TaxTMI 
TaxTMI 
2025 (2) TMI 1202
X X X X Extracts X X X X
X X X X Extracts X X X X
....espondent has raised the question of maintainability of the appeal. Mr. Bose has relied upon the proviso to Section 13 (1-A) of the Commercial Courts Act, 2015 to argue that an appeal can lie only from such orders as are specifically enumerated under Order XLIII of the Code of Civil Procedure. The learned senior counsel has also referred to Section 13(2) of the said Act to show that no appeal can lie from any order or decree otherwise than in accordance with the provisions of the said Act and the said sub-section has specifically excluded application of Letters Patent of a High Court. The learned Senior Counsel has placed reliance on the decision of the Hon'ble Supreme Court in Kandla Export Corporation & Anr. V. OCI Corporation & Anr. 2018 (14) SCC 715 paragraphs 13 and 14 in support of the said submission. 4. However, we invited the learned counsel for the parties to argue on the issue of maintainability as well as on merits. 5. Mr. S.N. Mitra, learned senior counsel appearing on behalf of the appellant has submitted that the Commercial Courts Act has not specifically dealt with the right of the plaintiff to file additional pleading there has been no amendments to the C....
X X X X Extracts X X X X
X X X X Extracts X X X X
....of the High Court at Calcutta in exercise of Section 18 of the Commercial Courts Act 2015, have not dealt with the delay in filing reply to the counter statement. No amendment has been carried out in its Original Side Rules after the Commercial Courts Act, 2015 was enacted. The provision for subsequent pleadings under Order VIII Rule 9 CPC applies only to pleadings subsequent to the filing of written statement. However, it does not apply to an additional written statement. In terms of Order VIII Rule 9 of CPC both plaintiff and defendant cannot file any pleading after written statement(s) have been filed, except with the leave of the Court and upon such terms as the Courts thinks fit. The Court may, at any time require written statement or additional written statement of any of the parties and fix a time not more than 30 days for presenting the same under Order VIII Rule 9 of the CPC. After written statement and/or additional written statement is/are filed subsequent pleadings in the form of additional written statement or additional reply statement cannot be allowed to be filed at any stage except with the leave of the Court and upon such terms as the Court thinks fit. Under the C....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ation in the Commercial Courts Act, the power of the Court for the purpose of filing an additional written statement shall either be governed by the provisions of the Code of Civil Procedure or Original Side Rules as the case may be and hence, the interpretation of the learned Single Judge with regard to the timeline within which additional written statement is required to be filed is erroneous. 10. It is submitted that in any event rules of procedure are handmaid of justice and intended to sub-serve the cause of justice and Order VIII Rule 1 has to be read with the other provisions. The said amendment is not intended to override other provisions of CPC as observed in Prakash Corporates v. Dee Vee Projects Ltd. 2022 (5) SCC 112 11. Mr. Mitra has referred to a Division Bench judgment in Nasima Naqi vs. Todi Tea Company Limited and Others 2018 SCC OnLine Cal 16823 to argue that when the Code of Civil Procedure clearly mentions the manner in which an additional pleading is required to be filed and the duty of the Court in this regard, all other provisions taking away such right, if any, should be excluded. In other words, it is contended that Order VIII Rule 6A(3) does not menti....
X X X X Extracts X X X X
X X X X Extracts X X X X
....in the said proviso which would seem to indicate that it dilutes the effect of Sub-Section (1)(A) of Section 13. Mr. Mitra in this regard has referred to paragraphs 23 to 27 of a Division Bench judgment of Delhi High Court in D & H India Ltd. vs. Superon Schweisstechnik India Ltd. 2020:DHC:1726-DB. 14. Per contra Mr. Utpal Bose, learned Senior Counsel has submitted that apart from the fact that the appeal in not maintainable in view of the ratio of the decision in Kandla Export Corporation & Anr. (supra) under the Original Side Rules of the High Court at Calcutta there is a clear provision in Chapter 9 Rule 12A which requires the plaintiff to file a written statement in answer to the counter claim within 10 days of receipt of the notice of the filing of the counter claim or within such further time as may be allowed. No application was filed upon the expiry of the initial period of 10 days for extension of time to file reply to the counter statement. The learned senior counsel has referred to the order passed by Hon'ble Justice Arindam Mukherjee on 13th July 2023, by which the time to file written statement with counter claim was extended by an order dated 13th July 2023. Ou....
X X X X Extracts X X X X
X X X X Extracts X X X X
....m 1st February, 1977. Order VIII Rule 9 of the Code of Civil Procedure contemplates that the court may at any time require a written statement or additional written statement from any of the parties and fix a time not more than 30 days for presenting the same. This provision does not in any event enlarge the time limit fixed under Order VIII Rule 1 as amended by the Commercial Courts Act, 2015. The counter claim in a written statement is treated as a plaint and the plaintiff may file an additional written statement in answer to the said counter claim in view of the fact that the suit was filed in the original side of the High Court. The procedures insofar as filing, scrutiny and other related matters are concerned in absence of any practice directions shall be governed by the Original Side Rules unless these rules are not in conflict with the procedure prescribed under the Commercial Courts Act. 18. As mentioned above, Rule 12 A of the Original Side Rules gives the time limit within which a reply to the counter claim in a written statement is to be filed. The said rule is as follows: "12A. The plaintiff shall be entitled to file a written statement in answer to the coun....
