Rajasthan High Court

Ocean Seven Buildtech Pvt. Ltd vs M/S Pacific Sprits Pvt. Ltd. ... on 3 February, 2023

Bench: Mahendar Kumar Goyal

[2023/RJJP/001618]

        HIGH COURT OF JUDICATURE FOR RAJASTHAN
                    BENCH AT JAIPUR

                  S.B. Civil Writ Petition No. 16139/2019

Ocean Seven Buildtech Pvt. Ltd., Through Yogesh Kumar S/o J.S.
Yadav R/o C-158, Jalvayu Vihar, Sector-30, Gurgaon (Haryana)
Through Authorised Representative - Manoranjan Pal
                                                             ----Petitioner-Plaintiff
                                       Versus
1.       M/s Pacific Sprits Pvt. Ltd., Through Director Sh,. Mukesh
         Kumar Jindal S/o Shri R.s. Jindal, R/o N-127 First Floor,
         G.k. Part-I, (Greater Kailash), New Delhi, Alternate R/o
         Near 111 Km Stone, Ayur Harbal Factory, National
         Highway No. 8, Shanjhapur, Tehisl Behroad, District Alwar,
         Present Address C-144, 3Rd Floor, Lajpat Nagar-I, New
         Delhi.
2.       Smt Preeti Jindal W/o Sh,. Mukesh Kumar Jindal, R/o N-
         127 First Floor, G.k. Part-I, (Greater Kailash), New Delhi,
         Alternate R/o Near 111 Km Stone, Ayur Harbal Factory,
         National Highway No. 8, Shanjhapur, Tehisl Behroad,
         District Alwar, Present Address C-144, 3Rd Floor, Lajpat
         Nagar-I, New Delhi.
3.       Sanjay       Jain    S/o       R.c.      Jain,      Through    Authorised
         Representative R/o D-80, Sector-36, Noida (U.p.) And 10
         North       Highway,     D.l.f.    Farms,        Chatrpura,    New    Delhi
         Alternate Near 111 Km Stone, Near Ayur Harbal Factory,
         National Highway No. 8, Shanjhapur, Tehisl Behroad,
         District Alwar, Present Address 10 North Drive, Dlf Forms
         Chatterpur, New Delhi-110030
4.       Sub-Registrar, Neemrana Tehsil Behroad, District Alwar
         (Raj.)
                                                   ----Respondents-Defendants

For Petitioner(s) : Mr. Gaurav Sharma Saraswat For Respondent(s) : Mr. Siddharth Bapna

HON'BLE MR. JUSTICE MAHENDAR KUMAR GOYAL

Order

03/02/2023

[2023/RJJP/001618] (2 of 9) [CW-16139/2019]

Although, the matter comes up on an application filed by the

respondents No.1 & 3/defendants No.1 & 3 seeking vacation of ex

parte interim order dated 17.10.2019; but, on the request of

learned counsels for the respective parties, the writ petition is

heard on its merit at this stage.

This writ petition under Article 227 of the Constitution of

India assails the legality and validity of the order dated

10.07.2019 passed by the learned Commercial Court No.2, Jaipur

Metropolitan, Jaipur in Civil Suit No.24/2019 whereby, the

application filed by the respondents No.1 to 3/defendants No.1 to

3 to take the written statement on record, has been allowed qua

the respondents No.1 & 3/defendants No.1 & 3 as ex parte

proceeding was already drawn against the respondent

No.2/defendant No.2.

The relevant facts in brief are that the petitioner/plaintiff (for

brevity "the petitioner") filed a suit against the respondents No.1

to 4 for recovery of money in the Court of learned Additional

District Judge No.1, Behror, Alwar (hereinafter referred to as "the

learned ADJ") wherein, right of the respondents No.1 & 3 to file

written statement was closed vide order dated 16.10.2017. On

24.01.2018, the respondents No.1 to 3 filed an application along

with written statement praying therein for taking the same on

record. Before the application could be decided, the matter stood

transferred to the learned Commercial Court No.2, Jaipur

Metropolitan, Jaipur (hereinafter referred to as "the learned trial

Court") under Section 15 (2) of the Commercial Courts Act, 2015

(for short "the Act of 2015). The application filed by the

respondents No.1 to 3 for taking the written statement on record,

[2023/RJJP/001618] (3 of 9) [CW-16139/2019]

has been allowed by the learned trial Court vide its order dated

10.07.2019 qua the respondents No.1 & 3 subject to a cost of

₹25,000/-, the subject-matter of challenge.

