JHARKHAND URJA UTPADAN NIGAM LTD. & ANR v. M/S BHARAT HEAVY ELECTRICALS LIMITED

10. We are afraid it is difficult for us to take the view that the provision referred to above is mandatory. It comes to this that till the Registry does not provide the copy of the judgment, though not demanded, the period of limitation would not commence from the date of the pronouncement of the judgment.

11. Placing reliance on the decision of Housing Board, Haryana (supra) it has been contended by the appellants herein that where the rules themselves enjoin a duty of communicating any order or judgment that has been passed by a court or forum, then in such cases, the period of limitation prescribed has to be computed from the date of such communication.

12. In Housing Board, Haryana (supra), the facts germane for our consideration are that three appeals were filed before the State consumer commission by the appellants therein. The State consumer commission dismissed all the three appeals on the ground that those were barred by limitation. In appeal before this court, the appellant therein contended that the delay in filing those appeals was on account of the non-availability of the certified copy of the decision rendered by the District Forum which was sought to be challenged. The appellant therein contended that as per Rule 4(10) of the Haryana Consumer Protection Rules, 1988 all orders of the District Forum are required to be signed and communicated to the parties free of charge. However, since the order in question after being pronounced could not be signed due to non-availability of the President of the District Forum the certified copy of the order could not be provided in time. In such circumstances, this Court held that the period of limitation would begin to run only from the date on which the copies of the order were made available. The relevant observations read as under: - “13. In the present case as laid before the State Commission the appellant contended that the order was pronounced by the District Forum in the open court on 22-10-1992, it was not signed and dated as the President had proceeded on leave soon thereafter and therefore, neither the reasons on which the said order was based were known nor a copy thereof was furnished to the appellant-Board so as to know the reasons and contents of the order. It was also the case of the appellant that on an enquiry by the counsel for the appellant-Board he was informed by the stenographer of the President that the order would be dictated and typed after the return of the President and that the copy would be made available to the parties only on 30-10-1992 under the signature of the President and the copy was in fact made available to the counsel for the appellant only on 3-11-

1992. It may be pointed out that Shri Tirath Singh, learned counsel appearing for the appellant-Board before the National Commission had filed his own affidavit affirming these facts which have not been controverted by the respondents. On the contrary the reply filed in this Court by Shri K.C. Chug, President, Housing Board Colony Welfare Association, Kurukshetra on behalf of the respondents has admitted that “in the present case free copies were ready with the office on 30-10-1992 which were collected by the counsel for the answering respondent on 30-10-1992 whereas the counsel for the petitioner got the same on 3-11-1992”. From these facts it is abundantly clear that the copies were duly signed and dated by the members of the forum on 30-10-1992. That being so the period of limitation in view of the above discussion will commence from the date on which the copies of the order were ready and made available i.e. 30-10-1992. In the present case the appeals were filed before the State Commission on 30-11-1992 and since 29-11-1992 was Sunday, the appeals were prima facie within time. In these facts and circumstances there was no question of making any application for condonation of delay in filing the appeals as there was no delay at all.”

13. Although in Housing Board, Haryana (supra) this Court had held that where the provisions enjoin a duty of communicating any order or judgment that has been pronounced, the limitation for challenging the same would begin from the date of such communication, yet the aforesaid observations cannot be construed devoid of the context in which they were made. A close reading of the decision would indicate that in the said case, after the pronouncement of the order, the appellants therein had made active efforts for procuring the said order, and this is evident from the fact that few days after the pronouncement, the counsel of the appellants therein had made inquires as regards the unavailability of the order in response to which he was informed that the order was yet to be signed.

14. Thus, when this Court in Housing Board, Haryana (supra) held that the limitation for challenging the same would begin from the date of such communication, the same would be applicable only where despite best of efforts at the end of the parties in procuring the order the same could not be obtained and thereby resulting in unavoidable delay in the filing of appeals. One of the core tenets of the law of limitation is to enthuse diligence amongst parties as to their rights. The law of limitation cannot be read in such a manner whereby parties stop showing any modicum of regard for their own rights and on the pre-text of untimely communication continue to litigate without being vigilante themselves.

15. Similarly, we find that the reliance by the appellants on the decision of Sagufa Ahmed (supra) is also misplaced. In the said case, this Court while considering Section 421 sub-section (3) of the Companies Act, 2013 held that the period of limitation prescribed therein would start running only from the date on which a copy of the order is made available to the person aggrieved. However, yet again in the said case, the appellants therein had made some efforts to procure a certified copy of the order to be assailed during the period of limitation.

16. In the present case we find that after the order in question came to be pronounced by the Commercial Court, Ranchi, the appellants herein during the limitation period did not bother to even inquire as to why the said order was not available. It was only eight-months after the pronouncement of the said order and almost 150-days after the expiry of the limitation period, that the realization suddenly dawned upon the appellants herein to apply for the certified copy.

