No Court can grant any extension of limitation against the provisions of the act: High Court of Chhattisgarh

1AFRHIGH COURT OF CHHATTISGARH BILASPUR W.P.(227) No. 3121Prakash Corporates T 16 Raheja Tower Fafadih Raipur 492001Chhattisgarh Through Its Partner Namely Shri Shailesh Kumar GoyalS o Shri Bhimsen Goyal Aged About 37 Years T 16 Raheja Tower Fafadih Raipur District Raipur ChhattisgarhPetitionerVersus Dee Vee Projects Limited Through Its Director 1st Floor VikasComplex Power House Road Korba 495678 Chhattisgarh RespondentFor Petitioner Mr. Manoj Paranjpe Advocate.For respondent caveator Mr. Amrito Das and Mr. Rishabh Garg Advocate.Hon ble Shri Justice Rajendra Chandra Singh SamantOrder on Board09 07 20211.This petition under Article 227 of Constitution of India has been broughtbeing aggrieved by the order dated 22.06.2021 passed in Civil SuitNo.01 B 2021 by the Criminal Court District Raipur C.G. by which theopportunity of the petitioner defendants for filing written statement wasclosed. 2.It is submitted by the learned counsel for the petitioner that therespondent has filed a Civil Suit in No.01 B 2021 before the CriminalCourt Raipur C.G.. The petitioner defendant received the summons on 26th January 2021. The time for filing written statement was extended for120 days which got expired on 06.05.2021. The case was listed on15.04.2021 and on that date the case was fixed for arguments on theapplication under Section 10 read with Section 151 of C.P.C. andapplication under Order 38 Rule 5 read with Section 151 of C.P.C. on22.06.2021. No last opportunity was given by the Commercial Court tothe petitioner for filing of written statement and on 06.05.2021 the Courtwas closed due to the imposition of lock down in corona pandemiccontrol measure. 3.In the impugned order the learned Commercial Court has held thataccording to the proviso under Order VIII Rule 1 of C.P.C. incorporatedin Commercial Courts Act after the expiry of 120 days from the date ofservice of summons the right of defendants to file written statementstands forfeited and therefore the opportunity of filing written statementby the petitioner was closed. It is submitted by the learned counsel forpetitioner that on 22.06.2021 the petitioner filed application seekingtime to file written statement on the medical ground as the learnedcounsel for the petitioner was in quarantine. The learned trial Court hasnot given any consideration on this prayer of the petitioner. The Hon bleSupreme Court has in Suo moto WritNo. 020 has orderedthat while computing the period of limitation prescribed in general lawand special Acts the period between 15.03.2020 to 14.03.2021 shallstand excluded. On 27.04.2021 the suspension of limitation undergeneral or special laws was further extended and the matter was listedfor 19.07.2021. Hence on the basis of this order of the Supreme Court the limitation that has been counted without taking into consideration ofthe period of lock down is erroneous. 4.Reliance has been placed on the judgment of Supreme Court in thecase of S.S. Group Pvt. Ltd. Vs. Aaditiya J. Garg and Anr. reported in 32020 SCC Online SC 1050 and the judgment of Supreme Court inKailash Vs. Nanhku & Ors. reported in4 SCC 480. It issubmitted that in the case of S.C.G. ContractsPrivate LimitedVs. K.S. Chamankar Infrastructure Private Limited & Ors. reported in(2019) 12 SCC 210. The Supreme Court granted liberty to the defendantand ordered that the written statement that was already produced to betaken on record. Therefore it is prayed that this petition may beadmitted and petitioner may be granted opportunity to file writtenstatement in the Civil Suit before the Commercial Court. 5.Shri Amrito Das learned counsel for the respondent has appeared oncaveat and he opposes the petition and the submissions made in thatrespect and submits that the present petition under Article 227Constitution of India is not maintainable. Section 13(1)(A) of CommercialCourts Act Specifically provides that “Any person aggrieved by thejudgment or order of a Commercial Court at the level of District Judgeexercising original civil jurisdiction or as the case may be CommercialDivision of a High Court may appeal to the Commercial AppellateDivision of that High Court.” Therefore the impugned order isappealable. Hence in such a case the appeal shall be maintainableagainst the impugned order under Order 43 of C.P.C. and the sameshall be heard by a Commercial Appellate Division Bench of the HighCourt. Therefore there is no provision for hearing of such cases by aSingle Judge. The amended provision of the C.P.C. filed under Section16 of the Act 2015 does not leave any scope of condonation of delay. Itis submitted that in the case of S.C.G. ContractsPrivate Limited(Supra) the Supreme Court is very clear on this point that theCommercial Court has no power to extend the time given beyond theperiod of 120 days. The opportunity that was given to the defendant inthat case was a singular incident and does not lay down any precedent. 