Karnataka High Court
Syed Asmath Pasha Qhadri vs M/S. Sumeru Realty Pvt Ltd on 23 April, 2024
Author: N S Sanjay Gowda
Bench: N S Sanjay Gowda
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CRP No. 229 of 2024
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 23RD DAY OF APRIL, 2024
BEFORE
THE HON'BLE MR JUSTICE N S SANJAY GOWDA
CIVIL REVISION PETITION NO. 229 OF 2024 (IO)
BETWEEN:
1. SYED ASMATH PASHA QHADRI,
S/O SYED KHADER PASHA,
AGED ABOUT 64 YEARS,
R/AT No.275, II BLOCK,
JAYANAGAR, BENGALURU-560 011.
2. SYED SALMAN YSYF QHADRI,
S/O SYED ASMATH PASHA QHADRI,
AGED 34 YEARS,
R/AT No.275, II BLOCK, JAYANAGAR,
BENGALURU-560 011.
...PETITIONERS
(BY SRI. A.MAHESH CHOWDHARY., ADVOCATE)
AND:
Digitally
signed by
KIRAN 1. M/S SUMERU REALTY PVT LTD.,
KUMAR R COMPANY REGISTERED UNDER THE
Location:
HIGH COMPANIES ACT
COURT OF
KARNATAKA HAVING ITS OFFICE AT
2ND FLOOR, SMAVIT BUILDING,
NEXT TO ART OF LIVING ASHRAM,
OPPOSITE TO KANAKAPURA ROAD,
REPRESENTED BY ITS CEO
SRI.SUNIT SURYAKANT KALUSKAR.
2. M/S SHRIVISION LIVING SPACE PVT LTD.,
COMPANY INCORPORATED UNDER
COMPANIES ACT, 1956
HAVING ITS OFFICE AT No.40/43, 8TH MAIN,
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CRP No. 229 of 2024
4TH CROSS, RMV EXTENSION,
SADHASHIVANAGAR,
BENGALURU-560 080.
REPRESENTED BY ITS DIRECTOR,
SRI.A.M.SUBRAMANYA.
...RESPONDENTS
THIS CRP IS FILED UNDER SECTION 115 OF CPC.,
AGAINST THE ORDER DATED 26.02.2024 PASSED ON
I.A.No.VII IN COMMERCIAL OS.No.54/2023 ON THE FILE OF
THE XI ADDITIONAL DISTRICT JUDGE, BENGALURU RURAL
DISTRICT, BENGALURU, DISMISSING THE I.A.No.VII FILED
UNDER ORDER VII RULE 11(a) AND (d) OF CPC REJECTION OF
PLAINT
THIS PETITION HAVING BEEN HEARD AND RESERVED
FOR ORDERS ON 01.04.2024, COMING ON FOR
PRONOUNCEMENT THIS DAY, THE COURT MADE THE
FOLLOWING:
ORDER
1. The plaintiff - 1st respondent herein filed a suit on
the basis of a Co-Joint Development Agreement (for
brevity, "the Agreement") entered into between the
plaintiff and the 1st defendant, who represented not only
itself, but also defendants 2 and 3.
2. It was contended that the plaintiff on the basis of the
Agreement was entitled to execute the project and the
defendants had no right to interfere with the execution of
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the project, especially since the plaintiff had invested huge
sums of money.
3. In said suit, an application came to be filed by
defendants 2 and 3 seeking rejection of plaint on the
ground that the plaintiff had failed to comply with the
mandatory requirement of engaging in pre-institution
mediation and settlement. It was contended that the suit
could not have been instituted without taking recourse to
pre-institution mediation and settlement as contemplated
under Section 12A of the Commercial Courts Act, 2015
("the Commercial Courts Act Act"). It was further
contended that the Apex Court in the case of Patil
Automation1 has held that Section 12A of the Commercial
Courts Act was not a procedural provision and compliance
of Section 12A of the Commercial Courts Act was
mandatory, and since Section 12A of the Commercial
Courts Act was not complied with, the institution of suit
Patil Automation Pvt. Ltd. v. Rakheja Engineers Pvt. Ltd., (2002) 10 SCC 1.
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itself was barred by law, thereby entitling rejection of the
plaint under Order VII Rule 11 of the CPC.
4. The plaintiff resisted said application and sought to
contend that as per the observation of the Apex Court in
Shakti Bhog Food Industries2, this application was
totally misconceived.
5. The Trial Court, on consideration of the contentions
advanced by the plaintiff and defendants 2 and 3, by the
impugned order, has rejected the application filed under
Order VII Rule 11(a) and (d) of the CPC.
6. Being aggrieved by the same, defendants 2 and 3
have preferred this revision petition under Section 115 of
the CPC and the Registry has raised an objection that the
revision petition was not maintainable in view of Section 8
of the Commercial Courts Act.
