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Gauhati High Court · body

2019 DIGILAW 1049 (GAU)

G. & T. Resources Worldwide v. Naveen Goenka

2019-09-16

ACHINTYA MALLA BUJOR BARUA

body2019
JUDGMENT AND ORDER : 1. Heard Mr. S.K. Gandhi, learned counsel for the petitioners. Also heard Mr. G.N. Sahewalla, learned senior counsel for the respondents. 2. Money Suit No. 24/2010 was instituted in the court of the learned Civil Judge, Dibrugarh seeking a decree for an amount of Rs. 1, 17,77,071. Initially although the money suit was instituted as a money suit simpliciter in a civil court under the Code of Civil Procedure, but subsequently the Petition No. 1660/2016 was filed by the plaintiff seeking that the suit be transferred to the Commercial Court as constituted under the Commercial Courts Act, 2015. To such prayer made in the petition, the defendant also agreed and accordingly by the order dated 3.5.2016 the proceeding was transferred to the Commercial Court and was renumbered as M.S.(C) Case No. 1/2016 (new) in the Court of the District Judge, Dibrugarh which was also designated as a Commercial Court. In course of the proceeding before the Commercial Court, it is admitted by the parties that from 23.2.2016 to 29.9.2018, the defendants had got the matter adjourned for the defence witnesses to be examined and in the process 13 dates had gone by. But be that as it may, the learned Commercial Court subsequently allowed the evidence of the DW-1 to be taken before the Advocate Commissioner and the cross-examination was also completed on 8.10.2018. The next date before the learned Commercial Court was fixed on 31.10.2018 on which date the defendants intended to examine their further witnesses, but by the order dated 31.10.2018 the prayer of the defendants to examine the DW-2 stood rejected. In the order dated 31.10.2018 while rejecting the prayer for examining the DW-2 the learned Commercial Court provided as follows: “It is apparent that the defendant has adopted every possible measure to procrastinate this case. Earlier this case was continuously fixed for case management hearing since 2.5.2018, but the defendant neglected to be present for case management hearing on some pretext or the other. This case of commercial dispute is pending since 27.9.2010, i.e., for 8 long years. At this fag end the defendant has prayed to adduce the evidence of another witness and submitted evidence-in-chief through affidavit. Although this witness is a listed witness, his evidence-in-chief was not submitted earlier and no cause was shown why earlier his evidence-in-chief was not submitted.” 3. This case of commercial dispute is pending since 27.9.2010, i.e., for 8 long years. At this fag end the defendant has prayed to adduce the evidence of another witness and submitted evidence-in-chief through affidavit. Although this witness is a listed witness, his evidence-in-chief was not submitted earlier and no cause was shown why earlier his evidence-in-chief was not submitted.” 3. A reading of the provision of the order dated 31.10.2018 would show that the learned Commercial Court was of the view that the present is a commercial dispute which has been pending since 27.9.2010, i.e., for 8 long years. 4. The learned Commercial Court also took note of that earlier the case was continuously fixed for hearing, but the defendants failed to remain present on one pretext or the other. We have taken note of that the core reason for the learned Commercial Court to reject the evidence of DW-2 was that on the prior dates the defendants had taken time on a number of occasions for bringing in the defence witnesses. But at the same time, we also take note of that the stage at which the delay was caused in getting the defence witnesses was already over and thereafter they were also allowed to examine the DW-1 which stood completed on 8.10.2018. If the earlier conduct of the defendants stood condoned by allowing the DW-1 to give his evidence, we do not find any reason as to why by taking recourse to the earlier conduct of the defendant where adjournments were sought on a number of occasions, the other witnesses of the defendant should not now be allowed to be examined. We do not find anything from the records that there was any subsequent attempt by the defendant to delay the matter after 8.10.2018 when the evidence of DW-1 was closed. 5. But, however, Mr. G.N. Sahewalla, learned senior counsel for the respondents has raised an objection on the maintainability of this revision petition under article 227 of the Constitution of India by relying upon the provision of section 8 of the Commercial Courts Act, 2015. Section 8 of Commercial Courts Act is as follows:— “8. 5. But, however, Mr. G.N. Sahewalla, learned senior counsel for the respondents has raised an objection on the maintainability of this revision petition under article 227 of the Constitution of India by relying upon the provision of section 8 of the Commercial Courts Act, 2015. Section 8 of Commercial Courts Act is as follows:— “8. Bar against revision application or petition against an interlocutary 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.” 