Madhya Pradesh High Court
Shravan Kumar Patel vs M/S Mohanlal Hargovinddas A ... on 15 May, 2024
Author: Sheel Nagu
Bench: Sheel Nagu, Amar Nath Kesharwani
IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
HON'BLE SHRI JUSTICE SHEEL NAGU
&
HON'BLE SHRI JUSTICE AMAR NATH KESHARWANI
MISC. PETITION NO.4758 of 2023
BETWEEN :-
SHRAVAN KUMAR PATEL S/O LATE
SHRI PARMANAND BHAI PATEL,
AGED ABOUT 77 YEARS, R/O 933,
GOLE BAZAR, JABALPUR,
OCCUPATION : PARTNER IN M/S
MOHANLAL HARGOVINDDAS.
A PARTNERSHIP FIRM REGISTERED
UNDER THE PROVISIONS OF THE
INDIAN PARTNERSHIP ACT WITH
THE REGISTRAR OF FIRMS AND
SOCIETIES, JABALPUR, HAVING
OFFICE AT M/S MOHANLAL
HARGOVINDDAS, GOLE BAZAR,
JABALPUR (M.P.)
.....PETITIONER
(BY SHRI SIDDHARTH GULATEE - ADVOCATE)
AND
1. M/S MOHANLAL HARGOVINDDAS,
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A PARTNERSHIP FIRM REGISTERED
UNDER THE PROVISIONS OF THE
INDIAN PARTNERSHIP ACT WITH
THE REGISTRAR OF FIRMS AND
SOCIETIES, JABALPUR, THROUH
ITS MANAGER HAVING OFFICE AT
M/S MOHANLAL HARGOVINDDAS,
903 GOLE BAZAR, JABALPUR (M.P.)
2. SIDDHARTH PATEL S/O LATE SHRI
PARMANAND BHAI PATEL,
PARTNER IN M/S MOHANLAL
HARGOVINDDAS, R/O 933, GOLE
BAZAR, JABALPUR (M.P.)
3. SMT. NEENA VINAYBHAI PATEL W/O
DR. VINAYBHAI PATEL, PARTNER IN
M/S MOHANLAL HARGOVINDDAS,
R/O "31 VALENTINA" GAMADIYA
ROAD, OFF PEDDER ROAD, MUMBAI
(MAHARASHTRA)
4. SMT. (DR.) SONAL KIRANBHAI AMIN
W/O SHRI KIRANBHAI AMIN,
PARTNER IN M/S MOHANLAL
HARGOVINDDAS, R/O "KINAL", 4/11
UNIVERSITY ROAD, PACHPEDI,
JABALPUR (M.P.)
5. MS. ROOPA PATEL D/O LATE SHRI
PARMANAND BHAI PATEL,
PARTNER IN MS/ MOHANLAL
HARGOVINDDAS, R/O "30 SHREYAS"
5TH FLOOR, OPPOSITE NARIMAN
POINT, 20 BR, MUMBAI,
(MAHARASHTRA)
- 3 -
6. MOHANLAL HARGOVINDDAS BIDI
UDYOG PVT. LIMITED,
A COMPANY INCORPORATED
UNDER THE PROVISIONS OF THE
COMPANIES ACT, HAVING ITS
REGISTERED OFFICE AT 903, GOLE
BAZAR, MH HOUSE, GOLE BAZAR,
JABALPUR. A PARTNER IN M/S
MOHANLAL HARGOVINDDAS.
....RESPONDENTS
(BY RESPONDENT NO.1- SHRI BHANU
PRATAP SINGH- ADVOCATE, BY RESPONDENT NO.2
- SHRI DEVENDRA CHOUHAN, SHRI B.D. SINGH &
SHRI AZAD KRISHNA BAIS- ADVOCATES, BY
RESPONDENT NO.3 - SHRI KUNAL VAJANI & SHRI
DEVASHISH SAKALKAR - ADVOCATES BY
RESPONDENT NO.5- SHRI AMAN GUPTA-
ADVOCATE AND BY RESPONDENT NO.6- SHRI
GAGAN SANGHI - ADVOCATE)
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Reserved on : 25/04/2024
Pronounced on : 15/05/2024
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This petition having been heard and reserved for orders,
coming on for pronouncement this day, Hon'ble Shri Justice Sheel
Nagu pronounced the following:
ORDER
1. Supervisory jurisdiction of this Court under Article 227 of the
Constitution of India is invoked to assail interlocutory order passed by
XXIVth District Judge, Commercial Court, Jabalpur on 19.07.2023 in
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Commercial Suit No.156/2022 whereby, the right of petitioner/
plaintiff to adduce evidence has been closed on the ground of failure
of petitioner/plaintiff to avail various last opportunities to adduce
evidence afforded earlier.