17. One of the avowed objects of the provisions of the Commercial Courts Act read with amended provisions of CPC applicable to the Commercial Courts is to ensure that there is no unnecessary delay in disposal of the commercial suit. Once specific time lines are fixed and there is a strict procedure provided in terms of the Commercial Courts Act, parties are by the statute put to notice that they have to very carefully contest the suits filed as commercial suits and that failing to comply with statutory timelines and a strict procedure, certain adverse consequences may flow on account of lack of application by a contesting party.

18. Thus, merely because Order XX Rule I enjoins a duty upon the commercial courts to provide the copies of the judgment that does not mean that the parties can shirk away all responsibility of endeavoring to procure the certified copies thereof in their own capacity. Any such interpretation would result in frustrating the very fundamental cannons of law of limitation and the salutary purpose of the Act, 2015 of ensuring timely disposals.

19. At this stage, we must look into some of the relevant findings recorded by the High Court. The High Court, in para 18 of its judgment, framed the following question for its consideration. Para 18 reads thus: “18. The question for consideration is: “whether the applicants herein can plead that the period of limitation for filing the appeal to Commercial Appellate Division of this Court did not commence at all because the certified copy of the judgment had not been issued to the applicants by the Commercial Courts?””

20. The High Court, thereafter, proceeded to answer the aforesaid question as under: “19. In order to answer this question, we cannot lose sight of the whole purpose of enactment of the Commercial Courts Act, 2015 i.e., to provide for speedy disposal of high value commercial dispute.

20. No doubt there was a similar provision in Haryana Consumer Protection Rules, 1988 framed under the Consumer Protection Act, 1986 which was considered by the Supreme Court in the case of Housing Board, Haryana (1 supra). The said provision in the Haryana Consumer Protection Rules, 1988 also provided for communication of the order of the District forum to the parties free of charge in order to avoid the delay as well as to save the parties from the burden of expenses that may he incurred for obtaining the certified copy. The Supreme Court held that the scheme of the Consumer Protection Act was to provide for better protection of the interest of the consumers as a measure for economical and speedy remedy for the settlement of the dispute and the matters connected therewith and therefore, the said rule should be understood in a manner so that it would protect the interest of the parties before the District forum by making it obligatory on the District forum to provide a copy of the order duly signed and dated by the members of the Bench; and the period of limitation prescribed with regard to filing of an appeal under Section 15 of the said Act therefore, has to be computed as commencing from the date of communication of the order in the manner laid down in the rules. It was in that context that it was Held that mere pronouncement of an order in the open Conn would not be enough, but under the scheme of the rules copy of the said judgment has to be communicated to the parties affected by the said order so that the parties adversely affected therefrom may have a fair and reasonable opportunity of knowing the text, reasons and contents thereof so as to formulate grounds of attack before the appellate or before the higher forums. In absence of such communication of signed and dated order, it was held that the parties adversely affected by it will have no means of knowing the contents of the order so to challenge the same and get it set aside by the appellate authority or by the higher forums.

21. Normally petitioners before the District forums under the Consumer Protection Act, 1986 are individuals and not corporate entities like the appellant/instrumentality of the State. So, there is justification for taking the view as regards petitioners in District forums that the provisions in the Haryana Consumer Protection Rules, 1988 which mandated communication of the order of the said forums to the parties free of charge was to save the parties from the burden of expenses that may be incurred for obtaining the certified copy.

22. We are afraid that the logic behind the provision contained in Haryana Consumer Protection Rules, 1988 framed under the Consumer Protection Act. 1986 cannot be applied to the litigants before the Commercial Court. For Commercial entities and in particular litigants like the applicants herein who are the State Government Undertakings, the expenses of obtaining a certified copy of a judgment of the Commercial Court would be very small compared to the stakes involves in the litigation.

23. Therefore, they cannot be put on the same footing as a petitioner before the District Consumer forum; and the logic of counting the period of limitation from the date of communication of the order of consumer forum, cannot be applied to a Commercial dispute to which Commercial entities are parties.

24. In our opinion. Order XX Rule 1 CPC as amended and made applicable to the Commercial Courts is to be treated as only directory and not mandatory. So notwithstanding the provision contained in the amended Order XX Rule 1 CPC (mandating issuance of copies to the parties to the dispute through electronic mail or otherwise), if such copies are not issued within a reasonable time, the parties to the dispute have to apply for the same, and after obtaining it, prefer an appeal within the time prescribed in Section 13(1-A) of the Commercial Courts Act, 2015.

25. This is because the speedy resolution of high value commercial dispute cannot be lost sight of. Such an interpretation would be in tune with the scheme and object of the Commercial Couns Act, 2015 and any interpretation of the nature advanced by the counsel for the applicants would defeat the whole purpose of the object of the Commercial Courts Act. 2015 to provide for speedy disposal of high value commercial disputes.

