Gujarat High Court
Gujarat State Electricity Corporation ... vs Vipulkumar Rameshchand Jain on 19 September, 2018
Author: Akil Kureshi
Bench: Akil Kureshi, B.N. Karia
C/SCA/14422/2018 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 14422 of 2018
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GUJARAT STATE ELECTRICITY CORPORATION LTD
Versus
VIPULKUMAR RAMESHCHAND JAIN
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Appearance:
MR DIPAK R DAVE(1232) for the PETITIONER(s) No. 1
for the RESPONDENT(s) No. 1,2
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CORAM: HONOURABLE MR.JUSTICE AKIL KURESHI
and
HONOURABLE MR.JUSTICE B.N. KARIA
Date : 19/09/2018
ORAL ORDER
(PER : HONOURABLE MR.JUSTICE AKIL KURESHI)
1. Petitioner - Gujarat State Electricity Corporation Ltd., has filed this petition challenging the order dated 10.8.2018 passed by the Commercial Court, Vadodara in Civil Misc. Application No.36 of 2018. Brief facts are as under :
2. Petitioner had filed a Civil Suit against the respondents which was transferred to the Commercial Court upon its establishment. According to the petitioner, despite due service of summons on the defendants there was no appearance and participation by the defendants in the said suit upon which after detailed consideration the Commercial Civil Page 1 of 5 C/SCA/14422/2018 ORDER Suit No.111 of 2016 came to be decreed in favour of the plaintiff on 8.5.2017. Plaintiff was held entitled to recover a sum of Rs.5,73,89,999/ from the defendant No.1 alongwith interest against the defendant No.1 i.e. present respondent No.1.
3. The respondent No.1 - original defendant No.1 thereafter filed application for setting aside such decree. Since there was delay in filing such application, the defendant No.1 also filed Commercial CMA No.36 of 2018 seeking condonation of delay. This application was strongly opposed by the petitioner Corporation, inter alia, on the ground that the delay was inordinate and it was not properly explained. The Commercial Court by the impugned order condoned the delay by imposing cost of Rs.1,50,000/. This order, the petitioner Corporation has challenged in this petition.
4. Appearing for the petitioner learned advocate Shri Dipak Dave vehemently contended that the learned Judge committed a serious error in condoning the delay which was inordinate and was otherwise unexplained by merely imposing cost. He therefore contended that the delay was long, there was no Page 2 of 5 C/SCA/14422/2018 ORDER explanation for such long delay and the Court had not given sufficient reasons for condoning such delay.
5. We have perused the documents on record. In the application for condonation of delay the defendant No.1 has stated, inter alia, that the summons of the suit were not served on the applicant and the suit therefore proceeded exparte on 9.8.2017. The said defendant was not aware about the passing of the judgment and decree by the Commercial Court. That a writ petition was filed by the said defendant before the High Court which was dismissed on 9.8.2017 against which Special Leave Petition was filed before the Supreme Court. In the course of such proceedings counter affidavits were filed by the Electricity Corporation on 22.3.2017 and on 2.4.2017 in which reference was made to the judgment and decree of the Commercial Court. The said defendant thereupon inquired about the proceedings and it was only in the first week of May, 2018 that it was communicated to the said defendant that the judgment and decree was passed. It was therefore stated that though the period of limitation for filing application for setting aside exparte decree is thirty days which is Page 3 of 5 C/SCA/14422/2018 ORDER over, the application could not be filed earlier of account of above stated reasons and the copy of the judgment was received only in second week of May, 2018. It was therefore explained that the copy of the judgment was available only on 16.5.2018 which should be treated as date of knowledge of the judgment. At any rate the said defendant learnt about the judgment for the first time on 2.4.2018, when counter affidavit was filed by the Electricity Corporation before the Supreme Court. Broadly in such terms the delay was sought to be explained.
6. The Commercial Court by the impugned order allowed the application for condonation of delay on payment of cost. Reference was made to some of the averments made in the application briefly. Reference was also made to the purshis filed by the applicant to abide by the direction of cost as may be imposed. The learned Judge therefore allowed the application making clear that he had not entered into the merits of the case and the observations are only for the purpose of dealing with the application for condonation of delay.
Page 4 of 5 C/SCA/14422/2018 ORDER7. We do not find any reason to interfere with this order. The Commercial Courts, Commercial Division and Commercial Appellate Division of High Courts Act, 2015 makes specifically such orders of the Court nonappealable or revisable. Writ jurisdiction is more restrictive and recognizes certain inherent limitations. We do not find any jurisdictional error committed by the Court below. The applicant had given sufficient reasons explaining the delay. The expression of the learned Commercial Court in accepting such explanation may not entirely satisfy the petitioner, nevertheless it cannot be stated that the learned Judge committed any serious error in condoning the delay. It is not the case where there was explanation for delay or that such explanation was accepted without reasons. Under the circumstances the petition is dismissed. The learned Judge himself has clarified that he was only dealing with the application for condonation of delay and nothing beyond that i.e. how we have also looked into the matter.
(AKIL KURESHI, J) (B.N. KARIA, J) K.K. SAIYED Page 5 of 5