Madras High Court
Shivnarayan Sabu vs Sabu Trade Private Limited on 16 September, 2022
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 16.09.2022
CORAM:
THE HONOURABLE MR.JUSTICE S.SOUNTHAR
CRP.No.2943 of 2022
and
CMP.No.15945 of 2022
Shivnarayan Sabu ... Petitioner
Vs
Sabu Trade Private Limited
Represented by its Director, Vishal Sabu
No.114, Narasimhan Road,
Sheva Pet, Salem – 636002. ...Respondent
Prayer:- This Civil Revision Petition is filed under Article 227 of the
Constitution of India, to set aside the order passed by the Principal District
Judge, Salem dated 27.07.2022 in I.A.No.1 of 2022 in COS.No.20 of 2022
and consequently direct the Principal District Judge, Salem to take the
Additional Written Statement filed by the petitioner herein on record in
COS.No.20 of 2022.
For Petitioner : Mr.M.S.Bharath
For Respondent : Mr. Gokul Krishnan
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ORDER
This Civil Revision Petition is filed against the order passed by the
Principal District Judge, Salem, dismissing the petition filed by the
revision petitioner/defendant seeking leave of the court to file additional
written statement.
2. The respondent herein has filed a suit seeking declaration that it
was the proprietor of the trademark/label SABU, injunction restraining the
petitioner/defendant from infringing the trademark SABU and also for
other incidental reliefs.
3. The revision petitioner herein filed a written statement and resisted
the suit on various grounds. While the suit was pending, the revision
petitioner filed a petition under Order 8 Rule 9 of CPC to receive
additional written statement to raise certain further pleas which were not
in the original written statement.
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4. The court below dismissed the petition filed by the revision
petitioner seeking leave of the court to file additional written statement by
relying on time limit fixed under Order 8 Rule 1 of CPC for filing written
statement. The court below in its impugned order has stated that as per the
amended CPC applicable to the Commercial Courts, the outer time limit
for filing a written statement is 120 days and on expiry of the said time
limit, the defendant shall forfeit the right to file the written statement. The
learned Judge observed in the impugned order that though Order 8 Rule 9
of CPC enables the parties to file subsequent pleadings, the revision
petitioner cannot take advantage of the same in view of the fact that under
the Commercial Courts Act, the suit shall be disposed of within a period
of one year. The learned Judge proceeded to observe that the main suit was
of the year 2019 and hence after the lapse of nearly 2 years, it is not open
to the revision petitioner / defendant to file additional written statement
and consequently dismissed the petition seeking leave of the court to
present additional written statement.
5. Heard the arguments of the learned counsel for the petitioner and
the learned counsel for the respondent. Perused the typed set of papers.
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6. At the out set, the learned counsel for the respondent raised an
objection with regard to the maintainability of the revision. The learned
counsel had drawn the attention of the court to Section 8 of Commercial
Courts Act which bars revision against interlocutory orders.
7. Section 8 of Commercial Courts Act reads as follows:
“8. Bar against revision application or petition
against an interlocutory order:
Notwithstanding anything contained in any other law for
the time being in force, no civil revision application or
petition shall be entertained against any interlocutory
order of a Commercial Court, including an order on the
issue of jurisdiction, and any such challenge, subject to the
provisions of Section 13, shall be raised only in an appeal
against the decree of the Commercial Court.”
8. It was argued before this court that the correctness or otherwise
of the order impugned in this revision is not revisable by this court in view
of the specific bar under Section 8 of Commercial Courts Act and if at all
aggrieved, the remedy of the revision petitioner would be to canvass the
correctness of the same in an appeal filed against the decree passed by the
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commercial court.
9. In the considered opinion of this Court, Section 8 of Commercial
Courts Act which is part of an ordinary statute cannot control the
supervisory jurisdiction available to the High Court under Article 227 of
the Constitution of India. The Hon'ble Apex Court in L. Chandrakumar
Vs. Union of India reported in 1997 (3) SCC 261 held that the power of
Judicial review under Article 226 and power of Superintendence conferred
under Article 227 of the Constitution of India to the High Courts cannot
be taken away as the said power is part of the basic structure of the
Constitution. The said view was re-affirmed by the Apex Court in Surya
Dev Rai Vs. Ram Chander Rai & Others reported in 2003 6 SCC 675.
