Case BriefsHigh Courts

Bombay High Court: S.J. Kathawalla, J., addressed the review petition against its own Judgment passed in the case of Axis Bank Ltd. v. Mira Gehani2019 SCC OnLine Bom 358 and held that,

Amendments introduced to CPC by the Commercial Courts Act are only applicable to Commercial Disputes of a Specified Value and not Commercial Disputes not of a Specified Value such as the present suit.”

“Amendment to CPC mandating that a Written Statement in a Commercial Suit has to be filed within 120 days, will not apply to Commercial Disputes of a Specified Value.”

According to the petitioner, the Court in the judgment of Axis Bank Ltd. v. Mira Gehani2019 SCC OnLine Bom 358, did not decide a limited contention of the petitioner, viz. that the amendments introduced to the Code of Civil Procedure, 1908 by the Commercial Courts Act, 2015 are only applicable to a Commercial Dispute of a Specified Value and not commercial disputes not of a Specified Value.

Hence for the understanding of the issue, the question of law in the present case is:

“Whether amendments introduced to CPC by the Commercial Courts Act apply to Commercial Disputes not of a Specified Value but nonetheless heard by a Commercial Division in view of the proviso to Section 7 of the Commercial Courts Act?”

The legislative background, which leads to the enactment of the Commercial Courts Act, was briefly set out in order to adjudicate the above-stated question of law. The Sections which were concentrated upon for the understanding were as follows:

  • Section 4 of the Commercial Courts Act – Constitution of Commercial Division of High Court ; [Specified Value, as defined by the Commercial Courts Act, stood earlier at Rupees One Crore, However, the Commercial Courts Act came to be amended in 2018 by the Commercial Courts, Commercial Division and Commercial Appellate Division of High Courts (Amendment) Act, 2018. Amongst other amendments, the Specified Value stood reduced to Rs 3 lakhs as against the earlier Rs 1 Crore.]
  • Section 7 of the Commercial Courts Act – Jurisdiction of Commercial Division of High Courts; [Whilst Section 7 mandates that all suits and applications relating to commercial diputes of a Specified Value filed in a High Court having ordinary original civil jurisdiction shall be heard and disposed of by the Commercial Division of that High Court.]
  • Section 16 of the Commercial Courts Act – Amendments to the Code of Civil Procedure, 1908 in its application to commercial disputes; [Amongst other amendments introduced, an amendment was introduced mandating that a Written Statement in a Commercial Courts Act cannot be filed after 120 days from the service of a writ of summons. For the said cases relied on – SCG Contracts India (P) Ltd. v. K.S. Chamankar Infrastructure (P) Ltd. and Axis Bank Ltd. v. Mira Gehani2019 SCC OnLine Bom 358]

Petitioner’s Side

Advocate, Rashmin Khandekar, appeared for the Petitioner and submitted that, Section 16(1) of the Commercial Courts Act makes it clear that the provisions of CPC stood amended only in respect of Commercial Disputes of a Specified Value. He concluded his argument while stating that, the question of law be answered to exclude the applicability of CPC as amended by the Commercial Courts Act in respect of Commercial Disputes, not of a Specified Value and that the un-amended CPC be applicable to matters which pertain to Commercial Disputes but not of a Specified Value.

Plaintiff’s side

Advocate Nausher Kohli appeared for the plaintiff and put forth his argument that the amendments to CPC as introduced by the Commercial Courts Act apply only to ‘commercial disputes’ of a ‘Specified Value’and not merely ‘commercial disputes’ is a converse to the mandate, purpose and legislative intent behind the Commercial Courts Act. He further relied upon the Preamble, Section 4, Section 7, the marginal note/heading to Section 16 and Schedule to Commercial Courts Act.

Conclusion

The High Court on considering the arguments placed by Mr Khandekar and Kohli elaborated on its decision and held that,

Section 16 of the Commercial Courts Act begs the interpretation that the provisions of CPC shall, in their application to any suit in respect of a commercial dispute of a Specified Value, stand amended in the manner as specified in the Schedule to the Commercial Courts Act and that this Commercial Division, shall follow the provisions of the CPC as amended by the Commercial Courts Act, in the trial of a suit in respect of a commercial dispute of a Specified Value.