Assailing the order, learned counsel for the petitioner submits

that the learned trial Court erred in allowing the application

inasmuch as the written statement was filed beyond the

permissible limit of 90/120 days. Relying upon a Division Bench

judgment of the Hon'ble Andhra Pradesh High Court dated

25.01.2022 in case of Amoda Iron Steel Limited versus Sneha

Anlytics and Scientifics: Civil Revision Petition

No.1261/2020, learned counsel submits that the Commercial

Court did not have jurisdiction to extend the time once granted to

file the written statement under Section 15 (4) of the Act of 2015.

He, therefore, prays that the writ petition be allowed, the order

dated 10.07.2019 be quashed and set aside and the application

filed by the respondents be dismissed.

Per contra, learned counsel for the respondents would submit

that the provisions of the Act of 2015 were inapplicable in the

present case inasmuch they had already filed written statement

alongwith the application dated 24.01.2018; but, before the

application could be decided, the case stood transferred to the

learned Commercial Court on 12.11.2018. He submits that the

learned trial Court has allowed the application filed by them in the

interest of justice subject to payment of cost of ₹25,000/- which

they have already paid and hence, no interference by this Court

under its supervisory jurisdiction is warranted. He, therefore,

prays that the writ petition be dismissed. He, in support of his

submissions, relies upon a Division Bench judgment of the Hon'ble

[2023/RJJP/001618] (4 of 9) [CW-16139/2019]

Bombay High Court dated 28.01.2021 in case of Reliance

General Insurance Co. Ltd. versus Colonial Life Insurance

Company (Trinidad) Ltd. & Ors.: MANU/MH/3745/2021.

Heard. Considered.

The suit came to be filed in the Court learned ADJ by the

petitioner wherein, right of the respondents to file written

statement was closed having not been filed within the stipulated

period. However, they filed an application dated 24.01.2018

alongwith the written statement praying therein to take the same

on record; but, before the same could be considered and decided,

the case was transferred to the learned Commercial Court under

Section 15(2) of the Act of 2015.

Section 15(3) of the Act of 2015 provides as under:-

"15. Transfer of pending cases.-

(1) xxxxxxxxx (2) xxxxxxxxx (3) Where any suit or application, including an application under the Arbitration and Conciliation Act, 1996 (26 of 1996), relating to a commercial dispute of Specified Value shall stand transferred to the Commercial Division or Commercial Court under sub-

section (1) or sub-section (2), the provisions of this Act shall apply to those procedures that were not complete at the time of transfer."

Provisions of sub-Section (3) makes it clear that in the

transferred cases, the provisions of the Act of 2015 shall apply to

those procedures which were not completed at the time of

transfer. The Civil Court, i.e., learned ADJ, under the provisions of

[2023/RJJP/001618] (5 of 9) [CW-16139/2019]

Code of Civil Procedure could have taken the written statement

filed by the respondents on record even after its closure as the

provisions of Order V Rule 1 CPC and/or provisions of Order VIII

Rules 1 & 10 CPC laying down the time limit for filing of the

written statement are directory in nature only and not mandatory

as held by the Hon'ble Supreme Court of India in a catena of cases

(Reference may be made to Kailash versus Nanhku & Ors.:

(2005) 4 SCC 480). Since, the application by the respondents for

taking the written statement was pending when the case was

transferred, it cannot be held that procedure for filing the written

statement was complete by that time.

