Gujarat High Court
Murlibhai Duhilanomal Chhatwani ... vs Mohanbhai Duhilanomal Chhatwani on 24 December, 2021
Author: N.V.Anjaria
Bench: N.V.Anjaria
C/SCA/14667/2021 CAV JUDGMENT DATED: 24/12/2021
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 14667 of 2021
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE N.V.ANJARIA Sd/-
and
HONOURABLE MR. JUSTICE SANDEEP N. BHATT Sd/-
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1 Whether Reporters of Local Papers may be allowed YES
to see the judgment ?
2 To be referred to the Reporter or not ? YES
3 Whether their Lordships wish to see the fair copy NO
of the judgment ?
4 Whether this case involves a substantial question NO
of law as to the interpretation of the Constitution
of India or any order made thereunder ?
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MURLIBHAI DUHILANOMAL CHHATWANI THROUGH POA HOLDER ANIL
MURLIBHAI CHHATWANI
Versus
MOHANBHAI DUHILANOMAL CHHATWANI
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Appearance:
MR JIGAR M PATEL(3841) for the Petitioner(s) No. 1
DELETED(20) for the Respondent(s) No.
10,11,12,13,14,15,16,17,18,19,2,20,21,22,23,24,25,26,27,28,29,5,6,7,8,9
MR.NANDISH H THACKAR(7008) for the Respondent(s) No. 1
NOTICE SERVED BY DS(5) for the Respondent(s) No. 4
NOTICE SERVED(4) for the Respondent(s) No. 3
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CORAM:HONOURABLE MR. JUSTICE N.V.ANJARIA
and
HONOURABLE MR. JUSTICE SANDEEP N. BHATT
Date : 24/12/2021
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C/SCA/14667/2021 CAV JUDGMENT DATED: 24/12/2021
CAV JUDGMENT
(PER : HONOURABLE MR. JUSTICE SANDEEP N. BHATT)
1. The present petition is filed under Articles 226 and 227 of the Constitution of India challenging the judgment and order passed by the 3rd Additional Senior Civil Judge and Additional Chief Judicial Magistrate, Surat in Commercial Suit No.478 of 2021 dated 23.07.2021, below Exh.18, inter alia praying as under :
"8.A This Hon'ble Court may be pleased to issue a writ of, or in the nature of, Certiorari or any other appropriate writ, order or direction quashing and setting aside the order dated 23.07.2021 passed by the Court of 3rd Additional Senior Civil Judge, Surat below written statement - Exh.18 filed by the petitioner (Defendant No.2) in the proceedings of Commercial Suit No.478 of 2021 - Annexure-A and be further pleased to direct the Court of 3 rd Additional Senior Civil, Surat to take on record the written statement (Exh.18) filed by the petitioner (Defendant No.2) in the proceedings of Commercial Suit No.478 of 2021;
B. Pending admission, disposal and final hearing of the above numbered writ petition, this Hon'ble Court may be pleased to stay the further proceedings of Commercial Suit No.478 of 2021 lying before the Court of 3rd Additional Senior Civil Judge, Surat;
C. Ad interim relief in terms of aforesaid clause may kindly be granted;
D. Such other(s) and further relief(s) which this Page 2 of 18 Downloaded on : Wed Jan 12 14:42:41 IST 2022 C/SCA/14667/2021 CAV JUDGMENT DATED: 24/12/2021 Hon'ble Court may deem fit to be granted in the interest of justice;"
2. Brief facts of the case are epitomized as under.
2.1 Respondent No.1 - original plaintiff has filed the Suit being Small Commercial Suit No.225 of 2020 against the present petitioner - original defendant No.2 and respondent No.2 (original defendant No.1) and respondents No.3 to 29 (original defendants No.3 to 29) in the Court of Small Causes, Surat, seeking relief of declaration and permanent injunction.
2.2 The petitioner was served with the summons on 20.02.2020 and he has filed his appearance and on the returnable date i.e. on 05.03.2020, he has prayed for time to file written statement in the said proceedings. The proceedings of the said suit was adjourned to 24.03.2020.
