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2024 DIGILAW 441 (KER)

State of Kerala v. Praveen Kumar T. K. S/o T. K. Vijayan

2024-04-05

C.JAYACHANDRAN

body2024
JUDGMENT : C. JAYACHANDRAN, J. 1. The petitioners herein are the appellants in Commercial Appeal No. 1/2023 of the District Court, Kozhikode and the defendants in Commercial Suit, C.S. No. 109/2020, of the Commercial Court, Kozhikode. Respondent herein is the plaintiff C.S. No. 109/2020. The petitioners are aggrieved by Exts.P7 and P8 orders of the Principal District Court, Kozhikode. The gist of the facts involved in this case is briefed as below: The respondent/plaintiff filed Commercial Suit as C.S. 109/2020 before the Commercial Court, Kozhikode for realisation of money. The plaintiff/respondent was the successful bidder in e-auction, for purchase of teakwood, conducted by rd defendant/Divisional Forest Officer, on behalf of the 1st defendant/State of Kerala. An EMD of Rs. 50,000/- was paid by respondent/plaintiff. Besides, a sum of Rs. 3,00,000/- was also paid towards the value of the material. Alleging that further payment was not made within the time, the above referred amount of rupees 3,50,000/- was forfeited by the State, challenging which, the instant suit was filed. The suit was decreed in favour of respondent/plaintiff vide Ext.P3 judgment. Challenging the same, the petitioners/ defendants preferred Ext.P6 appeal, along with Ext.P5 petition to condone the delay of 102 days in preferring the appeal. Ext.P5 application to condone the delay was dismissed by the Appellate Court, vide Ext.P7. Consequently, Ext.P6 appeal was also dismissed, vide Ext.P8 order. Exts.P7 and P8 are under challenge in this Original Petition. 2. Heard Sri. T.P. Sajan, learned Special Government Pleader for the petitioners and Sri. A. Komu, learned counsel for the respondent. 3. Learned Government Pleader based their contention upon a decision of the Hon’ble Supreme Court in Government of Maharashtra vs. M/s Borse Brothers Engineers and Contractors Pvt. Ltd. 2021 KHC 6175, wherein a liberal approach in condoning delay is called for, if no negligence and laches on the part of petitioner is found. The reason espoused by the petitioners for condoning the delay is that the office of the Government Pleader met with a technical failure, resulting in delay in e-filing the appeal memorandum, which according to the petitioners is a genuine reason for condonation of delay of 102 days. 4. Learned counsel for the respondent strongly opposed the aforesaid contentions and placed a few decisions for consideration of this court. 4. Learned counsel for the respondent strongly opposed the aforesaid contentions and placed a few decisions for consideration of this court. The counsel contended that the reason espoused by the petitioners is not a valid ground for condoning the delay and setting aside orders of dismissal of delay petition and appeal. Section 5 of Limitation Act is generally given a liberal interpretation, but the same cannot be adopted in case of commercial disputes, having regard to the legislative intent with which Commercial Courts Act was enacted. It was emphasised that the enactement contemplates adjudication of disputes in a swift, time-bound manner, with lesser hassles to the litigating parties. At best, a short delay, beyond the stipulated period, can be condoned, whereas in the instant case, the delay is more than double the period stipulated by the statute, which cannot be condoned at all, is the contention urged. 5. Having heard the learned Government Pleader and learned counsel for the respondent, this court, endorses the submission made the learned counsel for the respondent/plaintiff. This court notice that the statutory time limit for filing a commercial appeal under section 13 of Commercial Courts Act, 2015 is sixty days. In this case, Ext.P6 appeal was filed with a delay of 102 days. The reason espoused is an alleged technical error occurred in e-filing. In the decision relied upon by the petitioners in M/s Borse Brothers (supra), the Court observes as below: “61. Given the aforesaid and the object of speedy disposal sought to be achieved both under the Arbitration Act and the Commercial Courts Act, for appeals filed under section 37 of the Arbitration Act that are governed by Articles 116 and 117 of the Limitation Act or section 13(1A) of the Commercial Courts Act, a delay beyond 90 days, 30 days or 60 days, respectively, is to be condoned by way of exception and not by way of rule. In a fit case in which a party has otherwise acted bona fide and not in a negligent manner, a short delay beyond such period can, in the discretion of the court, be condoned, always bearing in mind that the other side of the picture is that the opposite party may have acquired both in equity and justice, what may now be lost by the first party's inaction, negligence or laches.” (Underlined by me, for emphasis) 6. From the above authoritative pronouncement, this Court notice a paradigm shift in the approach of the courts, in the matter of condonation of delay in commercial matters governed by the Commercial Courts Act. The object and purpose of the Act is surely a matter to be borne in mind, while interpreting any provision under the particular statute. This Court notice that, a period of 60 days is stipulated under Section 13 of the Commercial Courts Act for preferring a commercial appeal. Unlike in the case of Section 34 of the Arbitration Act, no further period is stipulated for preferring a commercial appeal. It could therefore possibly be contented that Section 5 of the Limitation Act may apply, which doctrines the concept of sufficient cause. The obvious purpose is to mitigate the hard ship of a suitor from the rigours of limitation, when the party may have a justifiable reason for not approaching the court on time. Indian Courts have consistently adopted a liberal approach in condoning the delay, applying Section 5 of the Limitation Act. However, as referred above, the paradigm shift is clearly indicated and adopted by the Hon'ble Supreme Court, once it comes to adjudication of commercial matters under the Commercial Courts Act, wherein expediency and quick resolution is the hall mark. A liberal approach, as is taken usually, may perhaps defeat the very purpose of the statute. 7. Coming to the facts at hand, this Court notice that, the delay sought to be condoned is 102 days, which commence on the expiry of the stipulated period of 60 days under Section 13 of the Act. It could thus be seen that, the delay sought to be condoned is more than double the original period stipulated, i.e. 60 days. Such delay cannot be condoned, going by the above authoritative pronouncement of the Hon'ble Supreme Court in M/s Borse Brothers (supra). 8. Apart from the above legal angle, this Court is not satisfied with the facts as well. The reason espoused is a technical error in e-filing. Had it been true and genuine, recourse should have been made by the appellants to seek a permission from the court concerned, so as to enable physical filing, pointing out the error in e-filing and also sensitizing the Court regarding the limitation period. No such action is seen initiated by the appellant, so as to establish bona-fides. 9. Had it been true and genuine, recourse should have been made by the appellants to seek a permission from the court concerned, so as to enable physical filing, pointing out the error in e-filing and also sensitizing the Court regarding the limitation period. No such action is seen initiated by the appellant, so as to establish bona-fides. 9. In the above referred facts and circumstances, this Court finds no reason to interfere with Exts.P7 and P8 orders of the appellate Court. In the result, this Original Petition fails and the same will stand dismissed.