M/S. Gregorian Millennium ... vs M/S. Alex Enterprises
2022 Latest Caselaw 5720 Kant

                           -1-


IN THE HIGH COURT OF KARNATAKA AT BENGALURU

       DATED THIS THE 30TH DAY OF MARCH, 2022

                        PRESENT

THE HON'BLE MR. RITU RAJ AWASTHI, CHIEF JUSTICE

                           AND

     THE HON'BLE MR.JUSTICE S.R.KRISHNA KUMAR

         COMMERCIAL APPEAL NO.210 OF 2021
                      C/W
         COMMERCIAL APPEAL NO.247 OF 2021


IN COMAP No.210/2021

BETWEEN:

M/S SHAJI M. ALEX
S/o M.M.ALEXANDER
AGED ABOUT 59 YEARS
M/S. ALEX ENTERPRISES
PROPRIETORSHIP CONCERN,
HAVING IS OFFICE AT
NO.B-1265, MITTAL TOWERS,
M.G.ROAD, BANGALORE-560001.
                                          ...APPELLANT

(BY SRI ASHOK HARANAHALLI, SENIOR ADVOCATE FOR
    SRI KRISHNA.S.VYAS, ADVOCATE)


AND:

1.     M/S GREGORIAN MILLENNIUM
       ASSOCIATION (GMA)
       AN ASSOCIATION OF PERSONS
       HAVING ITS OFFICE AT ROOM NO.2,
       ST.GREGORIOUS ORTHODOX
       CATHEDRAL ANNEX, NO. 18/1,
       HOSUR ROAD, RICHMOND TOWN,
       BANGALORE-560025,
       REPRESENTED BY ITS SECRETARY.

2.     MRS THANKAMMA CHACKO
       AGED ABOUT 90 YEARS,
                             -2-


     W/O.LATE.K.N.CHACKO,
     R/O.NO.280, KALLUNAKATHARA,
     AYAMANAM, KOTTAYAM,
     KERALA.

3.   MRS SALY CHERIAN
     D/O.LATE K.N.CHACKO,
     AGED ABOUT 62 YEARS,
     R/O MANJOOR VILLAGE,
     VIAKOM TALUK,
     KOTTAYAM 686611.

4.   MR MOHAN JACOB
     S/O LATE K.N.CHACKO,
     R/O.KALLUMKATHARA HOUSE,
     VALIDU BHAGHOM,
     AYAMANAM KARA,
     AYAMANAM VILLAGE,
     KOTTAYAM TALUK,
     KOTTAYAM 686015.

5.   MR AJAY ABRAHAM
     C/O MR MOHAN JACOB,
     R/O. KALLUMKATHARA HOUSE,
     VALIDU BHAGHOM,
     AYMANAM KARA,
     AYMANAM VILLAGE,
     KOTTAYAM TALUK,
     KOTTAYAM 686015.

6.   MRS. ANU ABRAHAM
     C/O MR.MOHAN JACOB,
     R/O.KALLUMKATHARA HOUSE,
     VALIDU BHAGHOM AYMANAM KARA
     AYMANAM VILLAGE,
     KOTTAYAM TALUK,
     KOTTAYAM 686015.
                                         ...RESPONDENTS

(BY SRI K.R.KRISHNAMURTHY, ADVOCATE FOR R1
    SRI.PRAKASH.T.HEBBAR, ADVOCATE FOR R2 TO R4)


     THIS COMAP IS FILED UNDER SECTION 13(1-A) OF THE
COMMERCIAL COURTS ACT, PRAYING TO SET ASIDE THE
IMPUGNED ORDER IN I.A.NO.3/2017 DATED:21.10.2021
PASSED IN COM.O.S.NO.993/2021 BY THE LEARNED X ADDL.
DISTRICT AND SESSIONS JUDGE (DEDICATED COMMERCIAL
COURT), BENGALURU RURAL DISTRICT AT BENGALURU, VIDE
ANNEXURE-A AND CONSEQUENTLY ALLOW I.A.NO.3/2021 IN
COM.O.S.NO.993/2021 VIDE ANNEUXRE-B7 AND ETC.
                               -3-