2.3 Thereafter, COVID-19 pandemic situation was prevailing in the entire State and the Civil Court became non-functional due to lock down across the nation and the physical functioning of the Court was stopped for longer period. Therefore, the proceedings of the aforesaid civil suit were adjourned from time to time.
2.4 It was very difficult for the litigants even to approach their lawyers and visit their offices during that pandemic period.
2.5 After considering the scenario at the relevant point of time, the Hon'ble Apex Court has taken suo motu cognisance of the hardship faced by the litigants on account of COVID-19 pandemic situation in Suo Motu Writ Petition (C) No.3 of 2020 and other allied Page 3 of 18 Downloaded on : Wed Jan 12 14:42:41 IST 2022 C/SCA/14667/2021 CAV JUDGMENT DATED: 24/12/2021 applications, the Hon'ble Apex Court vide order dated 23.03.2020 has freezed the period of limitation, under the both the Laws - General Laws and the Special Laws, till further orders. Such limitation remained freezed till 14.10.2020, as submitted by the learned advocate for the petitioner.
2.6 It the case of the petitioner that due to continuation of the pandemic situation and as per the practice prevailing during the pandemic situation, the petitioner (original defendant No.2) has contacted his advocate and written statement was dropped in Drop Box on 05.11.2020.
2.7 The proceedings of the aforesaid civil suit were adjourned to 28.12.2020.
2.8 However, the written statement at Exh.18 filed by the petitioner (defendant No.1) in the proceedings of Small Commercial Suit No.225 of 2020 was not taken on record and the impugned order was passed, whereby the matter was fixed for hearing to decide, as to whether the written statement filed by the petitioner deserves to be taken on record inasmuch as same was filed after expiry of 120 days.
2.9 Thereafter, the proceedings of the aforesaid civil suit came to be transferred to the Court of Civil Judge, Surat vide order dated 16.01.2021 passed by the learned Principal District Judge, Surat, on administrative side, where it was registered as Commercial Suit No.478 of 2021 and the proceedings of the said suit No.478 of 2021 were adjourned from time to time.
Page 4 of 18 Downloaded on : Wed Jan 12 14:42:41 IST 2022C/SCA/14667/2021 CAV JUDGMENT DATED: 24/12/2021 2.10 The Court of 3rd Additional Senior Civil Judge, Surat vide order dated 23.07.2021 declined to take on record the written statement - Exh.18 filed by the petitioner (defendant No.2) in the proceedings of Commercial Suit No.478 of 2021, which is challenged by the petitioner in this petition.
3. We have heard learned advocate Mr. Jigar Patel for the petitioner and learned advocate Mr. Nandish Thakkar for the respondent. We have also perused the material on record.
4.1 Learned advocate Mr. Jigar Patel for the petitioner has submitted that the trial Court has not properly considered the various judgments / orders passed by the Hon'ble Apex Court with regard to the freezement of limitation period during the pandemic situation. He has submitted that the summons is served on defendant No.2 on 20.02.2020 and thus, the period of 30 days was to expire on 22.03.2020. The first order passed by the Hon'ble Apex Court in suo motu proceedings was on 23.03.2020. The relevant Paras : 1 & 2 of the said order are as under.
"1. This Court has taken Suo Motu cognizance of the situation arising out of the challenge faced by the country on account of Covid-19 Virus and resultant difficulties that may be faced by litigants across the country in filing their petitions / applications / suits / appeals / all other proceedings within the period of limitation prescribed under the general law of Page 5 of 18 Downloaded on : Wed Jan 12 14:42:41 IST 2022 C/SCA/14667/2021 CAV JUDGMENT DATED: 24/12/2021 limitation or under Special Laws (both Central and/or State).