X X X X Extracts X X X X
X X X X Extracts X X X X
....22 during the Covid-19 pandemic vis- -vis limitation period for filing written statement in a Commercial dispute. The Apex Court answered the issue in paragraphs 37 and 38 in the following words: "37. As noticed from the relevant parts of the order dated 5-4-2021 (vide paras 16 and 17 hereinabove) that at the relevant time, limited number of courts were to function on rotational basis in Raipur and that too, with curtailed working hours from11.00 a.m. to 2.00 p.m.; and they were to function during full working hours only for bail and remand matters. Having regard to the situation prevalent at the relevant time and the contents as also spirit of the administrative order issued by the jurisdictional High Court, there is nothing to doubt that w.e.f. 6- 4-2021, the Court in question could not have been considered functioning normally; and that period of operation of the said administrative order dated 5-4-2021 could have only been considered dies non juridicus for the purpose of the prescribed period for doing anything in the proceedings in that Court. 38. It has not been pointed out if, as on 6-5-2021, the said order dated 5-4-2021 had been withdrawn and the situatio....
X X X X Extracts X X X X
X X X X Extracts X X X X
....enticated copy thereof, the time to file reply to the counter statement shall arise and the period of 120 days is required to be calculated from the date of service of such authenticated copy of the written statement along with counter claim. Having regard to the fact that no rule in exercise of power conferred under Section 18 on the issue has been framed and the existing Original Side Rules on this issue is silent on scrutiny we issue the following practice directions in line with Mr. M. Maria Albert Stanly (supra) till appropriate rules are framed: (i) The Commercial Division of this court with effect from 1st March, 2025 shall scrutinize every counter claim filed and shall follow the same procedure as applicable to scrutiny of a plaint before service of summons. (ii) After scrutiny of the counter claim filed by the defendant the registry of the commercial division shall within seven working days serve notice of such counter claim along with a copy thereof on the plaintiff or his advocate on record in the same manner as provided for suits in commercial disputes. (iii) All curable defects shall be removed by the defendant/s within a fortnight from the d....
X X X X Extracts X X X X
X X X X Extracts X X X X
....e of J&K, 1957 SCR 51 : AIR 1957 SC 281 : 1957 Cri LJ 404], SCR p. 59 : AIR p. 284, para 8). Bhagwati, J., in Ram Narain Sons Ltd. v. CST [Ram Narain Sons Ltd. v. CST, (1955) 2 SCR 483 : AIR 1955 SC 765], said : (SCR p. 493 : AIR p. 769, para 10) '10. It is a cardinal rule of interpretation that a proviso to a particular provision of a statute only embraces the field which is covered by the main provision. It carves out an exception to the main provision to which it has been enacted as a proviso and to no other.' 10. Lord Macmillan in Madras & Southern Mahratta Railway Co. Ltd. v. Bezwada Municipality [Madras & Southern Mahratta Railway Co. Ltd. v. Bezwada Municipality, 1944 SCC OnLine PC 7: (1943-44) 71 IA 113] laid down the sphere of a proviso as follows : (IA p. 122 : SCC OnLine PC) '... The proper function of a proviso is to except and deal with a case which would otherwise fall within the general language of the main enactment, and its effect is confined to that case. Where, as in the present case, the language of the main enactment is clear and unambiguous, a proviso can have no repercussion on the interpretation of the main enactment, s....
X X X X Extracts X X X X
X X X X Extracts X X X X
....llowing observation:- "Our conclusion, therefore, is that Section 39 of the Arbitration Act is sufficiently explicit to include an appeal under Clause 15 of the Letters Patent as well as the provisions of Clause 15 of the Letters Patent have to be taken subject to the Legislative Powers of the Governor General in Legislative Council. We must hold that to this extent the right of appeals has been curtained and modified." 29. The said decision has been quoted with approval by the Madras High Court in the case of (11) Penugouda Radhakrishna Murthy v. V.A.Y. Ethirajulu Chetty, reported in AIR 1945 Madras 184. In the case of (12) Ranchhoddas Purshottam& Co. v. Ratanji Virpal & Co. reported in AIR 1943 Bombay 196, the Division Bench of the Bombay High Court felt that in view of the provisions contained in Sub-section (2) of Section 39 of the Arbitration Act no appeal lies to the Privy Council from an order passed by a Single Judge under Section 33 challenging the validity of an Arbitration agreement as no appeal is provided for against it by Section 39(1). In the case of (13) Madhavdas Devidas and Ors. v. Vithaldas Vasudeodas &Ors., reported in AIR 1952 Bombay 229 a Div....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... to include the reservation clause in the provisions relating to appeals in the Arbitration Act of 1940, the conclusion is inevitable that it was so done with a view to restrict the right of appeal within the strict limits defined by Section 39 and to take away the right conferred by other statutes. The Arbitration Act which is a consolidating and amending Act, being substantially in the form of a code relating to arbitration must be construed without any assumption that it was not intended to alter the law relating to appeals. The words of the statute are plain and explicit and they must be given their full effect and must be interpreted in their natural meaning, uninfluenced by any assumptions derived from the previous state of the law and without any assumption that the legislature must have intended to leave the existing law unaltered. In our view the legislature has made a deliberate departure from the law prevailing before the enactment of Act X of 1940 by modifying the law relating to appeals in Section 39". 31. The Supreme Court followed the aforementioned decision and reiterated its views in no uncertain terms in the case of State of West Bengal v. M/s. Gourangala....