Therefore, the bar created under Section 8 of Commercial Courts Act will
not restrict the power of Superintendence available to this court under
Article 227 of the Constitution of India. In appropriate cases where the
orders of the commercial courts results in irreparable injury to the revision
petitioners, this court can very well exercise its supervisory jurisdiction.
However, the same shall be exercised with circumspection.
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10. The maintainability of the revision under Article 227 of the
Constitution of India against the orders passed by the Commercial Court
was considered by High Court of Gujarat in State of Gujarat Vs. Union
of India reported in MANU/GJ/0870/2018.
“9. Considering the law laid down by the Hon'ble Supreme Court
in the aforesaid decisions, we are of the opinion that bar contained
under Section 8 of the Commercial Courts Act shall not affect the
jurisdiction of the High Court under Article 227 of the Constitution of
India. If the contention on behalf of the respondents that considering
Section 8 of the Commercial Courts Act, even the writ jurisdiction
under Article 227 of the Constitution of India is barred, in that case,
such a provision would suffer from the vice of unconstitutionality as
observed by the Hon'ble Supreme Court in the aforesaid decisions.
The power vested in the High Courts to exercise judicial
superintendence over the decisions of the courts and Tribunals within
their respective jurisdictions is part of the basic structure of the
Constitution and no legislature can take away such power of
superintendence conferred under Article 227 of the Constitution of
India. It is required to be noted that therefore, even the legislature,
while enacting Section 8 of the Commercial Courts Act, seems to have
wisely not used the word "maintainable" but has used the word
"entertained". At this stage, it is also required to be noted that where
the statute specifically provided that against the decision of the
Tribunal, only an appeal under Article 136 of the Constitution before
the Hon'ble Supreme Court would be maintainable, the Hon'ble
Supreme Court in the case of L.Chandra Kumar v. Union of India
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And Others (supra) has specifically observed and held that the
powers of the supervisory jurisdiction of the High Court under Article
227 of the Constitution against the decision of the Tribunals shall still
be available and the aggrieved party can approach the High Court
under Article 227 of the Constitution. Therefore, it is observed and
held that Section 8 of the Commercial Courts Act shall not affect the
powers of the High Court under Article 227 of the Constitution of
India against the order passed by the Commercial Court. However, at
the same time, the powers under Article 227 of the Constitution of
India must be exercised sparingly and in exceptional cases only, more
particularly, looking to the object and purpose of Section 8 of the
Commercial Courts Act, i.e. speedy disposal of commercial disputes.''
11. The very same question of revising the order passed by the
commercial court under Article 227 came up before the High Court of
Telangana in Harpreet Singh Chhabra and Others Vs. Suneet Kaur
Sahney and Others reported in MANU/HY/O480/2018
12. The relevant observation of the Division Bench of Telangana
High Court is as follows:
11) In view of the judgments referred to above the argument
that the High Court cannot entertain a Civil Revision Petition
under Article 227 of the Constitution of India in view of Section 8 of
the Act, cannot be accepted.
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12) One other objection, which came to be raised is that if revisions
are sought to be entertained under Article 227 of the Constitution of
India, the purpose for which the Commercial Courts Act has been
enacted would get defeated. In other words it is pleaded that
floodgates would be opened permitting every order passed by the
Commercial Court be challenged under Article 227 of the
Constitution of India.
13) In Coal India Ltd. And others v. Saroj Kumar Mishra5 the Apex
Court observed that merely because there is possibility of flood-gate
litigation, a valuable right of a citizen cannot be taken away. In para
No.19, the Apex Court observed as under:
"19. The floodgate argument also does not appeal to us. The same
appears to be an argument of desperation. Only because, there is
possibility of floodgate litigation, a valuable right of a citizen cannot be
permitted to be taken away. This Court is bound to determine the
respective rights of the parties."