2. To obviate such difficulties and to ensure that lawyers / litigants do not have to come physically to file such proceedings in respective Courts / Tribunals across the country including this Court, it is hereby ordered that a period of limitation in all such proceedings, irrespective of the limitation prescribed under the general law or Special Laws whether condonable or not shall stand extended w.e.f. 15th March, 2020 till further order/s to be passed by this Court in present proceedings."
4.2 Thereafter, the Hon'ble Apex Court has passed the orders extending such period of limitation from time to time. Further order is also passed by the Hon'ble Apex Court on 08.03.2021, which is as under.
"1. Due to the onset of COVID-19 pandemic, this Court took suo motu cognizance of the situation arising from difficulties that might be faced by the litigants across the country in filing petitions/applications/suits/appeals/ all other proceedings within the period of limitation prescribed under the general law of limitation or under any special laws (both Central or State). By an order dated 23.03.2020 this Court extended the period of limitation prescribed under the general Page 6 of 18 Downloaded on : Wed Jan 12 14:42:41 IST 2022 C/SCA/14667/2021 CAV JUDGMENT DATED: 24/12/2021 law or special laws whether compoundable or not with effect from 15.03.2020 till further orders. The order dated 23.03.2020 was extended from time to time. Though, we have not seen the end of the pandemic, there is considerable improvement. The lockdown has been lifted and the country is returning to normalcy. Almost all the Courts and Tribunals are functioning either physically or by virtual mode. We are of the opinion that the order dated 23.03.2020 has served its purpose and in view of the changing scenario relating to the pandemic, the extension of limitation should come to an end.
2. We have considered the suggestions of the learned Attorney General for India regarding the future course of action. We deem it appropriate to issue the following directions:
2.1 In computing the period of limitation for any suit, appeal, application or proceeding, the period from 15.03.2020 till 14.03.2021 shall stand excluded.
Consequently, the balance period of limitation remaining as on 15.03.2020, if any, shall become available with effect from 15.03.2021.
2.2 In cases where the limitation would have expired during the period between Page 7 of 18 Downloaded on : Wed Jan 12 14:42:41 IST 2022 C/SCA/14667/2021 CAV JUDGMENT DATED: 24/12/2021 15.03.2020 till 14.03.2021, notwithstanding the actual balance period of limitation remaining, all persons shall have a limitation period of 90 days from 15.03.2021. In the event the actual balance period of limitation remaining, with effect from 15.03.2021, is greater than 90 days, that longer period shall apply.
2.3 The period from 15.03.2020 till 14.03.2021 shall also stand excluded in computing the periods prescribed under Sections 23 (4) and 29A of the Arbitration and Conciliation Act, 1996, Section 12A of the Commercial Courts Act, 2015 and provisos (b) and (c) of Section 138 of the Negotiable Instruments Act, 1881 and any other laws, which prescribe period(s) of limitation for instituting proceedings, outer limits (within which the court or tribunal can condone delay) and termination of proceedings.
2.4 The Government of India shall amend the guidelines for containment zones, to state :
"Regulated movement will be allowed for medical emergencies, provision of essential goods and services, and other necessary functions, such as, time bound applications, including for legal Page 8 of 18 Downloaded on : Wed Jan 12 14:42:41 IST 2022 C/SCA/14667/2021 CAV JUDGMENT DATED: 24/12/2021 purposes, and educational and job-related requirements."
3. The Suo Motu Writ Petition is disposed of accordingly."
4.3 Moreover, he has already tendered the written statement at Exh.18 at the earliest available opportunity on 05.11.2020, in the Drop Box. Learned advocate for the petitioner has further submitted that the judgments which are relied upon by the trial Court in SCG Contracts India Pvt. Ltd.
Versus K.S. Chamankar Infrastructure Pvt. Ltd. [(2019) 12 SCC 210] is prior to the order passed by the Hon'ble Apex Court i.e. 23.03.2020, which is passed by taking into consideration the prevailing pandemic situation at the relevant point of time due to COVID-19 and therefore, the said judgment cannot be made applicable in the peculiar circumstances of the present case and therefore, he has submitted that the impugned order passed by the trial Court is erroneous and improper. He has submitted that the present petition be allowed.
