Judicial Analysis Court Copy Headnote Facts Arguments Court observation

2022 Supreme(AP) 52

IN THE HIGH COURT OF ANDHRA PRADESH AT AMARAVATI
C. PRAVEEN KUMAR, RAVI NATH TILHARI, JJ.
Amoda Iron Steel Limited, represented by its Director Sri Thati Satish, S/o. Sri T. Yadagiri – Appellant
Versus
Sneha Anlytics and Scientifics, represented by Sole Proprietor V. Sridhar Babu, S/o. Subhas Chandra Bose – Respondent
Civil Revision Petition No.1261 of 2020
Decided on : 25-01-2022

Advocates:
Advocate Appeared:
For the Appellant : M/s. Bharadwaj Associates
For the Respondent: Sri E.V.V.S. Ravi Kumar

Point of Law: 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.

Headnote:
Civil Procedure code,1908 - Section 148 r/w Section 151 - Commercial Courts, Commercial Division and Commercial Appellate Division of High Courts Act, 2015 – Section 16 - Commercial Act, 2015 – Section 2(c) - Recovery of money - Seeking condonation of delay - Case as submitted by learned counsel for petitioner are that plaintiff/respondent filed O.S. for recovery of money against petitioner/defendant with subsequent interest @ 12% per annum till date of realization; for costs of the suit and for such other relief or reliefs as Court deems fit and proper in circumstances of case - Petitioner/defendant did not file his written statement in suit within the stipulated period - Later on, petitioner filed a petition under Section 148 r/w Section 151 of Civil Procedure Code, 1908 before the Principal District Court, seeking extension of time for 15 days for filing written statement- Whether Section 34(5) of the Arbitration and Conciliation Act, 1996, inserted by Amending Act 3 of 2016 is mandatory or directory.
Finding of the Court:
Consequences under Order VIII rule 1 and rule 10 CPC shall follow if written statement is not filed within time line prescribed by court under Section 15(4) even to the cases transferred under Section 15(2) - Specific provision is only with respect to time line and to that extent i.e 120 days, general provision is excluded – Court are therefore of considered view and hold on point No.1 - Where the suit or application has been transferred to the Commercial Court under Section 15 (2) of Act, 2015 from civil court and procedure for filing written statement had not been completed at time of transfer, commercial court shall have power and jurisdiction to prescribe a new time period for filing written statement, irrespective of the expiry of 120 days from date of service of summons on concerned defendant – Court further find that court below while considering I.A did not advert at all to cause shown by petitioner, seeking condonation of delay - Any finding on the cause shown being sufficient or not has not been recorded - Court below ought to have considered the cause shown by petitioner for condonation of delay as also the objection to said cause, if any, filed by opposite party and ought to have returned a specific finding and consequent upon such finding it ought to have decided I.A. - For all the aforesaid reasons, court allow the petition.
Result: Petition is allowed.

JUDGMENT :

RAVI NATH TILHARI, J.

1. Heard Sri Vedula Venkataramana, learned senior advocate assisted by Sri Harish Kumar Rasineni, learned advocate for the petitioner and Sri E.V.V.S. Ravi Kumar, learned counsel for the respondent.

2. As purely legal questions are raised and the basic facts for decision of this petition are not in dispute, with the consent of the parties counsels, the matter was heard finally and is being decided at the admission stage itself.

3. This petition under Article 227 of the Constitution of India has been filed challenging the order dated 12.11.2020, passed by the Special Judge for Trial and Disposal of Commercial Disputes, Visakhaptnam in I.A.No.31 of 2020 in I.A.No.32 of 2020 in C.O.S.No.11 of 2018.

4. The petitioner herein was defendant in C.O.S.No.11 of 2018 and the respondent herein was the plaintiff.

5. Briefly stated the facts of the case as submitted by the learned counsel for the petitioner are that the plaintiff/respondent filed O.S.No.11 of 2018 for recovery of money of Rs.1,33,99,080/- against the petitioner/defendant with subsequent interest @ 12% per annum till the date of realization; for costs of the suit and for such other relief or reliefs as the Court deems fit and proper in the circumstances of the case.

6. The petitioner/defendant did not file his written statement in the suit within the stipulated period. Later on, on 07.12.2018 the petitioner filed a petition under Section 148 r/w Section 151 of the Civil Procedure Code, 1908 (for short “the C.P.C”) i.e., I.A.No.2028 of 2018 in O.S.No.11 of 2018 before the Principal District Court, Visakhapatnam seeking extension of time for 15 days for filing the written statement. Pending I.A.No.2028 of 2018, on 02.01.2019, the petitioner filed the written statement. During the pendency of I.A.No.2028 of 2018, in view of the establishment of the Commercial Court, O.S.No.11 of 2018 was transferred to the court of Special Court for Trial and Disposal of Commercial Disputes, Visakhapatnam (in short the Special Court/Commercial Court). Before the Special Court, the petition filed by the petitioner/defendant i.e., I.A.No.2028 of 2018 under Section 148 r/w Section 151 CPC was dismissed for default on 10.06.2019, against which the petitioner filed I.A.No.32 of 2020 under Order IX Rule 9 r/w Section 151 C.P.C for restoration of I.A.No.2028 of 2018 and as I.A.No.32 of 2020 was filed beyond the period of limitation, the petitioner also filed I.A.No.31 of 2020 under Section 5 of the Limitation Act to condone the delay of 183 days in filing I.A.No.32 of 2020.

7. The learned Special Court below by order dated 12.11.2020 under challenge dismissed I.A.No.31 of 2020 and I.A.No.32 of 2020 against which the present petition has been filed.

8. Sri Vedula Venkataramana, learned senior advocate submitted that the suit was initially instituted in the civil court from where it was transferred to the Commercial Court under the Commercial Courts, Commercial Division and Commercial Appellate Division of High Courts Act, 2015 (for short, “the Act, 2015”). He submitted that as at the time of transfer of the suit, the petitioner‘s application for extension of time under Section 148 r/w Section 151 CPC was pending, in view of the procedure applicable to the regular suits, under which, the regular court has the power to extend the time beyond the statutory period of 90 days, the Commercial Court would also have the power to extend the period of 120 days, suitably, for filing the written statement. He submitted that although on transfer, the Commercial Court was not required to issue fresh summons, where summons had already been issued by the regular Court, but in such a case the period of 120 days for filing the written statement would be from the date of transfer of the case to the Commercial Court. He submitted that as on the date the suit was transferred to the Commercial Court, the written statement had already been filed before the regular Court with a delay of 29 days pending

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2022 Supreme(AP) 52

Point of Law: 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.

Cases Referred (34)