26. Therefore, we reject the contention of the counsel for the applicants that the period of limitation for filing the appeal to the Commercial Appellate Division of the High Court would not commence unless the judgment of the Commercial Court in the Commercial suit was communicated by the said Commercial Court to the parties.

27. We shall next consider whether the delay of 301 days in filing this Commercial Appeal can be condone in exercise of power conferred on this Court under Section 5 of the Limitation Act, 1963.

28. The extent of applicability of Section 5 of the Limitation Act, 1963 to cases falling under the Commercial Courts Act, 2015 fell for consideration of the Supreme Court in Government of Maharashtra (2 supra).

29. The Supreme Court in Para 19 of it's judgment in Government of Maharashtra (2 supra) discussed the statement of objects and reasons behind enacting of the Commercial Courts Act, 2015 and held that period of limitation must always to some extent be arbitrary and may result in some hardship, but this is no reason as to why they should not be strictly followed. In para 32, it held that the condonation of delay under Section 5 of the Limitation Act, 1963 has to be seen in the context of the object of speedy resolution of the dispute. In para 58, the Supreme Court held that given the object sought to be achieved under the Commercial Courts Act, 2015 i.e., the speedy resolution of the disputes, expression "sufficient cause" in Section 5 of the Limitation Act, 1963 is not elastic enough to cover long delays beyond the period provided by the appeal provision itself; and that the expression "sufficient cause" is not itself a loose panacea for the ill of pressing negligent and stale claims. In other words, the Supreme Court indicated that in exercise of power under Section 5 of the Limitation Act, 1963 a delay beyond the period of 60 days from the date on which the appeal could have been filed can be condoned (i.e., below 120 days from the date of pronouncement of the judgment) by invoking Section 5 of the Limitation Act, 1963, but where there is negligence, inaction or lack of bona fides, such power ought not to be exercised. It went further in para 59 by observing that merely because the Government is involved, a different yardstick for condonation of delay cannot be laid down. (This rule would thus apply equally to instrumentalities of Government like the applicants herein). It held in para 62 that merely because sufficient cause has been made out in the facts of a given case, there is no right in the applicants or the appellants to have the delay condoned. It concluded in para 63 as under: “63. Given the aforesaid and the object of speedy disposal sought to be achieved both under the Arbitration An and the Commercial Courts Act, for appeals pled under section 37 of the Arbitration Act that are governed by Articles 116 and 117 of the Limitation Act or Section 13(l-A)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, he 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.” (emphasis supplied)

30. Thus, the Supreme Court in Government of Maharashtra (2 supra) permitted condonation of delay beyond 60 days in a case falling under the Commercial Courts Act only by way of exception and not by way of rule. If the applicants for condonation of delay had not acted bona fide and had acted in a negligent manner as in the instant case, the delay is not liable to be condoned.

31. In the instant case, the delay in filing the appeal is 301 days – way beyond 60 days + 60 days = 120 days permitted by the judgment of the Supreme Court to be condoned in exercise of power under Section 5 of the Limitation Act, 1963. Therefore, such inordinate delay caused by negligence of the applicants is not liable to be condoned.

32. We may also point out that the applicants were represented before the Commercial Court, Ranchi by counsel and the judgment was obviously pronounced in the presence of the counsel. Though the order was pronounced on 09.10.2023 it appears that the application for issuance of certified copy was made on 30.08.2024, it was made ready on 07.09.2024, and the appeal was filed on 04.10.2024. If the Commercial Court had not communicated the copy of its judgment to the applicants within the reasonable time, it was incumbent on the part of the counsel for the applicants or the employees in the Legal Department of the applicants to apply for issuance of certified copy from the Commercial Court, but they have failed in their duty to apply for it when they did not receive it within a reasonable time. Their negligence resulted in the inordinate delay of 301 days in filing this appeal.

33. The applicants cannot blame the respondent for not communicating to them about the disposal of the appeal and for not making any demand of payment in terms of the decree of the Commercial Court.

34. They also cannot take advantage of the negligence of the counsel engaged by them in not informing the applicants about the judgment of the Commercial Court. This is because the applicants have a Legal Department and employees engaged by the applicants in that department have a duty to monitor what is happening in the cases to which the applicants are parties, keep track of the progress of the said cases and the decisions therein, and ensure that applications for issuance of certified copy are made to the concerned court so that the appeals, if required, can be preferred within the period of limitation prescribed by law.”

21. We are in complete agreement with the line of reasoning assigned by the High Court.

22. In the result, this petition fails and is hereby dismissed.

23. Pending application(s), if any, shall stand disposed of. …………………………………………J. (J.B. PARDIWALA) ……………………………………….J. (R.MAHADEVAN) NEW DELHI.