Karnataka High Court
M/S. Jubilant Agri And Consumer ... vs Shivashakthi Builders And Developers on 12 March, 2020
Bench: Aravind Kumar, Hemant Chandangoudar
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 12th DAY OF MARCH, 2020
PRESENT
THE HON'BLE MR. JUSTICE ARAVIND KUMAR
AND
THE HON'BLE MR.JUSTICE HEMANT CHANDANGOUDAR
C.P. No.303 / 2018
BETWEEN:
1. M/S. JUBILANT AGRI AND
CONSUMER PRODUCTS LIMITED
A COMPANY INCORPORATED
UNDER THE COMPANIES ACT, 1956,
HAVING ITS REGISTERED OFFICE AT
(JUBILANT RETAIL DIVISION),
HAVING ITS REGISTERED OFFICE AT
BHARTIAGRAM, GAJRAULA - 244 223,
DISTRICT: AMROHA (UP),
HAVING ITS CORPORATE OFFICE AT:
SURVEY NO. 12/5, 4TH FLOOR,
KAIKONDARAHALLI, VARTHUR HOBLI,
SARJAPUR ROAD, BENGALURU - 560 035.
REPRESENTED BY DEPUTY
GENERAL MANAGER, LAW
MR. CHANDUEER SINGH.
2. M/S. JUBILANT RETAIL
A RETAIL DIVISION OF PETITIONER
NO.1 HAVING ITS CORPORATE OFFICE
AT SURYODAI COMPLEX,
NO.7, NEW NO. 143, KODIHALLI,
OLD AIRPORT ROAD,
BENGALURU - 560 008.
REPRESENTED BY ASSISTANT
MANAGER ACCOUNTS,
MR. MANJUNATHA .H.A.
...PETITIONERS
(BY SRI. PRAMOD NAIR, ADVOCATE)
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AND:
1. SHIVASHAKTHI BUILDERS
AND DEVELOPERS
A REGISTERED PARTNERSHIP
FIRM HAVING ITS OFFICE
AT SHIVASHAKTHI, NO.255,
KANAKAPURA MAIN ROAD,
JAYANAGAR 7TH BLOCK,
BENGALURU - 560 070,
REPRESENTED BY ITS
MANAGING PARTNER,
MR. B. VENKATESH.
2. MR. B. VENKATESH
S/O LATE K. BABU,
AGED ABOUT 55 YEARS,
RESIDING AT SHIVASHAKTHI NILAYAM,
NO.1, 1ST CROSS, KATHRIGUPPA MAIN ROAD,
BSK III STAGE, BENGALURU - 560 085.
3. MR. B. SHAKTHIVEL
S/O. LATE K. BABU,
AGED ABOUT 47 YEARS,
RESIDING AT SHIVASHAKTHI NILAYAM,
NO.1, 1ST CROSS, KATHRIGUPPA MAIN ROAD,
BSK III STAGE,
BENGALURU - 560 085.
4. MR. B. J. SRIDHAR
S/O. LATE B. JAYARAM,
AGED ABOUT 34 YEARS,
RESIDING AT SHIVASHAKTHI NILAYAM,
NO.1, 1ST CROSS, KATHRIGUPPA MAIN ROAD,
BSK III STAGE,
BENGALURU - 560 085.
...RESPONDENTS
(BY SRI.MADHAVA KASHYAP FOR
SRI. P. PRASANNA KUMAR., ADVOCATES FOR R1 -R4)
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THIS CIVIL PETITION IS FILED UNDER SECTION 15(5)
OF THE COMMERCIAL COURTS ACT,2015 PRAYING TO
PERMIT THE WITHDRAWAL OF O.S. NO. 5561/2014
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PENDING ON THE FILE OF XIX ADDL. CITY CIVIL AND
SESSIONS JUDGE, (CCH-18), BENGALURU AND TRANSFER
THE SAME TO THE FILE OF COMMERCIAL COURT i.e.
XXXVIII ADDL. CITY CIVIL AND SESSIONS JUDGE, (CCH-
39), BENGALURU FOR DISPOSAL IN ACCORDANCE WITH
LAW.
THIS PETITION COMING ON FOR ORDERS THIS DAY,
ARAVIND KUMAR J. MADE THE FOLLOWING:
ORDER
Heard Sri Pramod Nair, learned counsel appearing for petitioners and Sri Madhav Kashyap, learned counsel appearing on behalf of Sri P. Prasanna Kumar, for respondents.
2. Perused the records. Respondents Nos.1 to 4 herein had instituted a suit O.S. No.5561/2014 on the file of Prl.City Civil and Sessions Judge against petitioners herein for recovery of amount specified thereunder.