Therefore, after going through the cited judgments by the parties, the Court concluded its decision and stated that, literally interpreting Section 16, the interpretation that follows is that the amendments introduced by Section 16 apply only to the Commercial Disputes of a Specified Value and not Commercial Disputes, not of a Specified Value. This is the letter of law. Section 16, as it reads currently ought to be interpreted literally.

Thus, the question of law was decided as held by the High Court. [Bharat Bhogilal Patel v. Leitz Tooling Systems India (P) Ltd., 2019 SCC OnLine Bom 890, decided on 01-06-2019]


Bom HC | Commercial suits — Defendant cannot file written statement beyond the expiry of 120 days from service of summon — Law on Or. 8 R. 1 CPCreiterated and clarified; Axis Bank Ltd. v. Mira Gehani2019 SCC OnLine Bom 358, dated 27-2-2019]

Case BriefsHigh Courts

Delhi High Court: Chander Shekhar, J. dismissed a criminal revision petition filed against the order of the Additional Sessions Judge whereby he refused the petitioner’s application for supply of an advance copy of the questionnaire to enable him to file the written statement in terms of Section 313(5) CrPC.

An FIR was registered against the petitioner and other co-accused persons for offences punishable under the Penal Code and the Arms Act. The matter went to trial and prosecution evidence was closed. Thereafter, the petitioner made the application as aforesaid which was rejected. Aggrieved thereby, the petitioner filed the present revision.

Ritesh Bahri and Vipin Bansal, Advocates representing the petitioner contended that he was entitled to have an advanced copy of the questionnaire. Per contra, Ashish Dutta, APP appearing for the State supported the impugned order.

The High Court was of the view: “It is a settled law that the general rule is that, an accused must answer the questions under Section 313 of the CrPC by personally remaining present in the Court and it is only in exceptional circumstances that the general rule can be dispensed with.” It was noted: “The questions under Section 313 of the CrPC are confined to the evidence already on record, the copies whereof must have been available with the accused and his counsel by that time hence, there is no need for supplying the questionnaire in advance.” In such view of the matter, it was held that there was no infirmity in the impugned order and there was no merit in the present petition, which was accordingly dismissed. [Raja v. State (NCT of Delhi), 2019 SCC OnLine Del 8652, dated 14-05-2019]

Case BriefsHigh Courts

Delhi High Court: Vinod Goel, J. dismissed a petition impugning the order passed by Civil Judge whereby defendant’s application under Order 7 Rule 11 CPC.

The plaintiff filed a recovery suit against the defendant (petitioner) on account of selling them wooden furniture. The suit was instituted in Delhi as the plaintiff was carrying on his business of manufacturing and selling wooden items in Delhi. The defendant filed an application under Order 7 Rule 11 for rejection of plaint, on the ground that the contract between the parties was entered into at Udaipur. They pleaded that the cause of action accrued at Udaipur and therefore courts in Delhi had no jurisdiction to try the suit. However, their application was rejected by the Civil Judge. Aggrieved thereby, the defendants filed the present petition.

While holding that the petition was liable to be rejected, the High Court observed, “It is a well-settled principle of law that while deciding an application under Order 7 Rule 11 CPC, the averments made in the plaint are germane and plea taken by the defendant in the written statement would be wholly irrelevant at that stage”. Reliance was placed on Chhotaben v. Kirtibhai Jalkrushnabhai Thakkar, (2018) 6 SCC 422; Ramesh B. Desai v. Bipin Vadilal Mehta(2006) 5 SCC 638 and Salem Bhai v. State of Maharashtra, (2003) 1 SCC 557. It was noted that the plaintiff had averred in the plaint that the defendant approached him for supply wooden furniture at his office in Delhi. In reference to this, the Court stated, “pleadings of the respondent unambiguously indicate that a part of cause of action has accrued within the local limits of Delhi which certainly provides privilege to the respondent to file the suit in the Courts of Delhi.” It was further observed that determination of jurisdiction is a mixed question of law and facts, which can be adjudicated only after the parties adduce their evidence. In such view of the matter, the Court dismissed the petition. [Hansa Place Art Furnitures (P) Ltd. v. Dilip Kumar Sharma, 2019 SCC OnLine Del 7422, dated 25-02-2019]

Case BriefsHigh Courts

Bombay High Court at Goa: C.V. Bhadang, J., condoned a delay of 50 days in filing the written statement.