2. While taking cognizance of this matter, this Court by an order
passed on 29.08.2023 stayed the Commercial Suit No.156/2022. The
said interim order continues to subsist till date. Accordingly, urgency
arises and therefore, this matter has been finally heard in motion to be
decided in following terms:-
2.1 Preliminary objection has been raised by respondents herein
primarily contending that though this petition is maintainable under
Article 227 of Constitution since constitutional remedy of supervisory
jurisdiction cannot be blocked by any statutory bar or otherwise, but
the nature of dispute raised herein does not call for interference within
the limited and restricted supervisory power under Article 227 of
Constitution of India.
2.2 Learned counsel for respondents rely upon judgments rendered
in Beyond Malls LLP Vs. Lifestyle International Pvt. Ltd., [2021 (1)
MPLJ 337 Para 13], Jagir Singh vs. Ranbir Singh and another
[(1979) 1 SCC 560 Para 6], Garment Craft Vs. Prakash Chand
Goel, [2022 (4) SCC 181 Para 15], Ouseph Mathai and others vs.
M. Abdul Khadir [(2002) 1 SCC 319 Para 4], Shivaji Laxman
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Palaskar and others vs. Kamal Raosaheb Shipalkar and others
passed in W.P. No.12117/2018 decided on 01.11.2018 [High Court of
Bombay, Aurangabad Bench] and State Through Special Cell, New
Delhi vs. Navjot Sandhu Alias Afshan Guru and others [(2003) 6
SCC 641 Para 19 and 28] inter alia in support of the aforesaid
objection.
3. Per contra, learned counsel for petitioner/plaintiff has opposed
the preliminary objection of the respondents by relying upon Mahant
Ram Das vs. Ganga Das [AIR 1961 SC 882] & Shrinivas Sharma
vs. Shiv Kumar Sharma and others [(2011) SCC OnLine MP 2176
Para 11 to16] and contending that once defendant Nos.2, 6 & 7
amended their written statements for hearing immediately prior to
passing of the impugned order, petitioner/plaintiff ought to have been
afforded further opportunity to rebut the amendment and to this
extent, the Commercial Court failed to exercise its jurisdiction
thereby, rendering its impugned order amenable to supervisory
jurisdiction of this Court under Art. 227 of Constitution.
4. The Commercial Court Act, 2015 (for brevity "Act of 2015")
came into force on 23.10.2015 and was enacted to inter alia achieve
following objects :-
(i) Since high value commercial disputes involve complex
questions of fact and law, prolonged pendency of which
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decelerates the economic growth and tarnish the Indian
judiciary and diminishes faith of investors, an independent
mechanism for early resolution of such disputes is need of
the hour.
(ii) Expeditious disposal of such commercial disputes.
4.1 For achieving the aforesaid objects, the special act i.e. the
Commercial Courts Act, 2015 incorporated provisions which indicate
towards the legislative intent behind enactment of Act of 2015 which
are as follows :-
(a) The extensive definition of expression "commercial
disputes" u/S 2(c) of the Act of 2015.
(b) Constitution of Commercial Courts at District,
Appellate and Divisional level.
(c) Section 8 of the Act of 2015 bars revision against an
interlocutory order passed by Commercial Courts which is
indicative of legislative intent to shorten the time span
consumed by a commercial dispute.
(d) Section 12(3) of the Act of 2015 bars an appeal or
civil revision against an order of Commercial Court
determining its own jurisdiction.
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(e) Section 12A inserted w.e.f. 03.05.2018 in the Act of
2015 makes pre-institution mediation and settlement
mandatory for every commercial dispute baring the suits
where urgent interim relief is sought.
(f) Section 14 obliges the Appellate Court under the Act
of 2015 to endeavour to dispose of appeals within a period
of six months.
(g) Section 16 by way of Schedule appended to the Act
of 2015 amends the procedure prescribed in Civil
Procedure Code,1908 by making it more stringent and time
bound.
(h) Section 21 bestows overriding effect upon the Act of
2015 over any other law or instrument.
5. On the anvil of the object sought to be achieved and the
means prescribed for achieving the same, the attending factual
scenario is to be tested especially in regard to the scope of
interference under Art. 227 of Constitution.
5.1 The undisputed facts are that the suit was instituted in the
year 2012.
5.2 After filing of written statement by the defendants, the
Commercial Court framed issues on 24.06.2014.
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5.3 Plaintiff/petitioner was given various last opportunities for
adducing evidence but for one reason or the other, same could not
happen.
5.4 Ultimately the suit in question came to be listed on
06.07.2023 when two applications; one under Order 40 Rule 1
CPC for appointment of Receiver filed by defendant No.2 and
similar application under Order 6 Rule 17 CPC filed by
defendant No.7 and third application under Order 8 Rule 1A(3)
CPC filed by defendant No.7 were taken up and considered.
5.5 On 06.07.2023 itself, the application under Order 40 Rule 1
CPC for appointment of Receiver preferred by defendant No.2
was rejected on merits. However, other three applications, two
for amending the written statement and the third under Order 8
Rule 1A(3) CPC for taking the documents on record in support of
written statement of defendant No.7 were allowed, permitting
defendant No.2 and defendant No.7 to amend their respective
written statements.