4Further the defendant in that case had already filed the writtenstatement in the present case the petitioner has still not filed any writtenstatement. In the case of Sagufa Ahmed & Ors. Vs. Upper AssamPolywood Products Private Limited & Ors. reported in2 SCC317 the Supreme Court has considered and it has been observed thatthe order in Sou moto is only for the purpose of extension of period oflimitation and not to condone the delay. The time provided for filing ofreply is prescribed period and therefore this has to be not a limitation which is not covered under the order of Suo moto WritNo.03 of2020. 6.It is further submitted that the petitioner was granted sufficient time forfiling of written statement and on the date fixed the Courts was notclosed. The grounds taken for non submission of reply are baseless. Onthe last date on which the case was fixed for hearing i.e. 22.06.2021 again the written statement was not filed and the limitation for filingwritten statement had already expired on 06.05.2021. It is submitted thatif such delay in filing of written statement condoned then the object ofthe Act 2015 will be frustrated. Hence the impugned order has beenrightly passed. Therefore it prayed that this petition may be dismissedat motion stage. 7.In reply it is submitted by the learned counsel for the petitioner that theproviso of Section 13(1)(A) provides that an appeal shall lie from suchorders passed by a Commercial Division of a Commercial Court that arespecifically enumerated under Order 43 of C.P.C. as amended by thisAct and Section 37 of Arbitration and Conciliation Act. There is a clearorder of the Supreme Court in Sou moto case extending the period oflimitation. 8.Reliance has been placed on the judgment of the Supreme Court in thecase of New India Assurance Company Limited Vs. Hilli 5Multipurpose Cold Storage Private Limited reported in5 SCC757. It is again submitted that the order in Suo moto Writ Petitionregarding extension of limitation is applicable in this case. Therefore itis prayed that this petition may be allowed and relief be granted to thepetitioner.9.Heard learned counsel for the parties and perused the documentspresent on record.10.Considered on the point of the maintainability. Section 13(1)(A) ofCommercial Courts Act 2015Private Limitedis very clearthat the right to file written statement stands forfeited after the timeprescribed for filing of written statement and the time extendedaccording to the provisions contained in the enactment. Although thecase was under the provisions of the Consumer Protection Act and thetime for filing of written statement had expired after the completion ofprescribed period and the period that was extended according to theprovision in the Act the Supreme Court then held in paragraph 10: “(10) Several High Court judgments on the amended OrderVIII Rule 1 have now held that given the consequence ofnon filing of written statement the amended provisions of theCPC will have to be held to be mandatory. See Oku TechNo. 3390 of2015 as followed by several other judgments including ajudgment of the Delhi High Court in Maja Cosmetics V. OasisCommercialLtd.”13.The Supreme Court ordered that the written statement filed by theappellant be taken on record. The judgment of Supreme Court in NewIndia Insurance Company Ltd.had been referred to in thejudgment asked in S.S. Group Pvt. Ltd.it is held in paragraph 17: “But we do not think that the appellants can take refugeunder the above order in Cognizance for Extension ofLimitation In re. What was extended by the above order ofthis Court was only “the period of limitation” and not the 7period upto which delay can be condoned in exercise ofdiscretion conferred by the statute. The above order passedby this Court was intended to benefit vigilant litigants whowere prevented due to the pandemic and the lockdown from initiating proceedings within the period of limitationprescribed by general or special law. It is needless to pointout that the law of limitation finds its root in two latinmaxims one of which is vigilantibus et Non dormientibusJura subveniunt which means that the law will assist onlythose who are vigilant about their rights and not those whosleep over them.” Taking into consideration the view settled by theSupreme Court and the applicability of the order of Supreme Court inSuo moto WritNo.020 the glaring fact present in this caseis this that the petitioners have till date not filed any written statement the prescribed time for filing written statement and the time which canbe extended by the Court both have expired. The case was fixed forhearing on 22.06.2021 even on that date the petitioner was not readyand prepared to file