M/S Umrah Developers vs Sri P Krishna Reddy
2021 Latest Caselaw 2855 Kant

                           -1-


  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
                                -2-


      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. 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.

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

AIR 1985 ALL 100

ILR 1996 KAR 1893

AIR 1997 DEL 54

2015 (5) Mh.L.J.714

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

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