Karnataka High Court
Ozone Elegant Developers Llp vs M/S Arya Four Seasons on 25 July, 2023
Author: H.P.Sandesh
Bench: H.P.Sandesh
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NC: 2023:KHC:25778
CRP No. 148 of 2023
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 25TH DAY OF JULY, 2023
BEFORE
THE HON'BLE MR JUSTICE H.P.SANDESH
CIVIL REVISION PETITION NO. 148 OF 2023
BETWEEN:
1. OZONE ELEGANT DEVELOPERS LLP
2nd FLOOR, NO 35/1, YELLAPPA CHETTY LAYOUT,
CIVIL STATION
BENGALURU 560042,
REPRESENTED BY ITS PARTNER,
MR SATHYA MOORTHY SAI PRASAD
2. OZONE INFRA DEVELOPERS PRIVATE LIMITED
DOOR NO 21/1, BEARYS HORIZON, WOOD STREET,
ASHOK NAGAR,
BENGALURU 560025,
REPRESENTED BY ITS DIRECTOR,
MR VASUDEVAN SATHYAMOORTHY
Digitally signed
3. OZONE REALTORS PRIVATE LIMITED
by SHARANYA T NO 51/7-1, RATHNA AVENUE,
Location: HIGH OFF RICHMOND ROAD, CIVIL STATION,
COURT OF
KARNATAKA BENGALURU 560025,
REPRESENTED BY ITS DIRECTOR,
MR VASUDEVANSATHYAMOORTHY
...PETITIONERS
(BY SRI. SHYAMSUNDAR, SENIOR COUNSEL FOR
MS. VANDANA P L., ADVOCATE)
AND:
1. M/S ARYA FOUR SEASONS
NO 4, 1ST FLOOR, ARYA HAMSA, SURVEY NO 28/1,
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NC: 2023:KHC:25778
CRP No. 148 of 2023
KOTHNOOR, JP NAGAR 8TH PHASE, 2ND BLOCK,
BENGALURU 560083,
REPRESENTED BY ITS PARTNER,
MR RAMALINGAM G.
2. M/S ELEGANT PROPERTIES
OFFICE NO 1, ELEGANT DESIRE,
COLES ROAD, FRAZER TOWN,
BENGALURU 560005,
REPRESENTED BY ITS PARTNER,
MR B RAJASHEKAR
3. MR B RAJASHEKAR,
MAJOR IN AGE,
WORKING FOR GAINS AT ELEGANT PROPERTIES,
OFFICE NO 1, ELEGANT DESIRE,
COLES ROAD, FRAZER TOWN,
BENGALURU 560005
4. MRS R VIJAYA CHAMUNDI
WIFE OF MR B RAJASHEKAR,
MAJOR IN AGE, WORKING FOR GAINS AT ELEGANT
PROPERTIES,
OFFICE NO 1, ELEGANT DESIRE,
COLES ROAD, FRAZER TOWN,
BENGALURU 560005
5. GEARS AND PINIONS PRIVATE LIMITED
NO 494, (OLD NO 492) MAHADEVPURA,
BENGALURU 560048,
REPRESENTED BY ITS MANAGING DIRECTOR,
MR DILIP PRASAD KHEMKA.
6. UNIVERSAL CARBURIZING WORKS PRIVATE LIMITED
NO 61, WHITEFIELD ROAD,
MAHADEVPURA POST,
BENGALURU 560048,
REPRESENTED BY ITS DIRECTOR,
MR MOHAMMED JAMAL/ MR IMRAN JAMAL
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NC: 2023:KHC:25778
CRP No. 148 of 2023
7. MR R SHANKAR
SON OF MR RAMACHANDRAPPA,
AGED ABOUT 56 YEARS,
MANJUNATHA NILAYA,
KANCHARKANAHALLY,
ST THOMAS ROAD,
BENGALURU 560084
8. MR. B.A. BASAVARAJU,
AGED ABOUT 56 YEARS
S/O. M.R. ANGINAPPA
SAIRAM NILAYA
NO.6, BYRATHI VILLAGE,
KOTHANUR POST
BANGALORE-560 077.
9. MR. M/S. LEWIS INFRASTRUCTURE PROJECTS,
LEWIS TECHPARK
NO.18, MILLERS ROAD, BENSON TOWN
NANDIDURGA ROAD
BANGALORE-560 046
REPRESENTED BY ITS PARTNER
SRI. SANTOSH LEWIS
MR SANTOSH LEWIS
10.
MAJOR IN AGE,
PARTNER AT LEWIS INFRASTRUCTURE PROJECTS,
LEWIS TECH PARK, NO 18, MILLERS ROAD,
BENSON TOWN,
NANDIGURGA ROAD,
BENGALURU 560046
...RESPONDENTS
(BY SRI. SHRISHAIL SHIVABASAPPA
NAVALGUND.,ADVOCATE FOR CAVEATOR
RESPONDENT NO.1)
THIS CRP IS FILED UNDER SECTION 115 OF CPC
AGAINST THE ORDER DATED 07.01.2023 PASSED ON IA No.III
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CRP No. 148 of 2023
IN OS No.1496/2022 ON THE FILE OF THE VIII ADDITIONAL
CITY CIVIL AND SESSIONS JUDGE, BENGALURU, REJECTING
THE IA No.III FILED UNDER ORDER VII RULE 11(d) OF CPC
FOR REJECTION OF PLAINT.
