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2019 Supreme(Bom) 2152
IN THE HIGH COURT OF JUDICATURE AT BOMBAY AT GOA BENCH
C.V. Bhadang, J.
Vedanta Limited - Appellant
Versus
Global Energy Pvt. Ltd. - Respondent
Writ Petition No. 305 of 2019
Decided On : 26-07-2019
S.S. Kantak, Adv., Jonathan Delduque Costa, Adv., Preetam Talaulikar, Adv., Aleesha Reis Dos Falcao, Adv., Tarshish Leo Pereira, Adv., Neelesh A. Takkekar, Adv.
The court interpreted and applied the provisions of the Commercial Courts Act, 2015, specifically Section 15(2), Section 15(3), and Section 15(4), to allow the petitioner to file the written statement subject to costs, balancing the expeditious disposal of a commercial suit with the interest of the defendant.
Headnote:
Commercial Court - Challenge to order dismissing application for time to file written statement - The Commercial Courts Act, 2015 - Section 15(2), Section 15(3), Section 15(4) - The court allowed the petitioner to file the written statement subject to costs, interpreting the provisions of the Act and balancing the expeditious disposal of a commercial suit with the interest of the defendant.
Fact of the Case:
The petitioner sought time to file a written statement in a suit transferred to the Commercial Court, but the application was dismissed, precluding the petitioner from filing the written statement.
Finding of the Court:
The court found that the petitioner should have been allowed to file the written statement, albeit subject to costs, considering the provisions of the Commercial Courts Act, 2015.
Issues: The main issue was whether the petitioner should be allowed to file the written statement in a suit transferred to the Commercial Court, and if so, under what conditions.
Ratio Decidendi: The court interpreted Section 15(2), Section 15(3), and Section 15(4) of the Commercial Courts Act, 2015, and balanced the expeditious disposal of a commercial suit with the interest of the defendant, allowing the petitioner to file the written statement subject to costs.
Final Decision: The petition was allowed, and the impugned orders were set aside. The Trial Court was directed to accept the written statements filed by the petitioner on record subject to the petitioner depositing costs of Rs.50,000 payable to the respondent within two weeks from the date of the judgment.
JUDGMENT
C V Bhadang, J. - Rule made returnable forthwith. The learned Counsel for the respondent, waives service. Heard finally by consent of parties.
2. The challenge in this petition is to the order dated 27.03.2018 and 15.01.2019 passed by the Commercial Court at Panaji in Special Civil Suit (Commercial) No.84 of 2017. By the order dated 27.03.2018, an application (exhibit -12) filed by the petitioner for time to file written statement has been dismissed while by the subsequent order dated 15.01.2019, an application, exhibit D-13, for recall of the earlier order dated 27.03.2018 has been dismissed. The net result is that the petitioner has been precluded from filing written statement in the suit.
3. The brief facts are that the respondent has filed the said suit against the petitioner for specific performance of an agreement dated 18.12.2013 and for damages, etc. That suit was filed before the learned Senior Civil Judge at Panaji, Goa, and was registered as Special Civil Suit No.28/2016/A. It may be mentioned that although The Commercial Courts Act,2015 (Act of 2015, for short), had come into force on 23.10.2015, the Commercial Courts were constituted at Panaji only on 03.11.2016. Thus, Special Civil Suit No.28/2016/A was filed on 25.07.2016 i.e. after the coming into force of the Act, however, prior to the constitution of the Commercial Courts.
4. Somewhere in June 2017, the aforesaid suit was transferred to the Commercial Court and was registered as Special Civil suit (Commercial) No.84 of 2017. Prior to its transfer, the petitioner before the Civil Court had sought time to file written statement on 22.02.2017,05.04.2017 and 20.06.2017. According to the petitioner, the duly affirmed written statement of the petitioner was dispatched from the office of the petitioner at Jharsuguda (Orissa) on 18.07.2017. However, on 19.07.2017, the Advocate for the petitioner was informed that the suit has been transferred to the Commercial Court.
5. According to the petitioner, it was learnt that the Commercial Court had taken up the suit on 1st March 2018 and the Advocate for the petitioner appeared and sought time to file the written statement. Ultimately, on 27.03.2018, the application, exhibit D-12, came to be filed seeking ten days time to file the written statement along with appropriate application for condonation of delay and for asking for grant of "final opportunity" in the interest of justice.
6. The application was opposed on behalf of the respondent, inter alia, on the ground that a maximum period of 120 days which can be granted as per the amended provisions of the Act has already expired and that the application was not supported with any affidavit and, therefore, it be dismissed.
7. The learned Trial Court passed the following order on 27.03.2018, below application Exhibit D-12 :
"The defendant had put in an appearance when the matter was pending before the Civil Court. The matter was transferred to this Court in June 2017, and as the defendant had not put in an appearance in this Court, fresh summons were issued. It is seen that even before the Civil Court no written statement was filed. Once the matter was transferred to this Court, a duty was cast on the defendant to appear in this Court and not wait for fresh summons. As such, no sufficient grounds have been made out for the delay in filing a W.S. Hence this application is dismissed."
8. In application, exhibit D-13, filed on 26.04.2018, which was signed and affirmed by the Advocate, it was contended that the petitioner has acted diligently and it should not be prejudiced on account of developments in the interregnum, which were not within the control of the petitioner. It was contended that there was no order closing the right of the petitioner to file the written statement passed in Special Civil Suit No.28/2016/A (i.e. prior to the transfer of the suit to the Commercial Court). In the application, the petitioner tried to set out the circumstances which led to the pe