6. The provisions of section 8 begins with a non-obstante clause by providing that 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 its jurisdiction and any such aspect if required to be assailed can now be raised only in an appeal against the decree of the Commercial Court. 7. In the instant case, firstly, we have taken note of that the Money Suit 24/2010 was initially not filed under the Commercial Courts Act, 2015, and on the other hand it stood transferred to the Commercial Court only upon an agreement between the parties as per the order dated 3.5.2016. The entire procedure for a proceeding under the Commercial Courts Act, 2015 had been provided by amending the relevant provisions of the Code of Civil Procedure and the procedure to be followed points towards the existence of an urgency in bringing the commercial litigation to an end at the earliest. But again when the matter was initially filed under the Code of Civil Procedure and subsequently stood transferred to the Commercial Court, all such procedures applicable under Commercial Courts which facilitates such expediency in disposing of the matter cannot wholly be made applicable as because of the earlier initiation and pendency of the proceeding under the Code of Civil Procedure. But again when the matter was initially filed under the Code of Civil Procedure and subsequently stood transferred to the Commercial Court, all such procedures applicable under Commercial Courts which facilitates such expediency in disposing of the matter cannot wholly be made applicable as because of the earlier initiation and pendency of the proceeding under the Code of Civil Procedure. But be that as it may, what we take note of that this is a proceeding under article 227 of the Constitution of India, and the jurisdiction of the High Court under article 227 of the Constitution of India in a situation where the statute bars the exercise of the revisional power had been provided in paragraph-6 of the pronouncement of the Supreme Court in Jagir Singh v. Ranbir Singh, (1979) 1 SCC 560 , wherein it is provided as follows:— “6…. Where the statute banned the exercise of revisional powers by the High Court, it would indeed require very exceptional circumstances to warrant interference under article 227 of the Constitution, since the power of Superintendence was not meant to circumvent statutory law.” 8. The Supreme Court had clearly provided that interference under article 227 can still be done in spite of there existing a bar of a revision under the appropriate statute, if a very exceptional circumstance to warrant such interference is made out in the facts and circumstances of a given case. In the present case, we have already taken note of that although the delay had been caused by the defendants in bringing their witnesses for evidence, but in spite of such delay, the evidence of the DW-1 was allowed and completed in the meantime. If the evidence of DW-1 was allowed in spite of such delay being caused, we see no reason as to why now the evidence of DW-2 is not to be allowed by relying upon the earlier conduct of the defendant in causing the delay. This in our view would amount to an exceptional circumstance requiring the court to interfere in exercise of its revisional jurisdictional under article 227. 9. But, however, we also take note of that this is a commercial dispute involving a value of approximately 1,17,77,071 and any delay caused by the defendant gives them the benefit of the money being retained for their own use for the period so delayed. 9. But, however, we also take note of that this is a commercial dispute involving a value of approximately 1,17,77,071 and any delay caused by the defendant gives them the benefit of the money being retained for their own use for the period so delayed. Accordingly, we are of the view that interest of justice would be met if the undue financial gain accrued to the defendants by causing the delay in not examining the defence witness on time is offset by imposing an adequate amount of cost. The gain that may have been accrued to the defendants by retaining the money claimed for a period of one month comes out to be approximately Rs.58,000 as stated by Mr. G.N. Sahewalla, learned senior counsel. Accordingly, we impose a cost of Rs.50,000 on the petitioner-defendant to be paid to the respondent-plaintiff on or before the next date fixed. Upon proof of the cost being paid, the parties along with their witnesses shall appear before the Commercial Court on 3.10.2019. Upon appearance of the parties and the witnesses, the Commercial Court shall cause the evidence to be taken on the same date fixed either by itself or through an advocate as may be convenient. It is again provided that if the DW-2 does not subject himself for such examination on the date fixed, no further time shall be granted for the purpose. 10. The petitioner is allowed to the extent as indicated above. Interim order, if any, passed earlier stands vacated.