Madhya Pradesh High Court
United India Insurance Co.Ltd. vs M/S Sourabh Industries Through Dr ... on 22 August, 2022
Author: Vivek Rusia
Bench: Vivek Rusia, Amar Nath Kesharwani
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M.A. No.37/2020
HIGH COURT OF MADHYA PRADESH: BENCH INDORE
BEFORE
HON'BLE SHRI JUSTICE VIVEK RUSIA
&
HON'BLE SHRI JUSTICE AMAR NATH (KESHARWANI)
ON THE 22nd OF AUGUST, 2022
MISC. APPEAL No. 37 of 2020
Between:-
UNITED INDIA INSURANCE CO.LTD. SENIOR DIVISIONAL
MANAGER DIVISIONAL OFFICE C-22/13 MAHAKAL VANIJYA
1.
KENDRA ABOVE HERO SERVICE NEAR TREASURE BAZAR
NANAKHEDA UJJAIN (MADHYA PRADESH)
THROUGH REGIONAL MANAGER UNITED INDIA INSURANCE
COMPANY LIMITED REGIONAL OFFICE, ADDRESS PARYAVAS
2.
BHAVAN, SECOND BLOCK, 2ND FLOOR, ARERA HILLS,
BHOPAL (MADHYA PRADESH)
THROUGH MANAGER UNITED INDIA INSURANCE COMPANY
3. LIMITED REGISTERED AND HEAD OFFICE ADDRESS: 24,
WHITES ROAD, CHENNAI (TAMIL NADU)
.....PETITIONER
(SHRI SUDHIR DANDWATE, LEARNED COUNSEL FOR THE
APPELLANTS)
AND
M/S SOURABH INDUSTRIES THROUGH DR PARASCHAND
MARU PARTNER 54 JL AND PART OF 55-N INDUSTRIAL AREA
1.
MAXI ROAD UJJAIN/ 55 AP TIWARI MARG UJJAIN (MADHYA
PRADESH)
M/S SOURABH INDUSTRIES THROUGH PARTNERS SAURABH
MARU S/O SHRI PARASCHAND MARU, AGED ABOUT 33 YEARS,
2.
OCCUPATION: BUSINESS 55, A.P. TIWARI MARG, UJJAIN
(MADHYA PRADESH)
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M.A. No.37/2020
M/S SOURABH INDUSTRIES THROUGH PARTNERS SMT.
SHAKUNTALA MARU W/O SHRI PARASCHAND MARU, AGED
3.
ABOUT 61 YEARS, OCCUPATION: BUSINESS 55, A.P. TIWARI
MARG, UJJAIN (MADHYA PRADESH)
.....RESPONDENTS
(SHRI VEER KUMAR JAIN, SENIOR ADVOCATE WITH SHRI
VAIBHAV JAIN, ADVOCATE FOR THE RESPONDENTS.)
This appeal coming on for orders this day, JUSTICE VIVEK
RUSIA passed the following:
With consent of learned counsel for the parties, heard finally.
ORDER
The appellants/defendants have filed this appeal u/s. 13 of the Commercial Courts Act, 2015 against the order dated 28.11.2019 whereby the learned Commercial Court has allowed the application filed by the respondents/plaintiffs under Order 8 Rule 1 of the C.P.C. and dismissed the application filed by them u/s. 151 of the C.P.C.
The facts of the case, in short, are as under :
1. The respondents/plaintiffs filed the civil suit for recovery of Rs.2,30,06,982/- before the District Judge, Ujjain which was registered as Civil Suit No. 2B/2018. After receipt of the notice, the appellant appeared through counsel on 2.1.2019 and sought time to file a written statement. Vide order dated 16.5.2019, learned District Judge granted time to the appellants to file written statement. On the next date of hearing i.e. on 2.7.2019, the defendants filed the written statement and the plaintiffs filed an application u/s. 15 of the Commercial Courts Act seeking transfer of the suit to the Commercial Court. Vide order dated 2.8.2019 learned District
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Judge has directed for transfer of the civil suit to the Commercial Court with a further direction that all the pending interlocutory applications shall be decided by the Commercial Court.