IN COMAP No.247/2021

BETWEEN:

M/S GREGORIAN MILLENNIUM
ASSOCIATION (GMA)
AN ASSOCIATION OF PERSONS (R)
ROOM NO.2, ST.GREGORIOUS ORTHODOX
CATHEDRAL ANNEX, #NO. 18/1,
HOSUR ROAD, RICHMOND TOWN,
BANGALORE-560001,
REPRESENTED BY ITS SECRETARY
K.RENY PHILIP
                                                   ...APPELLANT

(BY SRI K.R.KRISHNAMURTHY, ADVOCATE)

AND:

M/S.ALEX ENTERPRISES
REGISTERED PROPRIETORSHIP CONCERN
HAVING ITS REGISTERED OFFICE AT
NO.B-1263, MITTAL TOWERS,
M.G.ROAD, BANGALORE - 560 001
REPRESENTED BY ITS PROPRIETOR
MR.S.M.ALEX
                                                  ...RESPONDENT

(BY SRI ASHOK HARANAHALLI, SENIOR ADVOCATE FOR
    SRI KRISHNA.S.VYAS, ADVOCATE FOR C/RESPONDENT)

       THIS COMAP IS FILED UNDER SECTION 13(1-A) OF THE
COMMERCIAL COURTS ACT, PRAYING TO SET ASIDE THE
IMPUGNED ORDER DATED 25.11.2021 PASSED BY THE LXXXVIII
ADDITIONAL    CITY   CIVIL   JUDGE   (EXCLUSIVE   COMMERCIAL
COURT) CCH-89 AT BENGALURU CITY, IN COM.A.A.NO.92/2021,
PRODUCED AT ANNEXURE-A AND FURTHER BE PLEASED TO
DISMISS THE APPLICATION FILED UNDER SECTION 9 OF THE
ARBITRATION     AND      CONCILIATION      ACT,     1996   IN
COM.A.A.NO.92/2021, SEEKING FOR INTERIM PROTECTION,
PRODUCED AT ANNEXURE-B AND ETC.


       THESE APPEALS COMING ON FOR ADMISSION THIS DAY,
S.R.KRISHNA KUMAR J. DELIVERED THE FOLLOWING:
                                -4-


                           JUDGMENT

In COMAP No.210/2021

This appeal by defendant No.1 in

Com.O.S.No.993/2021 is directed against the impugned

order dated 21.10.2021 passed by the 10th Additional

District and Sessions Judge (Dedicated Commercial Court)

Bengaluru Rural District, Bengaluru whereby, the

application-I.A.No.III filed by the appellant under Section 8

of the Arbitration and Conciliation Act, 1996 (for short 'the

said Act of 1996) was dismissed by the Commercial Court.

2. Heard Sri.Ashok Haranahalli, learned Senior

counsel for the appellant and Sri.Krishanmurthy, learned

counsel for respondent No.1 and perused the material on

record.

3. In addition to reiterating the various

contentions urged in the appeal and referring to the

material on record, learned Senior counsel for the appellant

submits that the suit was filed originally before the Civil

Court on 22.04.2016 and the appellant/defendant No.1

having appeared on 19.10.2016, the matter was posted to

06.03.2017 for filing of written statement. On that date,

since the appellant/defendant No.1 did not file its written

statement, the written statement on behalf of the

appellant/defendant No.1 was taken as not filed and the

matter was adjourned. Subsequently on 30.08.2017, the

appellant/defendant No.1 filed the instant application-

I.A.No.III under Section 8 of the said Act of 1996 seeking

reference of the dispute to arbitration on the ground that

there exists a valid and binding arbitration agreement

between the parties in relation to the dispute between them

and consequently, the dispute between the parties deserves

to be referred to arbitration. The said application having

been opposed by respondent No.1/plaintiff, the Commercial

Court proceeded to dismiss the application, aggrieved by

which, the appellant is before this Court by way of the

present appeal.

