State Of Kerala Represented By Chief ... vs Dr.Praveen Kumar .T.K
2024 Latest Caselaw 9855 Ker

Kerala High Court

State Of Kerala Represented By Chief ... vs Dr.Praveen Kumar .T.K on 5 April, 2024

                IN THE HIGH COURT OF KERALA AT ERNAKULAM
                                    PRESENT
                THE HONOURABLE MR.JUSTICE C. JAYACHANDRAN
        FRIDAY, THE 5TH DAY OF APRIL 2024 / 16TH CHAITHRA, 1946
                          OP(C) NO. 359 OF 2024
AGAINST    CA    NO.1   OF   2023     OF   DISTRICT   COURT   &   SESSIONS
COURT,KOZHIKODE
PETITIONERS/APPELLANTS/DFENDANTS:

    1       STATE OF KERALA REPRESENTED BY CHIEF SECRETARY
            GOVERNMENT OF KERALA, SECRETARIAT, THIRUVANANTHAPURAM,
            PIN - 695001
    2       DISTRICT COLLECTOR
            CIVIL STATION KOZHIKODE, CIVIL STATION POST,
            PIN - 673020
    3       DIVISIONAL FOREST OFFICER,
            TIMBER SALES DIVISION, VANASREE POST, ARIKKANOOR,
            KOZHIKODE, PIN - 673028
            BY T.P. SAJAN (SPECIAL GOVERNMENT PLEADER)


RESPONDENT/RESPONDENT/PLAINTIFF:

            DR.PRAVEEN KUMAR .T.K
            AGED 54 YEARS
            SON OF T.K.VIJAYAN, LAKSHMI NIVAZ, ELATHUR POST,
            ELATHUR AMSOM DESOM KOZHIKODE TALUK & DISTRICT, PIN -
            673303
            BY ADV A.KOMU


     THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 05.04.2024,
THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
 O.P.(C).No. 359 of 2024
                            ..2..



                                                         "C.R."


                  J U D G M E N T

Dated this the 5th day of April, 2024

The petitioners herein are the appellants in

Commercial Appeal No. 1/2023 of the District

Court, Kozhikode and the defendants in Commercial

Suit, C.S.No.109/2020, of the Commercial Court,

Kozhikode. Respondent herein is the plaintiff

C.S.No.109/2020. The petitioners are aggrieved by

Exts. P7 and P8 orders of the Principal District

Court, Kozhikode. The gist of the facts involved

in this case is briefed as below:

The respondent/plaintiff filed Commercial Suit as

C.S. 109/2020 before the Commercial Court,

Kozhikode for realisation of money. The

plaintiff/respondent was the successful bidder in

e-auction, for purchase of teakwood, conducted by

3rd defendant/Divisional Forest Officer, on behalf

..3..

of the 1st defendant/State of Kerala. An EMD of

Rs.50,000/- was paid by respondent/plaintiff.

Besides, a sum of Rs.3,00,000/- was also paid

towards the value of the material. Alleging that

further payment was not made within the time, the

above referred amount of rupees 3,50,000/- was

forfeited by the State, challenging which, the

instant suit was filed. The suit was decreed in

favour of respondent/plaintiff vide Ext.P3

judgment. Challenging the same, the petitioners/

defendants preferred Ext.P6 appeal, along with

Ext.P5 petition to condone the delay of 102 days

in preferring the appeal. Ext.P5 application to

condone the delay was dismissed by the Appellate

Court, vide Ext.P7. Consequently, Ext.P6 appeal

was also dismissed, vide Ext.P8 order. Exts.P7 and

P8 are under challenge in this Original Petition.

2. Heard Sri.T.P. Sajan, learned Special

Government Pleader for the petitioners and Sri.

A.Komu, learned counsel for the respondent.

..4..

3. Learned Government Pleader based their

contention upon a decision of the Hon'ble Supreme

Court in Government of Maharashtra v. M/s Borse

Brothers Engineers & Contractors Pvt. Ltd. [2021

KHC 6175], wherein a liberal approach in condoning

delay is called for, if no negligence and laches

on the part of petitioner is found. The reason

espoused by the petitioners for condoning the

delay is that the office of the Government Pleader

met with a technical failure, resulting in delay

in e-filing the appeal memorandum, which according

to the petitioners is a genuine reason for

condonation of delay of 102 days.

4. Learned counsel for the respondent strongly

opposed the aforesaid contentions and placed a few

decisions for consideration of this court. The

counsel contended that the reason espoused by the

petitioners is not a valid ground for condoning

the delay and setting aside orders of dismissal of

..5..

delay petition and appeal. Section 5 of Limitation

Act is generally given a liberal interpretation,

but the same cannot be adopted in case of

commercial disputes, having regard to the

legislative intent with which Commercial Courts

Act was enacted. It was emphasised that the

enactement contemplates adjudication of disputes

in a swift, time-bound manner, with lesser hassles

to the litigating parties. At best, a short delay,

beyond the stipulated period, can be condoned,

whereas in the instant case, the delay is more

than double the period stipulated by the statute,

which cannot be condoned at all, is the contention

urged.