3. Prayer sought for thereunder reads thus:
"a) Directing the Defendants to pay a sum of Rs.21,88,58,098/- (Rupees twenty one crores eighty eight lakhs fifty eight thousand and ninety eight only) and -4-
b) Directing the Defendants to pay interest at 18% on the above amount from the commencement of the suit till the payment of money, and
c) Directing the defendants to pay the costs of the suit and
d) Pass such other reliefs deemed fit in the interest of justice."
4. During pendency of said suit, Commercial Courts Act, 2015 having been enacted and said Act coming to force with effect from i.e. on 31st December 2015, memo came to be filed by the petitioners herein seeking for transfer of said proceedings to the Commercial Court. Thereafter by order dated 1st August 2018, learned trial Judge has rejected the memo by opining that agreement entered into between plaintiffs and defendants do not expressly indicate with regard to trade and commerce. It has also been held that lease agreement entered into between plaintiffs and defendants does not relate to any immovable property used exclusively in trade or -5- commerce or immovable property to be used in future for trade and commerce.
5. Be that as it may. Petitioners who are defendants Nos.3 and 4 before trial Court have filed this petition for transferring the suit to the Commercial Court by presenting this petition under Section 15(5) of Commercial Courts Act. As to when dispute would constitute to Commercial dispute vis- a-vis with reference to agreement entered into between the respective parties came up for consideration before the Hon'ble Apex Court in the matter of Ambalal Sarabhai Enterprises Ltd v. K.S. Infraspace LLP and Another reported in AIR 2020 SC 307 wherein the Hon'ble Apex Court by their confirming judgment though rendered different opinion held to the following effect. As per Hon'ble Justice A.S. Bopanna it came to be held:
"14. Though we are informed that the said decision is assailed before this Court in a Special Leave Petition we are inclined to agree with the view expressed therein. This is for the reasons that this Court while examining the issue relating to exclusive land use, though in the different context has laid emphasis on the present user of the land either for agriculture or non-agriculture -6- purpose being relevant. In that regard, the decision relied on by the learned senior advocate for the respondent in the case of Federation of A.P. Chambers of Commerce & Industry v. State of A.P., (2000) 6 SCC 550 is noticed, wherein it is observed as under:
"6. Section 3 of the said Act speaks of "land is used for any industrial purpose". The emphasis is on the word "is used". For the purpose of levy of assessment on non-agricultural lands at the rate specified in the Schedule for land used for industrial purposes, therefore, there has to be a finding as a fact that the land is in fact in praesenti in use for an industrial purpose. The same would apply to a commercial purpose or any other non-agricultural purpose."
"9. We are in no doubt whatever, therefore, that it is only land which is actually in use for an industrial purpose as defined in the said Act that can be assessed to non-agricultural assessment at the rate specified for land used for industrial purposes. The wider meaning given to the word "used" in the judgment under challenge is untenable. Having regard to the fact that the said Act is a taxing statute, no Court is justified in imputing to the legislature an intention that it has not clearly expressed in the language it has employed."
(emphasis supplied)
15......
16. In that view it is also necessary to carefully examine and entertain only disputes which actually answers the definition "commercial disputes" as provided under the Act. In the instant case, as already taken note neither the agreement between the parties refers to the nature of the immovable property being exclusively used for trade or commerce as on the date of the agreement nor is there any pleading to that effect in the plaint. Further the very relief sought in the suit is for execution of the Mortgage Deed which is in the nature of specified performance of the terms of Memorandum of Understanding without reference to nature of the use of the immovable property in trade or -7- commerce as on the date of the suit. Therefore, if all these aspects are kept in view, we are of the opinion that in the present facts the High Court was justified in its conclusion arrived through the order dated 01.03.2019 impugned herein. The Commercial Court shall therefore return the plaint indicating a date for its presentation before the Court having jurisdiction."
6. As per Hon'ble Justice R. Banumathi it came to be held:
"42. A dispute relating to immovable property per se may not be a commercial dispute. But it becomes a commercial dispute, if it falls under sub-clause (vii) of Section 2(1) (c) of the Act viz. " the agreements relating to immovable property used exclusively in trade or commerce". The words "used exclusively in trade or commerce" are to be interpreted purposefully. The word "used"
denotes "actually used" and it cannot be either "ready for use" or "likely to be used" or "to be used". It should be "actually used". Such a wide interpretation would defeat the objects of the Act and the fast tracking procedure discussed above."
7. In the background law laid down by the Hon'ble Apex Court issue raised in this petition would not survive or same is to move res integra. In view of agreement entered into between plaintiffs and defendants not disclosing or indicating in express terms that it was with regard to commerce -8- and trade, the dispute which has arisen between parties cannot be considered or accepted as to be one of the Commercial disputes as defined under Section 2(c) (i) (vii) Hence, prayer sought for in the present petition cannot be granted.
Accordingly, petition is dismissed. Consequently, I.A.1/2020 for vacating stay does not survive for consideration and it stands rejected.
Sd/-
JUDGE Sd/-
JUDGE HR