4. Per contra, learned counsel for respondent No.1

submits that the impugned order passed by the Commercial

Court is just and proper in as much as the specific time

lines prescribed by the Commercial Court do not permit

filing of written statement beyond the period of 120 days

especially when no extension of time was sought for by the

appellant and under these circumstances, in the absence of

written statement having been filed by the

appellant/defendant No.1 within the time lines prescribed

under the Commercial Courts Act, 2015, the question of the

appellant seeking reference to arbitration under Section 8

of the said Act of 1996 would not arise and consequently,

the impugned order passed by the Commercial Court does

not warrant interference by this Court. It is also pointed out

that the appellant having subjected itself to the jurisdiction

of the Commercial Court by filing an application seeking

permission to file the written statement and to fix a

separate time for filing the written statement as

contemplated under Section 15(4) of the Commercial

Courts Act, 2015, the appellant is estopped from seeking

reference to arbitration. It is, therefore, contended that

there is no merit in the appeal and the same is liable to be

dismissed.

5. Though several contentions have been urged by

both sides in support of their respective claims, the

undisputed material on record discloses that on

06.03.2017, the Trial Court noted that the

appellant/defendant No.1 had not filed its written

statement; thereafter, the matter was adjourned to

30.08.2017, on which day, the appellant having filed the

instant application-I.A.No.III under Section 8 of the said Act

of 1996, the right to seek reference under Section 8 of the

said Act of 1996 had clearly accrued and stood crystallised

in favour of the appellant who had not filed/submitted its

first statement on the substance of the dispute prior to

filing the application-I.A.No.III as required under Section 8

of the said Act of 1996. It is an undisputed fact that the

matter was transferred to the Commercial Court

subsequent to 30.08.2017 on which date I.A.No.III was

filed by the appellant.

6. Under these circumstances, in the light of the

undisputed fact that the appellant had filed the instant

application-I.A.No.III on 30.08.2017 which is not later than

the date of submitting its first statement on the substance

of the dispute and the corresponding legal/statutory right

having accrued and stood crystallised in its favour to seek

reference of the dispute to arbitration under Section 8 of

the said Act of 1996, the subsequent conduct of the

appellant in submitting itself to the jurisdiction or any other

circumstances cannot made the basis to consider I.A.No.III.

It is also relevant to state that the sole ground on which

I.A.No.III was rejected was that the application was filed

beyond the timelines prescribed under the Commercial

Courts Act, 2015; however, the Trial Court failed to

consider and appreciate that as on 30.08.2017 when

I.A.No.III was filed, the matter was pending before the Trial

Court and was transferred to the Commercial Court only

subsequently and as such, the timelines under the Act did

not apply to I.A.No.III filed prior to transfer and

consequently, the impugned order passed by the

Commercial Court deserves to be set aside.

7. It is also relevant to state that apart from

summarily dismissing the application-I.A.No.III on the

ground that the same was not filed within the time lines

prescribed under the Commercial Courts Act, 2015, the

Commercial Court has not rendered any finding with regard

to the merits/demerits of the rival contentions and

consequently, the impugned order passed by the

Commercial Court rejecting the application only on the

ground of delay/limitation deserves to be set aside and the

application deserves to be remitted back to the Commercial

Court for reconsideration afresh on merits in accordance

with law.

8. In the result, we pass the following:

ORDER

i) The appeal is hereby allowed.

ii) The impugned order dated 21.10.2021 passed in Com.O.S.No.993/2021 is hereby set aside.

(iii) The matter is remitted back to the Commercial Court, for reconsideration of I.A.No.III afresh in accordance with law, by leaving open all contentions on merits to be decided by the Commercial Court except the issue with regard to delay/limitation in filing I.A.No.III which stands concluded in favour of the appellant by this order.

iv) Liberty is reserved in favour of the parties to move applications seeking appropriate/ suitable reliefs as they deem fit and the same shall be considered by the Commercial Court in accordance with law.

IN COMAP No.247/2021


      9.      In    view   of   the        order   passed    in   COMAP

No.210/2021, the appeal does not survive. It is dismissed

as infructuous. Even otherwise, the appeal is infructuous

due to efflux of time.

- 10 -

10. The pending interlocutory applications in both

the appeals stand disposed of.

Sd/-

CHIEF JUSTICE

Sd/-

JUDGE

VM