As per facts of the case, in the suit filed by the respondent, the petitioner was served the summons on 10-07-2017; and on 12-8-2017, he sought time to engage a government counsel, who was eventually appointed and put in an appearance on 05-09-2017 and sought the extension of time to file written statement. However, there was a delay of fifty days in filing the same. The petitioner filed an application for condonation of delay but it was dismissed by the trial court. Aggrieved thereby, the petitioner filed the present appeal.

Susan Linhares, Additional Government Advocate appeared for the petitioner. Whereas, the respondents were represented by R.G. Ramani, Advocate.

Relying on Kailash v. Nanhku, (2005) 4 SCC 480, the High Court observed, “It is now well settled that the period fixed under Rule 1 Order 8 CPC is directory in nature and in a given case where a party shows sufficient cause, the delay can be condoned.” It was noted that in the present case, a draft of the written statement was sent to the department concerned for its approval which resulted in a delay of 50 days in filing the written statement. On an overall view of the matter, the Court found that petitioner showed a sufficient cause. As such, the petitioner was allowed and the impugned order was set aside. [Govt. of Goa v. Shankar Prabhakar Dalvi, 2019 SCC OnLine Bom 443, dated 12-03-2019]

Case BriefsHigh Courts

Patna High Court: The Bench of Ashwani Kumar Singh, J. dismissed an application filed under Article 227 of the Constitution of India, praying for quashing of trial court’s order vide which petitioner’s (defendant before the trial court) application under Order 8 Rule 1A(3) of the Code of Civil Procedure, 1908 was rejected.

The Court noted that the aforesaid application had been filed praying to mark certified copies of Tirjiya Khatiyan of Khata no. 167 and Khatiyan of Khata No. 5 as exhibits. However, it was dismissed by the trial court on the ground that the documents sought to be exhibited by the petitioner were filed much after the settlement of issues and no permission to admit the same in evidence had been taken.

It was opined that under Order 8 Rule 1A(3) of the CPC, documents which have not been produced by the defendant along with the written statement, cannot be produced to the court later on without leave of the court. Subsequent production of the document can be done only if the court is satisfied with the grounds explained for non-production of the documents at the time of filing of the written statement.

In the instant case, there was no explanation as to why the proposed documents which the petitioners intended to be taken into evidence were not produced earlier. Therefore it was held that there was no illegality in the impugned order. [Dewanti Devi v. Radheshyam Tiwary, 2019 SCC OnLine Pat 28, Order dated 04-01-2019]

Case BriefsHigh Courts

Jammu and Kashmir High Court: A Bench of Sanjeev Kumar, J. dismissed a petition filed against the order of a Subordinate Civil Judge where the application of the petitioner seeking leave of the court to file additional pleas (replica) was cancelled.

The facts of the case are that a suit was filed by the petitioner for Permanent and Mandatory Injunction restraining the respondent from raising any construction illegally and unauthorizedly to the prejudice of the rights of the petitioner which was pending adjudication before the Subordinate Civil Judge. Respondent then filed his written statement in which he clearly refuted the contents of the plaint. The petitioner with a view to file additional pleading moved an application before the trial court for submitting additional pleadings (replica). The trial court did not find any substance in the application and rejected the same. The ground that was given for rejection was that the petitioner failed to demonstrate any new facts which had come in the written statement and which needed to be refuted or explained.

The Court held that no case was made out for the exercise of the power of superintendence of the Court vested by virtue of Section 104 of the J&K Constitution. The order fell in the realm of discretionary order and unless the discretion was demonstrated to have been exercised with material irregularity, and in ignorance of the settled legal principles it could not be made the subject matter of interference in supervisory jurisdiction. The Petition was thus dismissed. [Abdul Rashid Chalak v. State of J&K, 2018 SCC OnLine J&K 1039, decided on 24-12-2018]

Case BriefsHigh Courts

Bombay High Court: A Bench of M.S. Sonak, J. dismissed a petition and stated that there is no jurisdictional error in the impugned order of the family court which rejected the application for amendment of petitioner’s written statement.