THIS PETITION, COMING ON FOR ADMISSION, THIS
DAY, THE COURT MADE THE FOLLOWING:
ORDER
Heard learned Senior Counsel for the revision petitioners and also learned counsel for respondent No.1.
Though this matter is listed for admission, with the consent of learned counsels on both sides, the matter is taken up for final disposal.
2. In this revision petition, the order dated 07.01.2023 passed on I.A NO.III in O.S.NO.1496/2022 by learned VIII Addl. City Civil and Sessions Judge(CCH-15), Bengaluru is challenged before this Court, whereby the trial court rejected I.A.III filed under Order VII Rule 11(d) of CPC by defendant Nos.4 to 6 and 8 to 10 and also memo filed by defendant Nos.8 to 10 under section 9 of CPC seeking return of plaint.
3. The main contention of the learned Senior Counsel for the revision petitioners before this Court is that the suit is filed -5- NC: 2023:KHC:25778 CRP No. 148 of 2023 in the year 2022 and the agreement which the plaintiff seeks to enforce the same is of the year 2013 and the same is barred by limitation and apart from other grounds urged by the petitioners herein invoking section 9 of CPC, he would contend that the suit is filed before the civil court and the same ought to have been filed before the Commercial Court. Learned Senior counsel for the petitioners brought to the notice of the Court the definition of section 2 of The Commercial Courts Act, 2015, wherein it is brought to the notice of the Court the definition of 'commercial dispute' under section 2(1) (c) which means a dispute arising out of ordinary transactions etc and brought to the notice of this Court clause (vi) with regard to 'construction and infrastructure contracts, including tenders' and so also with regard to clause (vii) regarding 'agreements relating to immovable property used exclusively in trade or commerce' and also brought to the notice of this Court clause (xi) with regard to 'joint venture agreements' and also clause (xv) with regard to 'partnership agreement'. Learned Senior Counsel also brought to the notice of this Court the relevant paragraphs of the plaint particularly paragraph No.7 wherein pleaded with regard to partnership and also entering into Joint Development -6- NC: 2023:KHC:25778 CRP No. 148 of 2023 Agreement of defendant Nos.1 to 3 with defendant No.4 to construct multi-storied residential and commercial complex and also brought to the notice of this Court paragraph 10, wherein there is discussion with regard to entering into Sale agreement and Construction Agreement in relation to the Schedule 'A' and 'B' properties owned by defendant Nos.4 and 5 and plaintiff intended to invest in the Composite property and have entered into Agreement to Sell dated 29.11.2013 and also brought to the notice of this Court to para 13, wherein, he has pleaded under the Construction Agreement which defendant No.1 had entered into with the plaintiff to engage the plaintiff's services for constructing the basic structure of the project and also brought to the notice of this Court the prayer sought in the suit.
4. Learned Senior Counsel would vehemently contend that having perused the plaint averments itself, this Court can invoke Order VII Rule 11 CPC to reject the plaint. Hence, prayed this Court to reject the plaint.
5. Per-contra, learned counsel appearing for respondent No.1 would vehemently contend that the relief is sought for -7- NC: 2023:KHC:25778 CRP No. 148 of 2023 enforcement of the Agreement to Sell and the first prayer is for specific performance of the Agreement to Sell without possession dated 29.11.2023 and further relief is also sought for to execute and register the Sale Deed in favour of the plaintiff and also alternative relief of damages in favour of the plaintiff is sought and apart from that, to declare the Deed of Amalgamation dated 12.02.2015 as null and void and also Joint Development Agreement dated 28.02.2015 entered into between the defendant No.5 and defendant No.8 as null and void and other reliefs are also sought for.
6. Learned counsel for respondent No.1 also brought to the notice of this Court that in terms of the Sale agreement i.e., in respect of residential premises to the extent of 40540.54 Sq.ft not only sought for relief in respect of seeking a declaration of Amalgamation Deed and Joint Development Agreement as null and void and main relief is sought for enforcement of the Sale Agreement and hence the submission of learned Senior Counsel that the jurisdiction of the Commercial Courts has to be invoked, cannot be accepted.
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NC: 2023:KHC:25778 CRP No. 148 of 2023
7. Learned counsel also brought to the notice of this Court the reasoning given by the trial court in para 10 with regard to limitation by relying upon the judgment of the Hon'ble Apex Court in the case of Ahmadsahab Abdul Mulla v. Bibijan and Others reported in (2009) 5 SCC 462 and also to para 11 with regard to jurisdiction of the Court is concerned, the trial court also considered the judgment in the case of Ambala Sarabhai Enterprises Limited v. K.S. Infraspace LLP and another reported in (2020) 15 SCC 585, wherein the Hon'ble Apex Court observed with regard to the disputed property being used exclusively in trade or commerce, the present dispute is not coming within the definition of Commercial dispute. Therefore, the Court has got jurisdiction to try the suit and rightly considered the same. The learned counsel also vehemently contend that in order to commence the work in so far as other agreements are concerned, for construction, no approval was given and no money was spent and the said contract is frustrated and hence the very contention that the matter has to be tried only before Commercial Courts cannot be accepted.