Shakti Bhog Food Industries Ltd. v. The Central Bank of India and Anr.,
[2020] 6 SCR 538.
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7. Mr. Mahesh Chowdhary, learned counsel appearing
for the petitioners contended that the bar against filing a
revision petition would only pertain to an interlocutory
order passed by the Commercial Court and since an order
rejecting the application to reject the plaint could not be
construed as an interlocutory order, the bar under Section
8 of the Commercial Courts Act would not arise. He also
submitted that Section 18 of the Commercial Courts Act
was circumscribed by the condition that it was subject to
the provision of Section 13 of the Commercial Courts Act,
and Section 13 of the Commercial Courts Act provided for
an appeal against an order passed by the Commercial
Court only in respect of the orders enumerated specifically
under Order XLIII of the CPC and, thus, the defendants
could not avail of the appellate remedy since the appeal
was not provided under Order XLIII of the CPC against an
order passed on an application under Order VII Rule 11
CPC. He therefore strenuously contended that the only
remedy available to the petitioner was to file a revision.
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8. He also averred that if the Trial Court had allowed
the application filed under Order VII Rule 11 of the CPC,
the proceedings before the Commercial Court would come
to an end, and, therefore, the proviso to Section 115 of
the CPC would stand attracted, and as a consequence, the
revision would be maintainable.
9. In the light of the arguments advanced, the only
question to be considered is:
Whether a revision petition under Section
115 of the CPC can be maintained against an
order passed by the Commercial Court on an
application filed under Order VII Rule 11 of the
CPC.
10. The Law Commission of India in its report No.253
pertaining to Commercial Division and Commercial
Appellate Division of High Courts and Commercial Courts
Bill, 2015 has stated as follows (in Para 3.23.2):
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"3.23.2. It is further recommended that
notwithstanding any other law, no civil revision
application or petition shall be entertained against an
interlocutory order of the Commercial Court,
including an order on a jurisdictional challenge. The
purpose here is to prevent the time frames stipulated
for case management hearing from becoming
redundant by the frequent filing of civil revision
applications and petitions against every interlocutory
order. By removing a potential source of bottleneck
of cases, the Bill hopes to ensure the expedited
disposal of cases."
11. It is therefore clear that the Law Commission was of
the view that providing for a revisional remedy would be a
potential source of bottle neck and it would thus be
appropriate to create a bar for entertaining a civil revision
application or a petition under Section 115 of the CPC.
12. Section 8 of the Commercial Courts Act reads as
follows:
"8. Bar against revision application or petition
against an interlocutory order.-- Notwithstanding
anything contained in any other law for the time being
in force, no civil revision application or petition shall be
entertained against any interlocutory order of a
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Commercial Court, including an order on the issue of
jurisdiction, and any such challenge, subject to the
provisions of section 13, shall be raised only in an
appeal against the decree of the Commercial Court."
13. On a plain reading of Section 8 of the Commercial
Courts Act, it is clear that it starts with a non-obstante
clause and declares that a civil revision application/petition
should not be entertained against any interlocutory order
of the Commercial Court including an order on the issue of
jurisdiction and any such challenge. It is hence clear that if
the Commercial Court were to pass an interlocutory order,
the aggrieved party cannot invoke revisional jurisdiction
under Section 115 of the CPC.
14. The further emphasis in Section 8 of the Commercial
Courts Act is that the bar to invoke the revisional
jurisdiction would apply even to an order on the issue of
jurisdiction and any such challenge. The use of this
language in Section 8 would leave no room for doubt that
if an order that is passed by the Commercial Court relates
to a challenge to its jurisdiction, no revision can be filed.
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15. It cannot be in dispute that an order on an
application under Order VII Rule 11 of the CPC can be
brought within the ambit of the phrase "such other
challenge" found in Section 8 of the Commercial Courts
Act. In other words, if there is a challenge to the
maintainability of a suit filed before the Commercial Court
by making an application under Order VII Rule 11 of the
CPC, an order passed on such a challenge would not be
amenable to the revisional jurisdiction by virtue of the bar
under Section 8 of the Commercial Courts Act.
16. It is to be stated here that the use of a sweeping
remark such as "any such challenge" in Section 8 would
bring within its ambit any order passed on a challenge to
the jurisdiction of the Commercial Court to entertain a
suit. If an argument is advanced that non-compliance of a
statutory provision under the Commercial Courts Act
before the institution of suit renders the suit not
maintainable, it is clear that it would also be a challenge to
the jurisdiction of the Commercial Court and,
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consequentially, any order passed on such an application
would not be liable for a challenge by way of revision
under Section 115 of the CPC in view of the bar under
Section 8 of the Commercial Courts Act.