In the present case, the crux of the issue was the challenge to family court’s rejection of the petitioner’s application for amendment of his written statement.

In regard to the contentions of the petitioner, Mr A.S. Tamhane submitted that the amendment is related to the permanent custody of the child and by incorporating some additional facts and grounds in the written statement, the fundamental character and nature of the written statement would not be changed. Further, he stated that, the amendment ought to have been allowed since the petitioner obtained custody of the minor son in May, 2018 and thereafter secured knowledge to back the amended pleadings. Family Court failed to exercise jurisdiction vested in it by refusing the amendment.

Petitioner seeks to amend written statement after the evidence of the parties stands concluded. Proviso to Order VI Rule 17 CPC: “Provides that no application for amendment shall be allowed after the trial has commenced, unless the Court comes to the conclusion that inspite of due diligence, party could not have raised the matter before the commencement of trial.” There is no explanation as to why leave is applied for almost one year after the conclusion of the evidence in the matter as well.

Thus, the Court stated that “there is no compliance whatsoever with the proviso Order VI Rule 17 CPC or the principles set out therein. Family Court had correctly held that the proposed amendment was not necessary for determining the real question of controversy between the parties and the purpose of seeking leave at the belated stage was only to protract the final decision in the case.

Therefore, there is no jurisdictional error in the impugned order and the petition was dismissed accordingly. [Vinod George v. Nita Vinod George, 2018 SCC OnLine Bom 7462, decided on 22-12-2018]

Case BriefsHigh Courts

Delhi High Court: A Single Judge Bench comprising of Jayant Nath, J. allowed an appeal filed against the previous order whereby the right of defendants to file written statement was closed as 120 days prescribed in CPC for filing a written statement had expired.

Ms Sudeepti, Advocate appearing for the defendants submitted that a written statement was filed within 120 days but there was a delay in re-filing the same. She relied on the order of the Joint Registrar where it was noted that a written statement was filed but returned under office objection.

The High Court took note of the admitted fact that defendants have filed a written statement. Reference was made to Indian Statistical Institute v. Associate Builders, (1978) 1 SCC 483 and it was observed to be a settled legal position that delay in re-filing has to be considered on a different footing. Contention put forward by N. Prabhakar and Dhruv Sharma, Advocates for plaintiffs that re-filing tantamount to fresh filing did not find favour with the Court. Accordingly, the appeal was allowed. The written statement was directed to be taken on record if re-filed within one week. [Narender Kumar Sharma v. Maharana Pratap Educational Centre, 2018 SCC OnLine Del 13146, dated 13-12-2018]

Case BriefsTribunals/Commissions/Regulatory Bodies

National Consumer Disputes Redressal Commission (NCDRC): A Division Bench comprising of R.K. Agarwal, J., M. Shreesha, Member, allowed an appeal filed against the order of the Chandigarh State Commission, whereby the commission held that a settlement had arrived between the parties.

The main issue that arose before the Commission was whether the State Commission was justified in passing an order on the basis of an alleged settlement between the parties.

The Commission observed that the alleged settlement between the parties was not available in writing. The respondents clearly stated that the settlement was not in writing but the counsel for respondent had contended before the State Commission about a settlement having been entered into between the parties and the State Commission thereafter proceeded on this premise. The Commission further observed that the counsel for respondents sought time to produce the written agreement setting out terms and conditions of settlement, however, no such agreement was produced.

The Commission held that in the absence of a written agreement the State Commission could not have passed an order which was based on the existence of the alleged settlement between the parties. The order of the State Commission was set aside and the appeal was allowed. [Sumit Kumar v. Silver City Housing and Infrastructure Ltd., 2018 SCC OnLine NCDRC 414, order dated 26-10-2018]

Case BriefsHigh Courts

Delhi High Court: A Single Judge Bench comprising of Jayant Nath, J. decreed a suit for permanent injunction by invoking the provisions of Order 8 Rule 10 CPC.