14) It is also to be noted that every application filed under Article
227 of Constitution of India shall not be entertained. In fact, the law
does not contemplate that a Civil Revision Petition under Article
227 of the Constitution of India is a statutory right which should be
entertained. As observed by us earlier, in Surya Dev Rai case (3
supra) the Hon'ble Supreme Court has observed that care, caution
and circumspection needs to be exercised when the supervisory
jurisdiction is sought to be invoked, during the pendency of any suit
or proceedings in a subordinate Court and the error though calling
for correction is yet capable of being (2007) 9 SCC 625 corrected and
the conclusion of the proceedings in an appeal or revision preferred
there against and entertaining a petition invoking supervisory
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jurisdiction of the High Court would obstruct the smooth flow and/or
early disposal of the suit or proceedings. Therefore, the Court would
interfere only where the error is such, that if not corrected at that
very moment, may become incapable of correction at a later stage.
13. The careful consideration of the above decisions by the High
Court of Gujarat and High Court of Telangana make it clear that the
supervisory power available to High Court cannot be taken away by
ordinary statute and hence even the orders passed by the commercial court
can also be revised by this court under Article 227 of the Constitution of
India. However, the said revisional power can be exercised only in rarest
of rare cases with circumspection. Therefore, I hold that the revision is
maintainable under Article 227 of the Constitution of India not
withstanding Section 8 of the Commercial Courts Act. However, it is made
clear that only in cases where it is established, order impugned cannot be
challenged and corrected, in a regular appeal against decree passed by
Commercial Court, without much inconvenience and irreparable injury to
the party applying for Revision, the revision can be entertained.
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14. The learned counsel for the petitioner assailed the order passed
by the court below mainly on the ground that the outer limit of 120 days
introduced by amendment of CPC applicable to the Commercial Courts as
per Section 16 of Commercial Courts Act is not applicable to the case on
hand.
15. The learned counsel submitted that as per Section 16 of
Commercial Courts Act, the amended CPC is applicable only to the
Commercial disputes of specified value. By drawing the attention of this
court to Section 2 (1) (i) of Commercial Courts Act, learned counsel
submitted that valuation of the plaint being less than 3 lakhs, the amended
CPC applicable to Commercial disputes of specified value is not applicable
to the suit on hand.
16. Section 2 (1) (c ) defines Commercial Disputes, it is an
inclusive definition. Therefore, as per Section 2 (1) (c ) (xvii), intellectual
property rights relating to registered and unregistered trade marks,
copyrights, patent, design, domain names, geographical indication and
semiconductor integrated circuits are treated as commercial disputes. The
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present suit is relating to the dispute concerning trade mark and hence, it
will fall under the definition under Section 2 (1) (c ) (xvii) .
17. Section 2 (1) (i) of Commercial Courts Act defines the expression
“specified value” and the same reads as follows:-
(i) “Specified Value”, in relation to a commercial
dispute, shall mean the value of the subject-matter in
respect of a suit as determined in accordance with section
12 [which shall not be less than three lakh rupees] or such
higher value, as may be notified by the Central
Government.
18. Section 16 (1) of Commercial Courts Act reads as follows:
16. Amendments to the Code of Civil Procedure, 1908
in its application to commercial disputes
(1) The provisions of the Code of Civil Procedure, 1908
(5 of 1908) 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.
The combined reading of Section 16 and Section (2) (i) of Commercial
Courts Act make it clear that fast track amended code of Civil Procedure
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is applicable only to the suits involving commercial dispute of specified
value. In other words, if the value of the commercial dispute is less than 3
lakhs, then the benefit of the fast track amended CPC is not made
applicable.
19. The learned counsel for the petitioner drawn the attention of this
court to a case law in Bharat Bhogilal Patel Vs. Leitz Tooling Systems
India Private Ltd., for the proposition that benefits of the Amended CPC
for the Commercial Court Act are only applicable to the commercial
disputes of specified value. The relevant observation of the Bombay High
Court is as follows:-
27. In my view, literally interpreting Section 16, the
interpretation that follows is that the amendments
introduced by Section 16 apply only to 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. In Kanai Lal Sur vs. Paramnidhi
Sadhukhan33, it was held by the Apex Court that if the
words used are capable of one construction only then it
would not be open to the courts to adopt any other
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hypothetical construction on the ground that such
construction is more consistent with the alleged object and
policy of the subject Act. Further, the Apex Court, in its
decision rendered in Commr. of Customs v. Dilip Kumar &
Co.,34 has held thus :
"21.The well-settled principle is that when the words
in a statute are clear, plain and unambiguous and only one
meaning can be inferred, the courts are bound to give
effect to the said meaning irrespective of consequences. If
the words in the statute are plain and unambiguous, it
becomes necessary to expound those words in their natural
and ordinary sense. The words used declare the intention
of the legislature."