the written statement therefore it appears to be acase in which the petitioner is making a prayer for extension oflimitation. No Court can grant any extension of limitation against theprovisions of the enactment under which the case is being consideredand heard. Further it is not a case of condonation of delay as thewritten statement is still not filed. Hence I am of this view that thelearned Commercial Court has not committed any error in rejecting theprayer made by the petitioner for granting time to file written statement.Accordingly no substance is found to be present in this petition hence this petition is dismissed at motion stage.15.Accordingly this petition is disposed off. Sd (Rajendra Chandra Singh Samant)Monika Judge 

Summary: Any extension cannot be granted by the court beyond the time period mentioned as a limitation in the enactment. This is to ensure that the cases do not get piled on and an justice is delivered efficiently. This was decreed by the Hon’ble Justice Shri Rajendra Chandra Singh Samant in the case of Prakash Corporates Vs. Dee Vee Projects Limited [W.P.(227) No.312 of 2021] on the 09th of July 2021 before the Hon’ble High Court of Chhattisgarh at Bilaspur. The brief facts of the case are, the respondent has filed a Civil Suit before the criminal court. The petitioner/defendant received the summons on 6th January, 2021. The time for filing written statement was extended for 120 days which got expired on 06.05.2021. The case was listed on 15.04.2021 and on that date the case was fixed for arguments on the application under Section 10 read with Section 151 of C.P.C. and application under Order 38 Rule 5 read with Section 151 of C.P.C., on 22.06.2021. No last opportunity was given by the Commercial Court to the petitioner for filing of written statement and on 06.05.2021, the Court was closed due to the imposition of lock-down in corona pandemic control measure. In the impugned order, the learned Commercial Court has held that according to the proviso under Order VIII Rule 1 of C.P.C. incorporated in Commercial Courts Act, after the expiry of 120 days from the date of service of summons, the right of defendants to file written statement stands forfeited and therefore, the opportunity of filing written statement by the petitioner was closed. This petition under Article 227 of Constitution of India has been brought being aggrieved by the order dated 22.06.2021 passed in Civil Suit by which the opportunity of the petitioner/defendants for filing written statement was closed. The counsel for the petitioner submitted that the trial court in its order was erroneous since, the Hon’ble Supreme Court has in Suo-moto Writ (Civil) No.-03 of 2020 has ordered that while computing the period of limitation prescribed in general law and special Acts, the period between 15.03.2020 to 14.03.2021 shall stand excluded. On 27.04.2021, the suspension of limitation under general or special laws was further extended and the matter was listed for 19.07.2021. Hence, on the basis of this order of the Supreme Court, the limitation that has been counted without taking into consideration of the period of lock-down.  The counsel for the respondent submitted that, the petitioner has still not filed any written statement. He also submitted that, the order in Sou-moto is only for the purpose of extension of period of limitation and not to condone the delay. The time provided for filing of reply is prescribed period and therefore, this has to be not a limitation, which is not covered under the order of Suo-moto Writ (Civil) No.03 of 2020. It is further submitted that the petitioner was granted sufficient time for filing of written statement and on the date fixed, the Courts was not closed. The grounds taken for non-submission of reply are baseless. The learned judge heard the contentions of both the parties. The court relied on the judgement in Sagufa Ahmed &amp; Ors. Vs. Upper Assam Polywood Products Private Limited &amp; Ors. (2021) 2 SCC 317, Wherein, the court held, “But we do not think that the appellants can take refuge under the above order in Cognizance for Extension of Limitation, In re. What was extended by the above order of this Court was only “the period of limitation” and not the period upto which delay can be condoned in exercise of discretion conferred by the statute. The above order passed by this Court was intended to benefit vigilant litigants who were prevented due to the pandemic and the lockdown, from initiating proceedings within the period of limitation prescribed by general or special law. It is needless to point out that the law of limitation finds its root in two latin maxims, one of which is vigilantibus et Non dormientibus Jura subveniunt which means that the law will assist only those who are vigilant about their rights and not those who sleep over them.”