M.A.Shabu vs Brd Finance Limited

Kerala High Court

M.A.Shabu vs Brd Finance Limited on 21 May, 2024

Author: Kauser Edappagath

Bench: Kauser Edappagath

             IN THE HIGH COURT OF KERALA AT ERNAKULAM
                                PRESENT
        THE HONOURABLE DR. JUSTICE KAUSER EDAPPAGATH
   TUESDAY, THE 21ST DAY OF MAY 2024 / 31ST VAISAKHA, 1946
                       OP(C) NO. 651 OF 2024
     IN CS NO.15 OF 2023 OF COMMERCIAL COURT, CHAVAKKAD
PETITIONERS/DEFENDANTS:

    1       M.A.SHABU, AGED 43 YEARS, S/O. MANIPARAMBIL
            VEETTIL ANTONY, PARAPPOOKKARA VILLAGE & DESOM,
            PARAPPOOKKARA P.O., MUKUNDAPURAM TALUK, THRISSUR,
            PIN - 680310

    2       DEENA SHABU, AGED 34 YEARS, W/O. M.A.SHABU,
            PARAPPOOKKARA VILLAGE & DESOM, PARAPPOOKKARA P.O.,
            MUKUNDAPURAM TALUK, THRISSUR, PIN - 680310

            BY ADVS.R.MAHESH MENON
            SACHIN.P.K, VARGHESE XAVIER


RESPONDENTS/PLAINTIFF:
          BRD FINANCE LIMITED
          BETHANI COMPLEX, THRISSUR ROAD, KUNNAMKULAM
          VILLAGE, DESOM, THALAPPILLY TALUK, REPRESENTED BY
          LITIGATION CLERK, S.MANI, S/O. MULANKUNNATHUKAVU
          SANKARAN, KONCHERY ROAD, MULANKUNNATHUKAVU DESOM,
          KILLANNUR VILLAGE, THRISSUR, PIN - 680503

            BY ADVS.LINDONS C.DAVIS, E.U.DHANYA(K/672/2006),
            RAJITH DAVIS(K/1252/1998) N.S.SHAMILA(K/222/2016),
            CHINJU P. JOYIES(K/894/2016)


     THIS     OP   (CIVIL)    HAVING   COME   UP    FOR    ADMISSION   ON
21.05.2024,    THE    COURT    ON   THE   SAME     DAY    DELIVERED    THE
FOLLOWING:
 O.P.(C).No.651/2024

                                 -:2:-

                            JUDGMENT

Ext.P4 order passed by the Commercial Court, Chavakkad (for short 'the trial court') is under challenge in this original petition.

2. The petitioners are the defendants and the respondent is the plaintiff in C.S.No.15/2023 before the trial court. The suit was one for realisation of money based on a chit transaction. The petitioners entered appearance and filed written statement and challenged the maintainability of the suit. The maintainability has been challenged mainly on the ground that the suit is not of commercial nature. The trial court considered the issue regarding maintainability as preliminary issue and found that the suit is perfectly maintainable, as per Ext.P4 order. It is challenging the said order, this original petition has been filed.

3. I have heard the learned counsel for the petitioner Sri. R. Mahesh Menon and the learned counsel for the respondent Sri. Lindons C. Davis.

-:3:-

4. A perusal of the impugned order would show that the maintainability has been challenged by the petitioner before the trial court only on the ground that the suit is not of commercial nature. As per Section 2 (c)(i) of the Commercial Courts Act, ordinary transactions of merchants, bankers, financiers and traders are treated as commercial in nature. The Supreme Court in Oriental Kuries Ltd v. Lissa (2019 (4) KLJ 878) held that there is a contractual obligation between the foreman and subscriber of a chitty. Hence, the same creates a debt on the date of subscription. So, if the subscriber fails to pay the instalments, the foreman is entitled to recover the consolidated chit amount including the future subscription of the defaulting subscriber. Therefore, as rightly held by the trial court, the foreman of the chit has to be termed as financier and hence, the dispute is commercial in nature.

5. The learned counsel for the petitioner submitted that the petitioner has also challenged the maintainability on another ground, that another suit instituted by the respondents against the petitioner for the same relief was already dismissed by the O.P.(C).No.651/2024 -:4:- Additional Munsiff Court, Irinjalakkuda as per Ext.P3 judgment and hence, the suit is hit by Order IX Rule 9 of the Code of Civil Procedure (for short the CPC) as well as Order II Rule 2 of the CPC. I cannot subscribe to the said argument. I went through Ext.P3 as well as the plaint of the present suit, Ext.P1. It shows that the suit in Ext.P3 has been filed to realise the defaulted chit amount for the period from 5.4.2015 to 5.10.2015, whereas, Ext.P1 suit has been filed to realise the defaulted chit amount for the period with effect from 5.4.2017. Hence, both the suits are for different periods. Therefore, there is no question of attracting either Order IX Rule 9 of the CPC or Order II Rule 2 of the CPC.

There is no illegality or impropriety in the impugned order. Accordingly, the original petition is dismissed.

Sd/-

DR. KAUSER EDAPPAGATH JUDGE kp O.P.(C).No.651/2024 -:5:- APPENDIX OF OP(C) 651/2024 PETITIONER EXHIBITS Exhibit P1 THE TRUE COPY OF THE MEMORANDUM OF PLAIINT FILED BY THE RESPONDENT DATED 16-06-2021.

Exhibit P2 THE TRUE COPY OF THE WRITTEN STATEMENT FILED BY THE PETITIONERS DATED 26-07- 2021 Exhibit P3 THE TRUE COPY OF THE JUDGEMENT DATED 26-

                        06-2023 IN O.S.NO.4082/2015 PASSED BY
                        THE    HON'BLE    ADDL.    MUNSIFF    AT
                        IRINJALAKUDA

Exhibit P4              THE TRUE COPY OF THE ORDER DATED 07-12-

2023 PASSED BY HON'BLE COMMERCIAL COURT AT CHAVAKKAD IN C.S.NO.15/2023