The plaintiff was involved in broadcasting activities such as news reporting, producing TV shows and other media content in various parts of the world. It was submitted that its first presence in India could be traced back to 1994 and through various media including a YouTube channel, under the name CBS, it had acquired distinctiveness in the Indian market. In March 2017, the plaintiff came in across defendant’s YouTube channel CBN NEWS which was identical to plaintiff’s trademark. A cease and desist notice was served on the defendant but to no avail. Hence, the present suit was filed.

Before the High Court, the parties requested that they would like to settle the matter through mediation but no settlement could be arrived at. It was pertinently noted that the defendant failed to file a written statement. The plaintiff filed an application under Order 8 Rule 10 CPC. The Court referred to its earlier decision which discussed the scope of Order 8 Rule 10 CPC in commercial suits particularly under the new Commercial Courts, Commercial Division and Commercial Appellate Division of the High Court Act, 2015. The rule had been inserted to expedite the process of justice. If the defendant fails to pursue his case or does so in a lackadaisical manner by not filing written statement, the Court should invoke provisions of Order 8 Rule 10 CPC and decree such cases. In the view of the Court, the instant was a suitable case to pass a decree in favour of plaintiff and against the defendant. Accordingly, a decree of permanent injunction as prayed for by the plaintiff was passed. [Christian Broadcasting Network Inc. v. CBN News (P) Ltd.,2018 SCC OnLine Del 11666, dated 30-08-2018]

Case BriefsHigh Courts

Jharkhand High Court: A Single Judge Bench of Shree Chandrashekhar, J., allowed a writ petition filed by the petitioner against the order of the trial judge, whereby his application for seeking extension for filing written statement beyond the statutory period was rejected.

The main issue that arose was whether the period of filing written statement can be extended beyond the time period which is prescribed under Order VIII Rule 1 of the Civil Procedure Code, 1908.

The Court observed that as per the judgment passed by the Supreme Court in the case of Rani Kusum v. Kanchan Devi, (2005) 6 SCC 705, the parties to a dispute are bound by the time frame provided under Order-VIII Rule 1 for filing written statement, however the Court is not bound by the same. The Court further cited the case of Kailash v. Nanhku, (2005) 4 SCC 480 and held that the provision under O.VIII R-1 is merely directory in nature and the Court can, in appropriate cases extend the time frame provided under this provision. It further held that the dispute revolved around a property admeasuring 22 acres and hence the petitioner had substantial interest in it. Further, the petitioner had provided sufficient reasons in his application seeking extension of time but without giving due consideration to those reasons, the trial court had rejected his application. The Court set aside the order of the trial judge and ordered that the written statement of the petitioner shall be taken on record. [Dukhi Mirdha v. Ramdas Mirdha,2018 SCC OnLine Jhar 1292, order dated 26-09-2018]

Case BriefsHigh Courts

Punjab and Haryana High Court: A Single Judge Bench comprising of Arun Palli, J. allowed the defendant to file the written statement (WS) in a civil suit even after the expiry of 90 days statutory period.

A civil suit was filed against the defendant on 08-09-2017. He caused his first appearance before the court on 29-11-2017 and the matter was adjourned to 08-01-2018 for filing of the written statement by the defendant. As no written statement was filed on that date, the matter was further adjourned to 19-02-2018. However, despite this last opportunity, the defendant failed to file written statement within the statutory time period of 90 days. Consequently, his defence was struck off. The defendant was in appeal against the said order.

The High Court noted that ex facie the defendant was granted two opportunities to file written statement after he caused the first appearance before the trial court. However, the Court was of the view that even if it was assumed that the defendant was remiss in pursuing his cause and failed to file written statement despite being given one last opportunity, yet the fact remained that if he was not granted one more opportunity, he shall suffer irreparable loss and injury. Giving due consideration to the said fact, the Court set aside the impugned order and allowed the defendant to file written statement on the next date of hearing already fixed by the trial court. It was also held that in case of default on part of the defendant in filing written statement even on that date, the defence will be deemed to be struck off. [Beant Singh v. Dilbagh Singh,2011 SCC OnLine P&H 15664: (2012) 3 RCR (Civil) 115 , decided on 01-06-2018]