5.1 Per contra, learned advocate Mr. Nandish Thakkar for the respondent has submitted that by relying on one of the order passed by the Hon'ble Apex Court dated 06.05.2020 in very suo motu proceedings, such extension of limitation is granted for the purpose of initiation of any legal proceedings. The order which is relied upon by Mr. Thakkar learned advocate is quoted as under.
"IA No.48411/2020 - FOR DIRECTIONS Page 9 of 18 Downloaded on : Wed Jan 12 14:42:41 IST 2022 C/SCA/14667/2021 CAV JUDGMENT DATED: 24/12/2021 By way of filing this application for directions, the applicant has made the following prayer :
"To issue appropriate directions qua (i) arbitration proceedings in relation to section 29A of the Arbitration and Conciliation Act, 1996 and
(ii) initiation of proceedings under section 138 of the Negotiable Instruments Act, 1881;"
In view of this Court's earlier order dated 23.03.2020 passed in Suo Motu Writ Petition (Civil) No.3/2020 and taking into consideration the effect of the Corona Virus (COVID 19) and resultant difficulties being faced by the lawyers and litigants and with a view to obviate such difficulties and to ensure that lawyers/litigants do not have to come physically to file such proceedings in respective Courts/Tribunal across the country including this Court, it is hereby ordered that all periods of limitation prescribed under the Arbitration and Conciliation Act, 1996 and under section 138 of the Negotiable Instruments Act 1881 shall be extended with effect from Page 10 of 18 Downloaded on : Wed Jan 12 14:42:41 IST 2022 C/SCA/14667/2021 CAV JUDGMENT DATED: 24/12/2021 15.03.2020 till further orders to be passed by this Court in the present proceedings.
In case the limitation has expired after 15.03.2020 then the period from 15.03.2020 till the date on which the lockdown is lifted in the jurisdictional area where the dispute lies or where the cause of action arises shall be extended for a period of 15 days after the lifting of lockdown.
In view of the above, the instant interlocutory application is disposed of.
IA No.48375/2020 -
Clarification/Direction And IA
No.48511/2020 - Clarification/Direction
And IA No.48461/2020 -
Clarification/Direction And IA
No.48374/2020 - Intervention Application And IA No.48416/2020 - Intervention Application And IA No.48408/2020 - Intervention Application Issue notice.
Waive service on behalf of the respondent - Union of India since Mr. K. K. Venugopal, learned Attorney General for India and Mr. Tushar Mehta, learned Solicitor General, appear on its behalf.
Page 11 of 18 Downloaded on : Wed Jan 12 14:42:41 IST 2022 C/SCA/14667/2021 CAV JUDGMENT DATED: 24/12/2021 Let notice be issued to other respondents." 5.2 Mr. Thackar, learned advocate for the respondent
has further relied on Paras : 7 and 8 of the decision rendered in same suo motu proceedings reported in (2020) 9 SCC 468 and has submitted that in view of the observations made by the Hon'ble Apex Court in the said judgment, it pertains to service of notices, summons and exchange of pleadings and documents. He has further submitted that the petitioner can not get the benefit of extension of period of limitation, as the written statement which is sought to be filed by the petitioner does not fall under the category indicated by the Hon'ble Apex Court in the above mentioned judgment. He has submitted that the present petition is required to be dismissed as admittedly the written statement is filed after a period of 120 days which is commenced from 24.02.2020. He has submitted that this petition may be dismissed.
6.1 We have heard learned advocates for the respective parties and we have perused the material on record, so also the judgments cited at the bar. The last judgment which is delivered by the Hon'ble Apex Court in the suo motu proceedings, as referred above, for extension of period of limitation during the COVID-19 pandemic situation is dated 23.09.2021, where the Hon'ble Apex Court has considered the prevailing situation and has directed as under :
"I. In computing the period of limitation for any suit, appeal, application or proceeding, the period from 15.03.2020 till 02.10.2021 shall Page 12 of 18 Downloaded on : Wed Jan 12 14:42:41 IST 2022 C/SCA/14667/2021 CAV JUDGMENT DATED: 24/12/2021 stand excluded. Consequently, the balance period of limitation remaining as on 15.03.2021, if any, shall become available with effect from 03.10.2021.