5. Having heard the learned Government Pleader

and learned counsel for the respondent, this

court, endorses the submission made the learned

counsel for the respondent/plaintiff. This court

notice that the statutory time limit for filing a

commercial appeal under section 13 of Commercial

..6..

Courts Act, 2015 is sixty days. In this case,

Ext.P6 appeal was filed with a delay of 102 days.

The reason espoused is an alleged technical error

occurred in e-filing. In the decision relied upon

by the petitioners in M/s Borse Brothers (supra),

the Court observes as below:

"61. 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(1A) 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."

(underlined by me, for emphasis)

6. From the above authoritative pronouncement,

this Court notice a paradigm shift in the approach

..7..

of the courts, in the matter of condonation of

delay in commercial matters governed by the

Commercial Courts Act. The object and purpose of

the Act is surely a matter to be borne in mind,

while interpreting any provision under the

particular statute. This Court notice that, a

period of 60 days is stipulated under Section 13

of the Commercial Courts Act for preferring a

commercial appeal. Unlike in the case of Section

34 of the Arbitration Act, no further period is

stipulated for preferring a commercial appeal. It

could therefore possibly be contented that Section

5 of the Limitation Act may apply, which doctrines

the concept of sufficient cause. The obvious

purpose is to mitigate the hard ship of a suitor

from the rigours of limitation, when the party

may have a justifiable reason for not approaching

the court on time. Indian Courts have consistently

adopted a liberal approach in condoning the delay,

applying Section 5 of the Limitation Act. However,

as referred above, the paradigm shift is clearly

..8..

indicated and adopted by the Hon'ble Supreme

Court, once it comes to adjudication of commercial

matters under the Commercial Courts Act, wherein

expediency and quick resolution is the hall mark.

A liberal approach, as is taken usually, may

perhaps defeat the very purpose of the statute.

7. Coming to the facts at hand, this Court notice

that, the delay sought to be condoned is 102 days,

which commence on the expiry of the stipulated

period of 60 days under Section 13 of the Act. It

could thus be seen that, the delay sought to be

condoned is more than double the original period

stipulated, i.e., 60 days. Such delay cannot be

condoned, going by the above authoritative

pronouncement of the Hon'ble Supreme Court in M/s

Borse Brothers (supra).

8. Apart from the above legal angle, this Court

is not satisfied with the facts as well. The

reason espoused is a technical error in e-filing.

..9..

Had it been true and genuine, recourse should have

been made by the appellants to seek a permission

from the court concerned, so as to enable physical

filing, pointing out the error in e-filing and

also sensitizing the Court regarding the

limitation period. No such action is seen

initiated by the appellant, so as to establish

bonafides.

In the above referred facts and circumstances,

this Court finds no reason to interfere with

Exts.P7 and P8 orders of the appellate Court. In

the result, this Original Petition fails and the

same will stand dismissed.

Sd/-

C. JAYACHANDRAN JUDGE 08/01/24

Vdv/TR

..10..

APPENDIX OF OP(C) 359/2024

PETITIONER EXHIBITS Exhibit P1 TRUE COPY OF THE PLAINT FILED BY THE RESPONDENT/PLAINTIFF BEFORE THE COMMERCIAL/PRINCIPAL SUB COURT KOZHIKODE DATED 23.10.2017 Exhibit P2 TRUE COPY OF THE WRITTEN STATEMENT FILED BY THE PETITIONERS/DEFENDANTS BEFORE THE COMMERCIAL/PRINCIPAL SUB COURT KOZHIKODE Exhibit P3 TRUE COPY OF THE JUDGEMENT IN CS 109/2020 DATED 30.7.2022 OF THE COMMERCIAL /PRINCIPAL SUB COURT KOZHIKODE Exhibit P4 TRUE COPY OF THE GAZETTE NOTIFICATION CONTAINING THE E AUCTION TENDER DATED 16.9.2014

DATED 17.3.2023 Exhibit P6 TRUE COPY OF APPEAL MEMORANDUM IN CA 1/2023 FILED BEFORE THE DISTRICT COURT /COMMERCIAL APPELLATE COURT DATED 17.3.2023 Exhibit P7 TRUE COPY OF THE ORDER DATED 3.7.2023 IN IA NO 1/23 IN CA 1/23 REJECTING THE APPLICATION FOR CONDONING THE DELAY Exhibit P8 TRUE COPY OF THE ORDER DATED 3.7.2023 OF DISTRICT COURT/COMMERCIAL APPELLATE

Exhibit P9 TRUE COPY OF THE STAY ORDER DATED 24.11.2023 OF HONBLE COURT IN MSA