5.6 However, before concluding the order dated 06.07.2023,
the Commercial Court in the backdrop of six opportunities
having been afforded to the plaintiff to adduce evidence (on
23.08.2016, 14.08.2018, 23.01.2023, 14.02.2023, 17.03.2023 and
24.05.2023) directed that last opportunity is afforded to plaintiff
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to adduce evidence failing which his right to adduce evidence
shall stand forfeited.
5.7 The suit was thereafter listed on 19.07.2023. On this day
again, the plaintiff failed to adduce evidence in support of the
plaint. The Commercial Court in the backdrop of peremptory
order passed earlier on 06.07.2023, forfeited the right of plaintiff
to adduce evidence. While passing the impugned order, the
Commercial Court afforded opportunity to the defendants to
respond to the application moved by the plaintiff under Order 18
Rule 1A(3) CPC (this application was subsequently withdrawn
by the plaintiff).
6. In the aforesaid factual backdrop, it requires adjudication as
to whether the trial Court while passing the impugned order
exceeded the jurisdiction vested in it or failed to exercise the
jurisdiction or wrongly exercised the jurisdiction.
6.1 After due consideration, this Court is of the considered
view that looking to the nature of dispute, attending factual
scenario and the constraints under Art. 227 of Constitution, no
relief is due to the petitioner for the reasons infra:-
(i) The Commercial Court which is obliged under the Act of
2015 to decide the suit expeditiously, was faced with a
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situation where the suit instituted in the year 2012 was
pending since last more than 10 years.
(ii) The Commercial Court was further faced with compelling
situation where despite grant of more than six opportunities
to the plaintiff including three last opportunities, plaintiff
had failed to adduce evidence.
(iii) The Commercial Court concerned was obliged under the
law to decide the suit in question within the restricted
procedural provisions of C.P.C. in terms of Section 16 of
the Act of 2015. Thus, the Commercial Court was
functioning under the constraints of time line for
completion of each stage in the suit under C.P.C.
circumscribed and abridged by the Commercial Court Act.
(iv) The application for amendment and taking documents on
record preferred by the defendants, which were allowed on
06.07.2023, were mere elaboration of the pleadings
contained in the respective written statements and thus
plaintiff has no reason to plead prejudice for non-grant of
opportunities to rebut the said additional pleadings.
(v) The supervisory power under Art. 227 of Constitution
which is invoked by the petitioner/plaintiff to assail the
impugned order has to be exercised with great care and
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caution. This power is merely to ensure that Courts under
territorial jurisdiction of High Court function within their
jurisdictional purview. Further this power is not akin to the
appellate power of High Court. High Court under Art. 227
of Constitution cannot enter into factual disputes unless
such disputes arise from palpably perversity demonstrating
lacking of jurisdiction. Unless and until it is shown that the
Civil Court has passed an order which it could not have
been passed in law, no interference under Art. 227 of
Constitution is called for. An order passed by the Civil
Court may not be the most appropriate decision in the
attending facts and circumstances. However, if the view
taken by the Civil Court is one which could have been
taken in the attending facts and circumstances of the case,
then merely because another view is possible, cannot be a
good ground to interfere in the limited and restricted
supervisory jurisdiction under Art. 227 of Constitution.
[See: Shalini Shyam Shetty & Anr. Vs. Rajendra Shankar
Patil, 2010 (8) SCC 329 and Radhey Shyam Vs. Chhabi
Nath, 2015 (5) SCC 423].
(vi) The facts attending the present case reveal that the
Commercial Court was dealing with the suit which was
more than 12 years old and where the plaintiff despite grant
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of various last opportunities had failed to adduce evidence
despite the issues having been framed way back on
24.06.2014. In the backdrop of Commercial Court Act
mandating the Commercial Courts to expeditiously decide
commercial disputes, the impugned order is in accordance
with law especially in the attending compelling facts and
circumstances created by procrastination on the part of
plaintiff/petitioner.
(vii)Thus the view taken by the Commercial Court by passing
impugned order could very well have been taken in the
available facts and circumstances and, therefore, merely
because another view is possible, this Court cannot
interfere in the limited jurisdictional purview under Art.
227 of Constitution.
(viii) Interference in the impugned order in the given facts and
circumstances shall amount to grant of premium to
repeated defaults committed by petitioner/plaintiff.
(ix) In normal circumstances, amendment in written statement
should lead to consequential allowing of amendment in the
plaint. However, the facts situation herein is different. The
amendment to the written statement is nothing but mere
elaboration and expansion of the pleadings already existing
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in their written statement. Thus, the amendment to WS
may not afford a right upon the plaintiff to seek
consequential amendment of plaint.
7. In the conspectus of above, no case for interference is made
out and the present petition under Art. 227 of Constitution stands
dismissed. Interim order passed earlier on 29.08.2023 stands
vacated.
8. Registry is directed to inform the trial Court about passing
of this order.
(SHEEL NAGU) (AMAR NATH (KESHARWANI))
JUDGE JUDGE
YS/Biswal
Date: 2024.05.15 14:52:13 +05'30'