II. In cases where the limitation would have expired during the period between 15.03.2020 till 02.10.2021, notwithstanding the actual balance period of limitation remaining, all persons shall have a limitation period of 90 days from 03.10.2021. In the event the actual balance period of limitation remaining, with effect from 03.10.2021, is greater than 90 days, that longer period shall apply.
III. The period from 15.03.2020 till
02.10.2021 shall also stand excluded in
computing the periods prescribed under
Sections 23(4) and 29A of the Arbitration and Conciliation Act, 1996, Section 12A of the Commercial Courts Act, 2015 and provisos (b) and (c) of Section 138 of the Negotiable Instruments Act, 1881 and any other laws, which prescribed period(s) of limitation for instituting proceedings, outer limits (within which the court or tribunal can condone delay) and termination of proceedings.
IV. The Government of India shall amend the guidelines for containment zones, to state.
"Regulated movement will be allowed for medical emergencies, Page 13 of 18 Downloaded on : Wed Jan 12 14:42:41 IST 2022 C/SCA/14667/2021 CAV JUDGMENT DATED: 24/12/2021 provision of essential goods and services, and other necessary functions, such as, time bound applications, including for legal purposes, and educational and job-related requirements."
As a sequel to disposal of MA No.665/2021, pending interlocutory applications, including the applications for intervention/impleadment, also stand disposed of."
6.2 We perused the first order of the Hon'ble Apex Court i.e. dated 23.03.2020. In view of Para : 2 of the said order, the Hon'ble Apex Court has considered the hardship / difficulties of the lawyers as well as of the litigants due to lockdown and the Hon'ble Apex Court has ordered that the period of limitation in all such proceedings, irrespective of the limitation prescribed under the General Laws or Special Laws, whether condonable or not, shall be extended w.e.f. 15.03.2020 till further orders.
6.3 If we note the events in the present matter, the petitioner was supposed to file his written statement after service of notice, which he has received on 20.02.2020 and he has requested for adjournment on 05.03.2020 i.e. first returnable date after service. The trial Court has granted adjournment and kept the matter on 24.03.2020. We have considered the submissions made by the learned advocate for the petitioner and we have also gone through the material on record, it is apparent that on 22.03.2020, period of 30 days, Page 14 of 18 Downloaded on : Wed Jan 12 14:42:41 IST 2022 C/SCA/14667/2021 CAV JUDGMENT DATED: 24/12/2021 which is prescribed under Order VIII, Rule 1 of the CPC to file written statement, got over and therefore, the very first order dated 23.03.2020 of the Hon'ble Apex Court is applicable to the facts of the present case as limitation is extended w.e.f. 15.03.2020 and the petitioner is entitled to get the benefit of that order as the provisions of the Commercial Courts Act and Order VIII, Rule 1 of the Code of Civil Procedure, 1908 are covered by the directions of the Hon'ble Court regarding limitation prescribed for proceedings under the General Las or Special Laws. .
6.4 If we take support from the last order dated 23.09.2021 passed by the Hon'ble Apex Court, as quoted above, though there is specific observations in Para : 3 regarding Section 12A of the Commercial Courts Act, 2015, and therefore by that, in our opinion that itself does not mean to exclude the other provisions of the Commercial Courts Act, 2015 from the applicability of the orders passed by the Hon'ble Apex Court and it is relevant to note that the word 'proceedings' also includes the filing of the pleadings i.e. the written statement in the present case, by the defendant. Therefore, by virtue of the order dated 23.09.2021 passed by the Hon'ble Apex Court, the defendant is entitled to get benefit. Moreover, it is profitable to refer to the word 'proceedings' from the Black's Law Dictionary (8 th Edition), where the meaning of the word 'proceedings' is explained as under.
