARAJ
ORAL ORDER
The defendant in Com. O.S No.739/2022 on the file of
LXXXVI Additional City Civil and Sessions Judge, Bengaluru,
(henceforth referred to as 'the Commercial Court') has filed this
petition challenging the correctness of an order dated
18.07.2024, by which, it allowed the applications filed by the
plaintiff under Section 151 of the Code of Civil Procedure, 1908
(for short, 'CPC") to reopen the stage of the case and to accept
the written statement to the counter-claim.
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2. The parties shall henceforth be referred to as they
were arrayed before the Commercial Court. The petitioner
herein was the defendant while the respondent was the plaintiff
before the Commercial Court.
3. The suit in Com. O.S. No.739/2022 was filed for
recovery of Rs.11,75,656/- along with pendente lite and future
interest at 24% per annum from the date of the suit till actual
realization. The defendant filed an application under Order VIII
Rule 1 read with Section 151 of CPC along with written
statement and counter-claim on 24.06.2023. The written
statement filed by the defendant was rejected by the
Commercial Court on 01.07.2023 on the ground that it was
beyond the time prescribed under Order VIII Rule 1 of CPC.
This order was assailed by the defendant before this Court in
W.P. No.14255/2023. This Court allowed the writ petition in
terms of the order dated 10.07.2023 and directed the
Commercial Court to take on record the written statement
along with counter-claim filed by the defendant. The plaintiff
has challenged the said order before the Hon'ble Apex Court in
SLP(C) No.22128/2023, which was dismissed on 10.10.2023 on
the following terms:
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"It will be appropriate for the petitioner - M/S
Goel Road Carriers Pvt. Ltd. to file an application for
review before the High Court, which application, if
filed within a period of 30 days from today, will not be
dismissed on the ground of delay. However, the
application for review will be considered and decided
in accordance with law and on its own merits. In case
the application for review is dismissed, it will be open
to the petitioner to challenge the impugned
order/judgment before this Court.
Recording the aforesaid, the special leave
petition is dismissed."
4. Consequent to the above, a review petition in R.P.
No.551/2023 was filed before this Court which was dismissed
on 31.01.2024. Thereafter, the defendant filed an application
under Order VIII Rule 6E read with Rule 10 and Section 151 of
CPC., to decree the counter-claim. The said application was
rejected by the Commercial Court on 27.03.2024. The plaintiff
filed rejoinder to written statement and filed reply to the
counter-claim on 20.04.2024. Later, he filed two applications
under Section 151 of CPC., to reopen the stage of the case and
to accept the reply to the counter-claim. The Commercial Court
allowed the applications in terms of the order dated
18.07.2024.
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5. Being aggrieved by the said order, the defendant is
before this Court.
6. Learned counsel for the defendant / petitioner
submitted that under Order VIII Rule 6A (3) of CPC., the
plaintiff was required to file a written statement or reply to the
counter-claim within the time permitted. She contends that the
Commercial Court in terms of the order dated 04.08.2023,
granted time to the plaintiff to file the rejoinder and affidavit of
admission and denial of documents, if any, till 22.08.2023 but
the plaintiff did not file the reply but filed a belated reply to the
counter-claim on 20.04.2024 i.e., beyond 120 days prescribed
under Order VIII Rule 1 of CPC. She contends that the
proceedings is before Commercial Court and in view of the
judgments of the Hon'ble Apex Court in SCG Contracts
(India) Private Limited v. K.S. Chamankar Infrastructure
Private Limited and Others [(2019) 12 SCC 210] and in
Sagufa Ahmed and Ors. v. Upper Assam Polywood
Products Private Limited and Others [(2021) 2 SCC 317],
objections to the counter-claim had to be filed within the time
permitted. She contends that the proceedings before the
Commercial Court have to be construed strictly and the
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provisions of the Code of Civil Procedure, 1908 have to be
applied strictly in view of the law declared by the Hon'ble Apex
Court in the above noted judgment.
7. Per contra, the learned counsel for the plaintiff /
respondent contended that the order dated 31.01.2024 passed
by this Court in Review Petition No.551/2023 was received by
the plaintiff only in the month of April 2024 and therefore, the
plaintiff was at a disadvantage to file a reply to the counter-
claim. He submits that the proceedings before the Commercial
Court is still at a nascent stage and therefore, no prejudice
would be caused to the defendant if an opportunity is granted
to the plaintiff / respondent to file reply. Besides this, he
contends that there cannot be any automatic decree of the
counter-claim as the defendant is bound to establish the
entitlement to the counter-claim.
8. I have considered the submissions made by the
learned counsel for the defendant/petitioner and the learned
counsel for the plaintiff / respondent.
9. As rightly contended by the learned counsel for the
defendant, the proceedings before the Commercial Court has to
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be strictly construed and the timelines fixed under the Code of
Civil Procedure, 1908 have to be strictly adhered to. There is
no escape from this as the purpose of the Commercial Courts is
to ensure speedy and quick disposal of the claims brought
before it. The dispute between the parties has reached the
Hon'ble Supreme Court on an interlocutory stage. As the
matter stands, the suit is still at the initial stages. Therefore, an
opportunity has to be granted to the plaintiff to contest the
counter-claim, by placing it on terms for the delay in filing the
reply to the counter-claim. Having said that, this Court cannot
ignore the fact that the defendant is also bound to establish the
counter-claim by producing oral and documentary evidence.
There is no automatic decree as provided under Order VIII Rule
10 of CPC. A Division Bench of this Court in Smt. Aisha Bi
and Another v. M. Shamsher Khan [ILR 2001 Karnataka
546] held that there cannot be an automatic decree if the
written statement is not filed.
10. In that view of the matter, though the plaintiff has
filed rejoinder to the written statement filed by the defendant
and reply to the counter-claim belatedly, since the proceeding
is still at the stage of evidence of the plaintiff, the reply to
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counter-claim and rejoinder to the written statement have to be
accepted by compensating the defendant for the delay.
11. Hence, this writ petition is disposed off upholding
the order dated 18.07.2024 passed by the LXXXVI Additional
City Civil and Sessions Judge, Commercial Court, Bengaluru, on
I.As., filed by the plaintiff under Section 151 of the Code of
Civil Procedure, 1908 in Com. O.S. No.739/2022. However, the
plaintiff/respondent herein shall pay cost of Rs.25,000/-
(Rupees Twenty Five Thousand only) to the
defendant/petitioner herein before the Commercial Court on the
next date of hearing. It is made clear that if the cost is not
paid, the Commercial Court shall ignore the reply filed to the
counter claim and proceed in accordance with law.
Sd/-
(R. NATARAJ)
JUDGE
SMA
