Karnataka High Court
M/S Umrah Developers vs Sri P Krishna Reddy on 19 July, 2021
Bench: Chief Justice, Suraj Govindaraj
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 19TH DAY OF JULY, 2021
PRESENT
THE HON'BLE MR.ABHAY S. OKA, CHIEF JUSTICE
AND
THE HON'BLE MR.JUSTICE SURAJ GOVINDARAJ
COMAP NO.99 OF 2021
BETWEEN:
M/S. UMRAH DEVELOPERS
NO.22/1, MILLER TANK BUND ROAD
KAVERIYAPPA LAYOUT
BANGALORE - 52
REPRESENTED BY ITS PROPRIETOR
SRI YUSUF SHARIFF @ D.BABU
... APPELLANT
(BY SHRI MOHAMMED MUJASSIM, ADVOCATE)
AND:
1. SRI P. KRISHNA REDDY
S/O LATE P.DASARATHARAMA REDDY
AGED ABOUT 65 YEARS
PARTNER
M/S. SUNVIN INFRA
KRISHNA COMPLEX, 5TH FLOOR
NO.14, STATE BANK ROAD
BANGALORE - 560 001
2. M/S. SUNVIN INFRA
A PARTNERSHIP FIRM HAVING OFFICE
AT KRISHNA COMPLEX, 5TH FLOOR
NO.14, STATE BANK ROAD
BANGALORE - 560 001
REPRESENTED BY ITS
MANAGING PARTNER
SRI P.DINESH REDDY
AGED ABOUT 37 YEARS
R/AT NO.1751, 7TH MAIN
VIJAYANAGAR 2ND STAGE
MYSURU - 570 017 ... RESPONDENTS
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THIS COMAP IS FILED UNDER SECTION 13 (1-A) OF THE
COMMERCIAL COURTS ACT, 2015 READ WITH ORDER XLIII OF THE
CIVIL PROCEDURE CODE, 1908 PRAYING TO SET ASIDE THE ORDER
DATED 15.03.2021 PASSED BY THE COURT OF THE HON'BLE X
ADDITIONAL DISTRICT JUDGE, BENGALURU RURAL DISTRICT AT
BENGALURU PASSED IN COM O.S. NO.186/2020 I.E. ANNEXURE-A
AS ARBITRARY AND ILLEGAL AND CONSEQUENTLY TRANSFER SUIT
TO THE COMMERCIAL COURT AND ETC.
THIS COMAP COMING ON FOR ORDERS THIS DAY, CHIEF
JUSTICE MADE THE FOLLOWING:
JUDGMENT
Heard the learned counsel appearing for the appellant.
2. A suit was filed by the respondents in the Court of the Senior Civil Judge, Anekal. By the order dated 30th September 2020, the suit was transferred to Commercial Court established under the Commercial Courts Act, 2015 (for short, "the Commercial Courts Act") in view of the provisions of sub- section (2) of Section 15 of the Commercial Courts Act. The present appellant is the defendant. The challenge in this appeal preferred under sub-section (1A) of Section 13 of the Commercial Courts Act is to the order dated 15th March 2021 passed by the learned Judge of the Commercial Court. The operative part of the said order reads thus:
"Office is directed to place entire records of the case before Hon'ble Prl. District and Sessions Judge, Bengaluru Rural District, Bengaluru for an order U/Sec. 24(1) of CPC to retransfer the suit to competent civil Court for disposal in accordance with law."-3-
3. An appeal is always a creation of a statute. In the present case, the appellant has invoked sub-section (1A) of Section 13 of the Commercial Courts Act. Sub-sections (1A) and 2 of Section 13 of the Commercial Courts Act read thus:
"13. Appeals from decrees of Commercial Courts and Commercial Divisions.--(1) Any person aggrieved by the judgment or order of a Commercial Court below the level of a District Judge may appeal to the Commercial Appellate Court within a period of sixty days from the date of judgment or order.
(1A) Any person aggrieved by the judgment or order of a Commercial Court at the level of District Judge exercising original civil jurisdiction or, as the case may be, Commercial Division of a High Court may appeal to the Commercial Appellate Division of that High Court within a period of sixty days from the date of the judgment or order:
Provided that an appeal shall lie from such orders passed by a Commercial Division or a Commercial Court that are specifically enumerated under Order XLIII of the Code of Civil Procedure, 1908 as amended by this Act and section 37 of the Arbitration and Conciliation Act, 1996.
(2) Notwithstanding anything contained in any other law for the time being in force or Letters Patent of a High Court, no appeal shall lie from any order or decree of a Commercial Division or Commercial Court otherwise than in accordance with the provisions of this Act."
(underlines supplied)
4. In the present case, the impugned order has been passed by the Commercial Court at the level of a District Judge. -4- However, the proviso to sub-section (1A) lays down that an appeal shall lie under sub-section (1A) of Section 13 only from such orders passed by the Commercial Court that are specifically enumerated under Order XLIII of the Code of Civil Procedure, 1908 (for short, "CPC") and Section 37 of the Arbitration and Conciliation Act, 1996.
5. The submission of the learned counsel appearing for the appellant is that the impugned order is an order returning the plaint under Rule 10 of Order VII of CPC and, therefore, the present appeal will be governed by clause (a) of Rule 1 of Order XLIII of CPC. He has placed reliance on the following decisions:
(i) WAQF MASJID PINDAIN AND OTHERS vs. ATHAR HUSAIN HAIDRI AND ANOTHER1;
(ii) M/S INSTRUMENTS INCORPORATED vs. M/S INDUSTRIAL CABLES2;
(iii) UNION OF INDIA vs. NEW INDIA ASSURANCE CO. LTD. & ANOTHER3;
(iv) CHANDRA PREM SHAH AND OTHERS vs. K.RAHEJA UNIVERSAL PVT. LTD. & ANOTHER.4
6. We have considered the submissions. A perusal of the impugned order shows that the learned Judge of the Commercial Court was of the view that the dispute in the suit 1 AIR 1985 ALL 100 2 ILR 1996 KAR 1893 3 AIR 1997 DEL 54 4 2015 (5) Mh.L.J.714 -5- was not a commercial dispute within the meaning of clause (c) of sub-section (1) of Section 2 of the Commercial Courts Act. As the suit was transferred to the Commercial Court which was originally filed in the Civil Court, the learned Judge of the Commercial Court has not passed an order of return of the plaint. He directed that the record of the suit be placed before the Principal District and Sessions Judge, Bengaluru Rural District to enable the learned Principal District and Sessions Judge to exercise the power under sub-section (1) of Section 24 of CPC for retransfer of the said suit to the competent Civil Court.
7. When an order of return of plaint is passed under Rule 10 of Order VII of CPC, the Court directs return of the plaint to the plaintiff for presentation to proper Court. In this case, there is no such order passed by the learned Judge of the Commercial Court under the impugned judgment and order. The impugned order is not appealable under any of the clauses of Rule 1 of Order XLIII of CPC. Therefore, in view of proviso to sub-section (1A) of Section 13 of the Commercial Courts Act, this appeal is not maintainable.
8. Hence, the learned counsel appearing for the appellant seeks permission to convert this appeal into a writ petition -6- under Article 227 of the Constitution of India. We, accordingly, grant permission for conversion. A proper writ petition shall be filed by the appellant within a period of three weeks from today. After the writ petition is filed, it shall be numbered and placed before the appropriate Bench. This appeal shall be treated as disposed of for statistical purpose.
9. The pending interlocutory application does not survive for consideration and stands disposed of.
Sd/-
CHIEF JUSTICE Sd/-
JUDGE AHB