2. On 16.9.2019, counsel appearing for the appellants/defendants submitted to the Court that in the last two pages the signature of the prescribed authority has been left, therefore, 3-4 days' days time be given to cure the defect. The respondents/plaintiffs also filed an application under Order 8 Rule 1 of the C.P.C. praying that the written statement filed by the appellants/defendants beyond the period of 120 days be not taken on record. Vide impugned order dated 28.11.2019, learned Commercial Court has held that the appellants/defendants filed the written statement beyond the period of 120 days after receipt of the notice from the court, hence the same is not liable to be taken on record. As far as correction of defects is concerned on an application u/s. 151 of the C.P.C. is not liable to be considered as the written statement is not now in the record of suit. Being aggrieved by the aforesaid, appellants/defendants have filed the present appeal u/s. 13 of the Commercial Courts Act before this Court.
3. At the very outset, Shri V.K. Jain, learned senior counsel appearing for the respondents/plaintiffs has raised an objection about the maintainability of this appeal. According to him, in view of Section 8 and 13 of the Commercial Courts Act, the present appeal is not maintainable and same is liable to be dismissed.
4. On the other hand, Shri S.V. Dandwate, learned counsel appearing for the appellants/defendants, submits that if this appeal
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M.A. No.37/2020is not maintainable, this appeal be treated as a writ petition filed under Article 227 of the Constitution of India as this Division Bench is competent to decide the writ petition filed against the order passed by the Commercial Court. He submits that inadvertently the last two pages of the written statement could not be signed by the authorised officer and such a defect is liable to be cured looking to the huge claim filed against the appellants/Insurance Company.
5. Shri Jain, learned senior counsel for the respondents/plaintiffs, refutes that the written statement not only suffers from the defect of non-signing by the authority but there is no affidavit annexed with the written statement which is also mandatory under the provisions Order VI Rule 15 of the C.P.C. He further submits that the written statement filed by the appellants without verification and affidavit is not liable to be treated as a written statement and since it was filed beyond the period of limitation, therefore, learned Commercial Court has rightly taken off the same from the record.
Heard
6. So far as maintainability of Misc. Appeal filed u/s 13 of the Commercial Court Act is concerned, it is specifically barred. No Misc. Appeal lies against an order passed on an interlocutory application. Section 13 of the Commercial Courts Act provides filling of an appeal against the decree of Commercial Courts and Commercial Divisions and according to which, any person aggrieved by the judgment or order of a Commercial Court below the level of a District Judge may appeal to the Commercial
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M.A. No.37/2020Appellate Court within 60 days from the date of judgment or order. As per provisions of Section 13, an appeal lies against the orders passed by the Commercial Court and Commercial Division and that are specifically enumerated under Order 43 of the C.P.C., as amended by this Act. Therefore, an appeal lies only against a judgment or order passed by the Commercial Court and the Misc. Appeal lies only against an order passed under the provisions of Order 43 of the C.P.C. Striking out the written statement from the record and rejection of an application filed u/s. 151 of the C.P.C. are not appealable under Order 43 of the C.P.C., therefore, in either case, this appeal is not maintainable u/s. 13 of the Commercial Courts Act, hence the appeal is liable to be dismissed.
7. Shri Dandwate, learned counsel appearing for the appellant, submits that the appellant would be remediless if this appeal is dismissed.
8. Section 8 of the Commercial Courts Act provides that no revision application or petition or petition against an interlocutory order shall be entertained against any interlocutory order of a Commercial Court, including an order on the issue of jurisdiction, subject to the provisions of Section 13, shall be raised only in an appeal against the decree of the Commercial Court. Order 43 Rule 1A of the C.P.C. gives a right to challenge non-appealable order by way of an appeal against the decree and according to which, where any order is made under this Code against a party and thereupon any judgment is pronounced against the such party and a decree is drawn up, such party may, in an appeal against the decree, contend that such order should not have been made and the judgment should
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M.A. No.37/2020not have been pronounced. In view of the foregoing discussion, in the considered opinion of this Court, this appeal is not maintainable.
Accordingly, this appeal fails and is hereby dismissed, however, with no order as to costs.
[ VIVEK RUSIA ] [AMAR NATH (KESHARWANI)]
JUDGE. JUDGE.
Alok/-
Digitally signed by ALOK GARGAV
Date: 2022.08.25 10:32:05 +05'30'