Karnataka High Court
Sri B S Raja vs Sri B S Hemanth on 14 February, 2022
Bench: Chief Justice, Suraj Govindaraj
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 14TH DAY OF FEBRUARY, 2022
PRESENT
THE HON'BLE MR. RITU RAJ AWASTHI, CHIEF JUSTICE
AND
THE HON'BLE MR.JUSTICE SURAJ GOVINDARAJ
COMMERCIAL APPEAL NO.256 OF 2021
BETWEEN:
1. SRI B.S.RAJA
S/O LATE SHIVARAMAIAH SHETTY
AGED ABOUT 54 YEARS
2. SMT. B.R.SUDHA
W/O B.S.RAJA
AGED ABOUT 53 YEARS
DEFENDANTS NO.1 AND 2 ARE
RESIDING AT NO.25
HARIHARA APARTMENT
RANGARAO ROAD
SHANKARAPURAM
BENGALURU
3. SRI S.N.BALAJI
S/O S.K.NAGARAJAU
AGED ABOUT 36 YEARS
4. SMT. G.N.PRATHIMA
W/O S.N.BALAJI
AGED ABOUT 31 YEARS
APPELLANTS NO.3 AND 4 ARE
RESIDING AT NO.20
J.RAGAVA NILAYA
CROSS: 2 MAIN, GELEYARA BALAGA
BENGALURU - 560 086
... APPELLANTS
(BY SRI SHIVANNA A.G, SENIOR ADVOCATE)
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AND:
1. SRI B.S.HEMANTH
AGED ABOUT 39 YEARS
S/O MR.B.A.SRINIVASA MURTHY
2. SMT. B.H.SWETHA
AGED ABOUT 37 YEARS
W/O B.S.HEMANTH
RESPONDENTS NO.1 AND 2 ARE
RESIDING AT TF-1, SUN RISE APARTMENT
71 'A' CROSS, 18TH 'B' MAIN
5TH BLOCK, RAJAJINAGAR
BENGALURU - 560 010
3. R.B.H. IMPEX PRIVATE LIMITED
NO.507, BDA LAND, APMC YARD
YESWANTHAPUR
BENGAHURU - 560 022
REPRESENTED BY ITS DIRECTORS
4. ANDHRA BANK LIMITED
NATIONALIZED BANK HAVING ITS
REGISTERED OFFICE
AT 2/3, RAJA BUILDING, N.R.ROAD
BENGALURU - 560 002
REPRESENTED BY ITS
ASSISTANT GENERAL MANAGER
5. SRI SATHYAPRASAD K
S/O GULNNESWAR ROAD
MAJOR IN AGE
RETD. DGM OF ANDHRA BANK ENIMINATED
N.R.ROAD BRANCH
2/3: RAJA BUILDING, N.R.ROAD
BENGALURU - 560 002
... RESPONDENTS
(SRI SUNIL S.RAO, ADVOCATE FOR SRI R.D.PANCHAM,
ADVOCATE FOR RESPONDENT NOS.1 AND 2
RESPONDENT NO.3 - NOTICE DISPENSED WITH VIDE ORDER
DATED 07.02.2022)
---
THIS COMMERCIAL APPEAL IS FILED UNDER SECTION
13(1A) OF COMMERCIAL COURTS ACT, PRAYING TO SET ASIDE
THE ORDER DATED 06.09.2021 MADE ON I.A.NO.VII UNDER
ORDER VII RULE 10 READ WITH SECTION 151 OF CPC BY THE
COURT OF LXXXIII ADDITIONAL CITY CIVIL AND SESSION
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JUDGE AT BENGALURU CITY (CCH-84) AND ALLOW I.A.NO.VIII
FILED BY DEFENDANTS 1 AND 2.
THIS APPEAL COMING ON FOR ORDERS THROUGH VIDEO
CONFERENCING THIS DAY, SURAJ GOVINDARAJ J.,
DELIVERED THE FOLLOWING:
JUDGMENT
1. The above Commercial Appeal has been filed
challenging the order dated 06.09.2021 passed in
Commercial O.S.No.3468/2018 by the LXXXIII
Additional City Civil and Sessions Judge at Bengaluru.
2. By way of the said order, an application which has
been filed by appellant Nos.1 and 2 under Order VII
Rule 10 of the Code of Civil Procedure, 1908 (for
short, "CPC") came to be rejected. In the said
application under Order VII Rule 10 of CPC, the
contention raised by the appellants was that the suit,
as framed, was not maintainable before the
Commercial Court as the same is barred by Sections
280 and 430 of the Companies Act, 2013 (for short,
"the Act of 2013") and the proceedings ought to have
been filed before the National Company Law Tribunal
(NCLT) at Bengaluru.
3. The Commercial Court, after considering the matter,
has dismissed the said application by holding that an
application under Order VII Rule 10 of CPC would be
maintainable only when a suit has been filed in a
wrong forum inasmuch as, the suit ought to have
been filed in a different Court, but had been filed in a
wrong Court.
4. In the present case what is sought to be contended
by Sri A.G.Shivanna, learned Senior Counsel
appearing for the appellants is that instead of a suit,
the proceedings under the Act of 2013 was
maintainable before NCLT and not that a suit has to
be filed before any other Court.
5. We do not find anything wrong in the finding of the
Commercial Court inasmuch as Order VII Rule 10 of
CPC provides for a plaint to be returned to be
presented to the Court in which the suit should have
been instituted and the procedure thereof has been
provided under Order VII Rule 10A of CPC, wherein
the Court returning the plaint is required to indicate
the Court in which the plaint has to be presented and
the time period in which the plaint is required to be
presented.
6. In the present matter even if the application, where
for a moment considered to be maintainable and the
plaint was to be rejected, the said Court could not
have directed presentation of the same before NCLT
because NCLT is not a Court which is contemplated
under Order VII Rule 10 or Order VII Rule 10A of
CPC. Thus, an application under Order VII Rule 10 of
CPC is not maintainable.
7. It is also of significance to note that on an earlier
occasion appellant Nos.1 and 2 had filed an
application under Order VII Rule 11(a) to 11(d) of
CPC contending that the suit was not maintainable,
since it is barred by law. However, the said
application was dismissed for non-prosecution, which
has not been challenged.
8. In view of the same, when an application under Order
VII Rule 10 of CPC not being maintainable in the said
circumstances, we find no infirmity in the order of the
Commercial Court in rejecting the said application.
There being no grounds made out in the appeal, the
appeal is dismissed at the stage of admission itself.
9. Pending interlocutory application does not survive for
consideration and is hence disposed of.
Sd/-
CHIEF JUSTICE
Sd/-
JUDGE
AHB