Here, it would be profitable to refer to the relevant provisions

of Section 15 (4) which lay down as under:-

"15. Transfer of pending cases.- (1) xxxxxxxxx (2) xxxxxxxxx (3) xxxxxxxxx (4) The Commercial Division or Commercial Court, as the case may be, may hold case management hearings in respect of such transferred suit or application in order to prescribe new timelines or issue such further directions as may be necessary for a speedy and efficacious disposal of such suit

or application in accordance 1[with Order XV-A] of the Code of Civil Procedure, 1908 (5 of 1908):

Provided that the proviso to sub-rule (1) of Rule 1 of Order V of the Code of Civil Procedure, 1908 (5 of 1908) shall not apply to such transferred suit or application and the court may, in its discretion, prescribe a

[2023/RJJP/001618] (6 of 9) [CW-16139/2019]

new time period within which the written statement shall be filed."

In view of the proviso to sub-Section 4, the Commercial

Court has jurisdiction to prescribe the new time period within

which the written statement can be filed beyond the limitation

prescribed under the CPC. In view thereof, in the considered

opinion of this Court, the learned trial Court did not err in allowing

the application filed by the respondents for taking the written

statement on record which otherwise also is in the interest of

substantial justice.

A Division Bench of Hon'ble Bombay High Court has, in case

of Reliance General Insurance Co. Ltd. (supra) wherein, the

defendant No.1 in a transferred commercial suit failed to file reply

within the prescribed period of 120 days from the date of original

order, after interpreting the provisions of the Act of 2015, held as

under:-

"14. The learned single Judge has accordingly correctly interpreted the law and came to a correct conclusion that the mandatory timeline of 120 days for filing of a written statement in a commercial suit is not applicable to suits originally filed as ordinary suits, and which have been transferred as commercial suits to be heard by the commercial division of this Court, under Section 15(1) of the Commercial Courts Act."

The present case is on much better footing inasmuch as

herein, the respondents had already filed the written statement in

the Court of learned ADJ alongwith an application to take the

same on record much before it stood transferred to the learned

Commercial Court.

[2023/RJJP/001618] (7 of 9) [CW-16139/2019]

The judgment relied upon by the learned counsel for the

petitioner in case of Amoda Iron Steel Limited (supra) is of no

assistance to him. In that case, before the suit stood transferred

to the Commercial Court under Section 15(2), the

petitioner/defendant had filed an application under Section 148

read with Section 151 CPC seeking extension of time for filing of

the written statement which came to be dismissed in default by

the learned Commercial Court after it was transferred to it and an

application for its restoration was also dismissed. Allowing the

revision petition filed by the defendant against the rejection of his

application for restoration of the application filed under Section

148 read with Section 151 CPC, Hon'ble Andhra Pradesh High

Court held as under:-

"61. We are therefore of the considered view and hold on point No. 1 as under:-

1) where the suit or application has been transferred to the Commercial Court under Section 15 (2) of the Act, 2015 from the civil court and the procedure for filing written statement had not been completed at the time of transfer, the commercial court shall have the power and jurisdiction to prescribe a new time period for filing written statement, irrespective of the expiry of 120 days from the date of service of summons on the concerned defendant.

2) In a suit or application transferred to the commercial court under Section 15(2) of the Act, 2015, the written statement shall be filed within the new time period prescribed by the Commercial Court in exercise of power under Section 15(4) of the Act, 2015, failing which, on expiry of

[2023/RJJP/001618] (8 of 9) [CW-16139/2019]

new time line so prescribed, the defendant shall forfeit his right to file written statement and the court shall neither take the written statement on record nor shall extend the new prescribed time period as mandated by Order VIII rules 1 and 10 CPC.

62. The above view would make both the provisions Section 15(4) proviso and Order VIII rules 1 and 10 workable to the best possible extent and shall also advance the object with which the Act, 2015 has been enacted considering the legislative intent.

63. In view of the aforesaid, the submission of the learned counsel for the respondent that Section 148 CPC does not apply to the commercial court, even if accepted, the Commercial Court shall have power to provide a new time period for filing written statement under Section 15(4) of the Act, 2015 itself, independent of Section 148 CPC.

64. In view of the aforesaid the submission of the counsel for the petitioner that the period of 120 days under Order VIII rule 1, shall be counted from the date of transfer of the suit under Section 15(2), does not appeal us.