Pauloose George Construction Company (P) Ltd. Engineers & Contractors v. Kerala State Electricity Board Ltd and The Chief Engineer (C.C North), KSEBL

**IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE P.SOMARAJAN** **TUESDAY, THE 6[TH] DAY OF JUNE 2023 / 16TH JYAISHTA, 1945** **OP(C) NO. 860 OF 2023** **(AGAINST THE ORDER DATED 25/02/2023 IN I.A.NO.1438/2019 IN O.S.NO.** **222/2018 OF PRINCIPAL SUB COURT, THIRUVANANTHAPURAM)** ## **PETITIONER/PLAINTIFF:** M/S. PAULOSE GEORGE CONSTRUCTION COMPANY (P) LTD. ENGINEERS & CONTRACTORS, A COMPANY INCORPORATED UNDER INDIAN COMPANIES ACT, 1956, HAVING ITS REGISTERED OFFICE AT AISWARYA TOWERS, AMBALAMUGAL, KOCHI-682 302, REPRESENTED BY ITS MANAGING DIRECTOR, SRI. T.V. PAULOSE, THURUTHIYIL HOUSE, BRAHMAPURAM P.O., AMBALAMEDU (VIA), KOCHI, PIN - 682303 BY ADVS. K.BABU THOMAS MARYKUTTY BABU APARNA JOY ## **RESPONDENTS/DEFENDANTS:** 1 KERALA STATE ELECTRICITY BOARD LTD A COMPANY INCORPORATED UNDER INDIAN COMPANIES ACT, 1956, REPRESENTED BY ITS CHAIRMAN & MANAGING DIRECTOR, VYDYUTHI BAHAVANAM, PATTOM P.O., THIRUVANANTHAPURAM, PIN - 695004 2 THE CHIEF ENGINEER ( C.C. NORTH ),KSEBL, VYDHYUTHI BHAVANAM, KOZHIKODE, PIN - 673011 THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 06.06.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` OP(C) NO. 860 OF 2023 ``` ``` 2 ``` ## **CR** ## **JUDGMENT** It is a case wherein a suit was transferred to the Commercial Court after the completion of pleadings. But the submission of written statement was challenged on the ground that it was filed beyond the period of 120 days as mandated under Section 16 of the Commercial Courts Act and relied on the decision of the Apex Court in **Desh Raj** ## **v. Balkishan (dead) through proposed legal representative** **Ms.Rohini [(2020) 2 SCC 708]** . Under Ext.P6 order, the Commercial Court rejected the contention, against which the plaintiff came up. 2. In **Desh Raj** 's case (supra), the Apex Court had laid down that Section 16 of the Commercial Courts Act is mandatory. Section 16 of the said Act is extracted below for reference: “ **16. Amendments to the Code of Civil Procedure, 1908 in its application to** — **commercial disputes.** (1) The provisions of the Code of Civil Procedure, 1908 (5 of 1908) shall, in their application to any suit in respect of a ``` OP(C) NO. 860 OF 2023 ``` ``` 3 ``` commercial dispute of a Specified Value, stand amended in the manner as specified in the Schedule. (2) The Commercial Division and Commercial Court shall follow the provisions of the Code of Civil Procedure, 1908 (5 of 1908), as amended by this Act, in the trial of a suit in respect of a commercial dispute of a Specified Value. (3) Where any provision of any Rule of the jurisdictional High Court or any amendment to the Code of Civil Procedure, 1908 (5 of 1908), by the State Government is in conflict with the provisions of the Code of Civil Procedure, 1908 (5 of 1908), as amended by this Act, the provisions of the Code of Civil Procedure as amended by this Act shall prevail.” (emphasis supplied) 3. Section 16 of the Act deals with amendment to the provisions of Code of Civil Procedure, in so far as any suit in respect of a commercial dispute of a specified value which would come under the purview of a Commercial Court or a Commercial Division as designated or established, would stand governed by the provisions of the C.P.C. as amended by the Act. When there is conflict with the provision of Code of Civil Procedure, 1908, the provisions of the Code as amended by the Commercial Courts Act shall prevail. Necessarily, what governs the ``` OP(C) NO. 860 OF 2023 ``` ``` 4 ``` respective area is the amended provisions of Code of Civil Procedure under Section 16 of the Act pertaining to a commercial dispute for the specified value, though the remaining area which was not dealt under the amended provision, would stand governed by Code of Civil Procedure, 1908. But at the same time, the provisions of the Act would operate only after the transfer of a pending litigation/suit from a regular civil court to the special court constituted and established/designated under the Act viz., the Commercial Courts Act, 2015 and the provisions of amended Code would come into play only from that stage of transfer and not earlier. In short, there is no scope for insisting compliance of requirement under the amended provisions of the Code under Section 16 of the Act to a pending matter before the regular court/civil court. The language employed in Section 15 of the Act makes it clear, which is