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NC: 2023:KHC:25778 CRP No. 148 of 2023
8. In reply to the arguments of learned counsel for respondent No.1, learned Senior Counsel for the revision petitioners vehemently contend that no-doubt it is settled law that the Court has to look into the averments of the plaint while invoking Order VII Rule 11 CPC and even though the limitation is a mixed question of fact and law, when there is no jurisdiction to the Court, the Court cannot entertain the suit and same falls within the jurisdiction of Commercial Courts and not only he has sought for specific performance and also other reliefs is also sought for and hence the contention of the respondent No.1 cannot be accepted.
9. Having heard the counsel for the revision petitioners and also learned counsel for respondent No.1 and also giving anxious consideration to the definition of section 2 of the Commercial Courts Act, 2015, no-doubt, with regard to section 2(1) (c), is in respect of commercial dispute, means a dispute arising out of and also perusing the respective clauses (vi),
(vii), (xi) and (xv), keeping in mind, wherein the court has to look into the averments of the plaint in keeping the definition of the Commercial Courts Act. Having perused the prayer made in the plaint, the suit is filed for the relief of enforcement of
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NC: 2023:KHC:25778 CRP No. 148 of 2023 Agreement to Sell, that is for specific performance of the Agreement to Sell without possession dated 29.11.2013 and the said document is also a registered document and the same is executed in favour of the plaintiff and sought for the relief to enforce the same against the defendants and consequently direct defendant No.1 to execute the registered sale deed in favour of the plaintiff.
10. Learned Senior counsel appearing for the revision petitioners would vehemently contend that if construction is not completed, question of enforcement of said agreement does not arise and the factual aspect also has to be taken note of wherein in the suit the main relief sought is for relief of specific performance of the Agreement to Sell and also the same is also in respect of residential premises for which the respondent No.1/plaintiff has agreed to purchase the same and also sought for additional relief and other alternative relief in case if the Court comes to the conclusion that the plaintiff is not entitled for the relief of specific performance of the Agreement to Sell without possession dated 29.11.2013 and then to pass a judgment and decree for the alternative relief of damages in favour of the plaintiff by directing the defendants to pay to the
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NC: 2023:KHC:25778 CRP No. 148 of 2023 plaintiff a sum of Rs.15,60,52,970/- alongwith pendente-lite and future interest at the rate of 18% p.a. and no-doubt on perusal of the plaint, other reliefs are also sought with regard to declare the Deed of Amalgamation and also Joint Development Agreement as null and void and when the relief is also sought for specific relief, that too, based on the Agreement to Sell dated 29.11.2013 and dispute is not only with regard to commercial dispute as contended by the petitioners' counsel and the trial court also considered this issue in para 10 and the same has taken note of the pleadings of the parties in application filed under Order VII Rule 11 CPC and also taken note of Article 54 of the Schedule to the Limitation Act, wherein it is held that if no specific date is fixed for specific performance of the contract, the limitation starts to run from the date when the plaintiff has noticed that the performance is refused and also has taken note of the judgment of the Apex Court in the case of Ahmadsahab Abdul Mulla v. Bibijan and others reported in (2009) 5 SCC 462 and also while considering with regard to the jurisdiction, the trial court has taken note of the judgment of the Hon'ble Apex Court in Ambala Sarabhai Enterprises Limited v. K.S. Infraspace LLP and another
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NC: 2023:KHC:25778 CRP No. 148 of 2023 reported in (2020) 15 SCC 584 and also dealt with the matter both in respect of the limitation as well as jurisdiction and also taken note of the relief sought in the plaint. When such being the case, the very contention of the learned Senior Counsel for the revision petitioners that the respondent ought to have filed a suit before the Commercial Court and not before the civil court cannot be accepted and the court has to look into the averments of the plaint as well as prayer sought in the plaint. The other contention raised by the learned counsel for the revision petitioners is that if the building has not come up, question of enforcing the same does not arise and the said issue is also a disputed fact and the same has to be decided in a suit filed by the plaintiff and the same cannot be determined in an application filed under Order VII Rule 11(d) CPC as contended by the revision petitioners. Hence, I do not find any force in the contention of learned counsel for the revision petitioners that the Court is not having jurisdiction and also that the suit is barred by limitation as the same is also a mixed question of fact and law and the same has to be determined after trial. Hence I find no merit in the revision petition.
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NC: 2023:KHC:25778 CRP No. 148 of 2023 In view of the above discussion, revision petition is dismissed.
Sd/-
JUDGE MN List No.: 1 Sl No.: 41