"proceedings : 1. The regular and orderly progression of a lawsuit, including all acts and events between the time of Page 15 of 18 Downloaded on : Wed Jan 12 14:42:41 IST 2022 C/SCA/14667/2021 CAV JUDGMENT DATED: 24/12/2021 commencement and he entry of judgment.
2. Any procedural means for seeking redress from a tribunal or agency. 3. An act or step that is part of a larger action. 4. The business conducted by a court or other official body; a hearing. 5. Bankruptcy. A particular dispute or matter arising within a pending case - as opposed to the case as a whole.
"'Proceeding' is a word much used to express the business done in courts. A proceeding in court is an act done by the authority or direction of the court, express, or implied. It is more comprehensive than the word 'action', but it may include in its general sense all the setps taken or measures adopted in the prosecution or defense of an action, including the pleadings, and judgment. As applied to actions the term 'proceeding' may include - (1) the institution of the action; (2) the appearance of the defendant; (3) all ancillary or provisional steps, such as arrest, attachment of property, garnishment, injunction, writ of ne exeat; (4) the pleadings; (5) the takign of testimony before trial; (6) all motions made in the action; (7) the trial; (8) the judgment; (9) the execution; (10) proceedings supplementary to exsecution, in code practice; (11) the taking of the appeal or writ of error; (12) the remittitur, or sending back of the record to the lower court from the appellate or reviewing court; (13) the enforcement of the judgment, or a new trial, as may be directed by the court of last resort.""
6.5 Therefore, we find that the reasons given by the trial Court while considering Exh.18 are erroneous and the trial Court has not taken into consideration the directions given in the orders of the Hon'ble Apex Court dated Page 16 of 18 Downloaded on : Wed Jan 12 14:42:41 IST 2022 C/SCA/14667/2021 CAV JUDGMENT DATED: 24/12/2021 23.09.2021 as well as the order dated 23.03.2020. Therefore, the impugned order requires to be set aside, as there is apparent error committed by the trial Court by not allowing the written statement at Exh.18 filed by the defendant to take on record.
6.6 Moreover, the trial Court has relied on the judgment reported in (2019) 12 SCC 210, which is otherwise applicable under normal circumstances prior to 15.03.2020, but during the pandemic situation, the Hon'ble Apex Court has passed the several orders for exclusion of the period of limitation, but here, admittedly, the next date of hearing of the matter is 26.03.2020, which is after the first order passed by the Hon'ble Apex Court and it is undisputed fact that during that time and thereafter also, for several months, there was strict lockdown in the State as well as in the entire country and the Courts were not working physically for certain period. Therefore, on equitable ground also and in view of the several orders passed by the Hon'ble Apex Court, the written statement, which is filed by the present petitioner at Exh.18 in the Commercial Suit No.478 of 2021 is required to be taken on record. Therefore, the impugned order passed by the trial Court needs to be set aside.
7. In view of above, the following order is passed.
7.1 This petition is allowed.
7.2 The impugned judgment and order passed by the 3 rd Additional Senior Civil Judge and Additional Chief Judicial Magistrate, Surat in Commercial Suit No.478 of 2021 dated Page 17 of 18 Downloaded on : Wed Jan 12 14:42:41 IST 2022 C/SCA/14667/2021 CAV JUDGMENT DATED: 24/12/2021 23.07.2021, below Exh.18, is hereby quashed and set aside.
7.3 Consequently, the trial Court concerned shall proceed with the matter being Commercial Suit No.478 of 2021, after considering the written statement at Exh.18 on record.
7.4 The parties shall cooperate in the adjudication of Commercial Suit No.478 of 2021 before the trial Court concerned.
7.5 Rule is made absolute to the aforesaid extent.
Sd/-
(N.V.ANJARIA, J) Sd/-
(SANDEEP N. BHATT,J) M.H. DAVE Page 18 of 18 Downloaded on : Wed Jan 12 14:42:41 IST 2022