Madras High Court
Straight Line Cinemas vs Dream Warrior Pictures on 10 January, 2022
OSA (CAD) Nos.167 and 168 of 2021
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 10.01.2022
CORAM :
THE HON'BLE MR.MUNISHWAR NATH BHANDARI,
ACTING CHIEF JUSTICE
AND
THE HON'BLE MR.JUSTICE P.D.AUDIKESAVALU
OSA (CAD) Nos.167 & 168 of 2021
Straight line Cinemas
Rep, by its Propreitor Mr.Sudhir V.K
Krishna Bhat tower
Pullepady Road
Ernakulam - 682 035. .. Appellant in both OSAs
Vs.
Dream Warrior Pictures
Rep. by its Partner Mr.S.R.Prabhu
No.17/8, flat No.1, Ganapathi Apartments
Krishna Street, T.Nagar Respondent in both
Chennai -600 017. .. OSAs
Prayer in OSA (CAD) No.167 of 2021: Appeal filed under Section
13(1) of the Commercial Courts Act, 2015 read with Clause 15 of the
amended Letters Patent Act, 1865, against the order dated
13.07.2021 in C.S. (Comm. Div.) No.310 of 2020.
Prayer in OSA (CAD) No.168 of 2021: Appeal filed under Section
13(1) of the Commercial Courts Act, 2015 read with Clause 15 of the
amended Letters Patent Act, 1865, against the order dated
01.10.2021 in C.S. (Comm. Div.) No.310 of 2020.
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OSA (CAD) Nos.167 and 168 of 2021
For the Appellant in
both OSAs : Mr.S.Sivaraman
For the Respondent in
both OSAs : Mr.S.S.Swaminathan
JUDGMENT
(Judgment of the Court was delivered by
the Hon'ble Acting Chief Justice)
By these appeals, challenges are made to the order dated
13.07.2021 holding that the appellant-defendant has lost its rights
to file the written statement and the judgment dated 01.10.2021
decreeing the suit filed by the plaintiff-non-appellant respectively.
2. Learned counsel for the appellant submits that after service
of notice in the suit, the appellant-defendant entered appearance
through counsel. However, the written statement could not be filed
due to the situation obtaining at the relevant time. Ignoring the
aforesaid, the right of the appellant-defendant to file the written
statement was closed by the order dated 13.07.2021 and therefore,
the order has been challenged herein.
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OSA (CAD) Nos.167 and 168 of 2021
3. Subsequently, a final order was passed on 01.10.2021
without the written statement of the appellant-defendant. The said
order has been challenged contending that the Apex Court in the
similar circumstances, by order dated 04.01.2021, dismissed the
appeal filed against the order of the High Court extending the
period of limitation to submit the written statement.
4. The order dated 13.07.2021 whereby the right to file the
written statement by the appellant was closed by the learned Single
Judge and the final order dated 01.10.2021 passed thereafter, have
been assailed in separate appeals. Therefore, both the appeals are
taken up by us for hearing together.
5. A perusal of the order dated 13.07.2021 would disclose
closure of rights to file the written statement was mainly on the
ground of limitation to file the written statement.
6. Learned counsel for the appellant submits that the plaint
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OSA (CAD) Nos.167 and 168 of 2021
was filed in the year 2020 and the appellant-defendant put in
appearance through the counsel on 23.11.2020. The right to file the
written statement was closed on 13.07.2021 itself. The Apex Court,
in a similar matter in Centaur Pharmaceuticals Pvt. Ltd. v.
Stanford Laboratories Pvt. Ltd. [SLP No.17298 of 2021 dated
04.01.2021], did not interfere with the order passed by the High
Court extending the limitation for filing written statement. In view
of the above, the order dated 13.07.2021, closing the right of the
appellant-defendant to file the written statement is to be set aside
and also the final order dated 01.10.2021 with a direction to the
learned Single Judge to decide the suit afresh after considering the
written statement.
7. The appeals have been contested by learned counsel for
the non-appellant-plaintiff. It is mainly on the ground that when the
period of limitation has been provided for filing the written
statement, it could not have been extended by the learned Single
Judge hearing the plaint and thus, the right to file the written
statement was rightly closed by the order dated 13.07.2021 and the
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OSA (CAD) Nos.167 and 168 of 2021
final order was also passed on 01.10.2021 after considering the
evidence. In view of the above, even the final order dated
01.10.2021 may not be interfered with.
8. We have considered the rival submissions of the parties and
perused the materials placed on record.
9. We find that the suit has been preferred in the year 2020
and the right to file the written statement was closed by the order
dated 13.07.2021 on the ground that the limitation for filing the
written statement has expired, ignoring the fact that the period for
filing can be extended. It is not only that the Apex Court in the case
of Centaur Pharmaceuticals Pvt. Ltd. supra has refused to
interfere with the order passed by the High Court in extending the
period of limitation of filing of the written statement, but even in
catena of detailed judgments, the Apex Court interpreted the
provision of Civil Procedure Code holding period of limitation for
written statement to be not mandatory in nature, but only directory.
The Court hearing the plaint can extend the period of limitation on
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OSA (CAD) Nos.167 and 168 of 2021
justified reasons.
10. In the instant case, the period relevant to the case is
between November 2020 and July 2021. It is known that lockdown
was imposed in March 2020 and the period subsequent to it was
excluded by the Court for all purposes, which includes limitation.
The aforesaid shows one part to justify the extension of limitation
and otherwise, we find that the written statement cannot be closed
on the ground of limitation alone. Rather, in appropriate cases, the
limitation can be extended. It would, however, not be that in all
cases, extension should be granted. Rather, if no justification is
given, the Court can refuse to extend the period of filing the written
statement. In the case, we find that the period intervening after the
filing of suit remain under the Covid-19 pandemic, which was not
only started from March 2020, but also subsequently due to the
second surge of Covid-19.
11. Taking the aforesaid into consideration, we find reasons to
set aside the order dated 13.07.2021 closing the right of the
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OSA (CAD) Nos.167 and 168 of 2021
appellant-defendant to file the written statement and accordingly,
the appeal challenging the aforesaid order is allowed, with a
direction to the appellant-defendant to file the written statement
within a period of two weeks from today.
12. As we have set aside the order dated 13.07.2021 with the
direction to file the written statement within the period given above,
the final order dated 01.10.2021 passed without the written
statement is also liable to be set aside. Accordingly, the final order
dated 01.10.2021 is also set aside. It is made clear that if the
written statement is not filed within the period of two weeks from
today, the right to file the written statement would be closed and
the learned Single Judge may proceed further from the aforesaid
stage.
13. Since we have set aside the final order dated 01.10.2021
and permitted the appellant-defendant to file the written statement,
the matter would now proceed further from the stage of filing of the
written statement and accordingly, whatever position was obtaining
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OSA (CAD) Nos.167 and 168 of 2021
at the stage of filing of the written statement, the same would
operate now.
14. OSA (CAD) Nos.167 and 168 of 2021 are allowed with the
above directions. There will be no order as to costs. Consequently,
CMP Nos.21717 and 21724 of 2021 are closed.
(M.N.B., ACJ.) (P.D.A., J.)
10.01.2022
Index : Yes/No
kpl/drm
To:
The Sub Assistant Registrar
Original Side
High Court, Madras
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OSA (CAD) Nos.167 and 168 of 2021
M.N.BHANDARI, ACJ
AND
P.D.AUDIKESAVALU,J.
(kpl/drm)
OSA (CAD) Nos.167 & 168 of 2021
10.01.2022
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