extracted below for reference: ## **15. Transfer of pending cases** (1) All suits and applications, including applications under the Arbitration and ``` OP(C) NO. 860 OF 2023 ``` ``` 5 ``` Conciliation Act, 1996 (26 of 1996), relating to a commercial dispute of a Specified Value pending in a High Court where a Commercial Division has been constituted, shall be transferred to the Commercial Division. (2) All suits and applications, including applications under the Arbitration and Conciliation Act, 1996 (26 of 1996), relating to a commercial dispute of a Specified Value pending in any civil court in any district or area in respect of which a Commercial Court has been constituted, shall be transferred to such Commercial Court: Provided that no suit or application where the final judgment has been reserved by the Court prior to the constitution of the Commercial Division or the Commercial Court shall be transferred either under sub-section (1) or subsection (2). (3) Where any suit or application, including an application under the Arbitration and Conciliation Act, 1996 (26 of 1996), relating to a commercial dispute of Specified Value shall stand transferred to the Commercial Division or Commercial Court under sub-section (1) or sub-section (2), the provisions of this Act shall apply to those procedures that were not complete at the time of transfer. (4) The Commercial Division or Commercial Court, as the case may be, may hold case management hearings in respect of such transferred suit or application in order to prescribe new timelines or issue such further directions as may be necessary for a speedy and efficacious disposal of such suit or application in accordance with Order XV-A of the Code of Civil Procedure, 1908 (5 of 1908): Provided that the proviso to sub-rule (1) of Rule 1 of Order V of the Code of Civil Procedure, 1908 (5 of 1908) shall not apply to such transferred suit or application and the court may, in its discretion, prescribe a new time period within which the written statement shall be filed. ``` OP(C) NO. 860 OF 2023 ``` ``` 6 ``` (5) In the event that such suit or application is not transferred in the manner specified in sub-section (1), sub-section (2) or sub-section (3), the Commercial Appellate Division of the High Court may, on the application of any of the parties to the suit, withdraw such suit or application from the court before which it is pending and transfer the same for trial or disposal to the Commercial Division or Commercial Court, as the case may be, having territorial jurisdiction over such suit, and such order of transfer shall be final and binding. (emphasis supplied) 4. Sub-section (3) of Section 15 of the Act makes it clear that the provisions of the Commercial Courts Act shall apply “to those procedures that were not complete at the time of transfer”. Necessarily, the steps or procedures which were completed at the regular civil court, would stand valid before the Commercial Court, a Commercial Division, as the case may be, and may not be available for any challenge on account of any of the requirements as mandated under the amended provisions of Code of Civil Procedures as per Section 16 of the Act. Necessarily, the written statement or steps which were completed though filed at belated or highly belated stage ``` OP(C) NO. 860 OF 2023 ``` ``` 7 ``` when accepted by the regular civil court will not stand amenable to the procedure to be followed or the time schedule in the matter of submission of written statement or counter claim under the amended provision of Code and schedule attached to the Commercial Courts Act, 2015. So the time schedule available for submitting written statement under the Commercial Courts Act may not have any application pertaining to a written statement submitted before the regular civil court before transfer. Hence, there is no reason to interfere with Ext.P6 order. The O.P.(C) will stand dismissed. Sd/- ## **P.SOMARAJAN** ## **JUDGE** ``` SV ``` ``` OP(C) NO. 860 OF 2023 ``` ``` 8 ``` ## **APPENDIX OF OP(C) 860/2023** ## PETITIONER'S EXHIBITS Exhibit P1 TRUE COPY OF THE PLAINT IN O.S. NO.222 OF 2018 DATED 28-11-2018 Exhibit P2 TRUE COPY OF WRITTEN STATEMENT FILED BY THE DEFENDANTS IN O.S. NO.222 OF 2018 DATED 3-7-2019 Exhibit P3 TRUE COPY OF OBJECTION OF THE PETITIONER DATED 8-7-2019 Exhibit P4 TRUE COPY OF I.A. NO.1438 OF 2019 DATED 10-7-2019 Exhibit P5 TRUE COPY OF COUNTER AFFIDAVIT FILED BY THE PETITIONER DATED 26-7-2019 Exhibit P6 CERTIFIED COPY OF ORDER IN I.A. NO.1438 OF 2019 DATED 25-2-2023 /TRUE COPY/ P.S. TO JUDGE