28. Additionally, as submitted by Mr. Kohli, there may be
certain inefficient consequences resulting from the literal
interpretation of Section 16. Illustratively, the present Suit
is titled a 'Commercial Suit' and yet, would be governed by
the un- amended CPC. However, in my view, should the
legislature deem fit, it may carry out an amendment to
overcome these consequences and/or may provide a
clarification if it so deems fit. Till such time, I am currently
bound by the language of Section 16 and am inclined to
interpret the said section literally.
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29. It was also Mr. Kohli's argument that the creation of a
sub-class within a class would be unconstitutional. If that
is so, the Plaintiff's remedy would be to challenge the vires
of Section 16 of the Commercial Courts Act for in its
present form, I am bound with the letter of law written
therein and cannot interpret the said provision as Mr.
Kohli would have it.
30. I therefore hold that the amendments introduced to the
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. Consequently, amongst other amendments
introduced to the CPC by the Commercial Courts Act, the
amendment to the CPC mandating that a Written Statement
in a Commercial Suit has to be filed within 120 days, will
not apply to Commercial Disputes not of a Specified
Value.”
20. The reading of above observations of the Bombay High Court
makes it clear that the benefit of amendment introduced under CPC under
Section 16 of Commercial Courts Act is applicable only to the commercial
disputes of specified value (Rs.3 lakhs and above).
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21. In the case on hand, the value of the suit is only Rs.21,000/- less
than the specified value. Therefore, the amendment introduced to Order 8
Rule 1 of CPC by Section 16 of the Commercial Courts Act is not
applicable to the present case.
22. A perusal of the valuation column of the plaint in the suit makes
it clear that the suit claim was valued at Rs.21,000/-. Hence, it falls below
the specified value under the Commercial Courts Act. In such case, the
benefit of fast track amended CPC under Section 16 of Commercial
Courts Act is not applicable to the present suit. Therefore, the outer limit
of 120 days prescribed under proviso Order 8 Rule 1 of amended CPC
applicable to commercial disputes of specified value may not be available
to the trial of the present suit. Hence, the application for leave to file
additional written statement by invoking Rule 9 of Order 8 is not
controlled by proviso to Order 6 Rule 1 of CPC, introduced by Section 16
of Commercial Courts Act. However, it is made clear that revisional power
under Article 227 of the Constitution of India can be exercised only in
exceptional cases, where challenge to correctness of order while filing
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appeal against decree would not remove injury caused to the person
applying for revision.
23. In the case on hand, the revision petitioner wanted to file an
additional written statement. By additional written statement, the revision
petitioner wants to highlight his long association with the word SABU,
which is the surname of his family apart from other material facts, which
according to him came into existence subsequent to suit. If the impugned
order passed by the court below is allowed to stand the same cannot be
corrected by the appellate court while considering the regular appeal.
Further, if the correctness of the order passed by the court below is
considered in regular appeal and in the event of the appellate court, coming
to the conclusion that the revision petitioner ought to have been given an
opportunity to file an additional written statement, necessarily there shall
be re-trial of the case. Therefore disallowing additional written statement
by the revision petitioner would result in irreparable injury to him.
Therefore, I am inclined to interfere with the impugned order passed by the
court below disallowing leave to file additional written statement. Further,
the respondent is not able to show any serious prejudice in case of
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allowing of petitioner's request for filing of additional written statement.
Therefore, CRP is allowed by setting aside the order passed by the
Principal District Judge, Salem in I.A.No.1 of 2022 in COS.No.20 of
2022. No costs. Consequently, connected miscellaneous petition is closed.
16.09.2022
Index:Yes/No
Web:Yes/No
Speaking/Non Speaking
gv
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S.SOUNTHAR.,J.
gv CRP.No.2943 of 2022 and CMP.No.15945 of 2022 16.09.2022 18/18 https://www.mhc.tn.gov.in/judis