17. The matter may also be looked at from another
angle. The language employed by the Legislature in
Section 8 of the Commercial Courts Act makes it
unmistakably clear that the Legislature did not want the
power of revision being available in respect of any order
passed by the Commercial Court. The bar for entertaining
a revision is based basically on the premise that the
proceedings before the Commercial Court are designed for
a speedy resolution of commercial disputes within
statutorily prescribed timelines. If the Legislature was of
the view that there existed a possibility that the speedy
resolution or adherence to the timelines could be defeated
by a party invoking the ordinary remedy of revision and it
should therefore be barred, such an intent would have to
be honoured.
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18. If the matter is viewed from this angle, it would
fundamentally mean that the power available under
Section 115 of the CPC would be totally absent in the case
of an order passed by the Commercial Court. If it was the
intention of the Legislature that there should be a
complete bar for invoking the jurisdiction under Section
115 of the CPC, the argument that revision can be
preferred in respect of the proviso to Section 115 of the
CPC cannot be accepted.
19. The argument that an order passed on an application
under Order VII Rule 11 of the CPC cannot be an
interlocutory order and, therefore, the bar under Section 8
of the Commercial Courts Act is not attracted, also cannot
be accepted. As already stated above, the bar for invoking
revisional jurisdiction is not only in respect of any
interlocutory order, but also to any challenge made to the
jurisdiction of the Commercial Court to entertain a suit.
20. The further argument that Section 8 of the
Commercial Courts Act makes it clear that a bar to invoke
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the revisional jurisdiction was subject to the provision of
Section 13 of the Commercial Courts Act which provides
for an appeal, would lead to an inference that if an appeal
is not provided under Order XLIII of the CPC, necessarily,
the revisional jurisdiction under Section 115 of the CPC
would stand attracted, cannot be accepted. In Section 8 of
the Commercial Courts Act, the Legislature is basically
declaring that an appeal is provided for only in respect of
cases which are specifically enumerated under Order XLIII
of the CPC and Section 37 of the Arbitration and
Conciliation Act, and against no other order.
21. It cannot be in dispute that an appeal is a creature
of the statute and there is no inherent right to prefer an
appeal against every order. If the statutory provision
relating to appeals categorically provides for orders which
can be appealed against, no party can contend that the
remedy of a revision would be available, if a right to prefer
an appeal is not provided for.
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22. As stated above, it is clear that unmistakable intent
of the Legislature is that the revisional jurisdiction of the
High Courts under Section 115 of the CPC is completely
unavailable in respect of orders passed by the Civil Court
and in this view of the matter, it is clear that this revision
is not maintainable.
23. The reliance placed by the learned counsel for the
petitioners on the decision in the case of Shah Babulal
Khimji3 rendered by the Apex Court to contend that an
order passed under Order VII Rule 11 of the CPC cannot
be considered as an interlocutory order, but would have to
be considered as a preliminary judgment can be of no real
assistance in the said case. Even if it is accepted that an
order passed under Order VII Rule 11 of the CPC is not an
interlocutory order but is a preliminary judgment, the
power to invoke the revisional jurisdiction of this Court is
lost by virtue of the clear bar created under Section 8 of
the 2015 Act.
Shah Babulal Khimji v. Jayaben D Kania & Anr., (1981) 4 SCC 8.
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24. Even if the judgments are to be applied, an order
passed on an application under Order VII Rule 11 of the
CPC would be a preliminary judgment and an appeal
against a preliminary judgment can be filed only if it is
specifically provided under a statute. Since no appeal is
provided for against a preliminary judgment, such as the
one passed under Order VII Rule 11 of the CPC, it is clear
that the petitioners would have no right to prefer an
appeal under Section 13 of the Commercial Courts Act
also.
25. Learned counsel for the petitioners also placed
reliance on the decision rendered by the Delhi High Court
in the case of Black Diamond Trackparts Pvt. Ltd.4 In this
case, the Division Bench has, in fact, observed that a
revision under Section 115 of the CPC is barred against
the orders passed under the Commercial Courts Act, but a
petition under Articles 226 and 227 of the Constitution of
India would be available. This judgment would not support
Black Diamond Trackparts Pvt. Ltd. & Ors v. Black Diamond Motors Pvt.
Ltd., 2021 SCC OnLine Del 3946.
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the filing of a revision against an order passed by the
Commercial Court.
26. Reliance placed on the judgment rendered by the
Madras High Court in the case of Ramanan
Balagangatharan5 would also be of no avail, because a
challenge therein was made to an interim order passed by
the learned Single Judge of the Madras High Court by filing
a petition under Articles 226 and 227 of the Constitution of
India and, in the context of that case, the Madras High
Court came to the conclusion that the supervisory
jurisdiction under Articles 226 and 227 of the Constitution
of India could be exercised by the High Court only in case
of subordinate Courts and the learned Single Judge of that
Court could not be considered as a subordinate to the High
Court.
27. In this view of the matter, it is clear that a revision
against an order passed by the Commercial Court, even if
Ramanan Balagangatharan v. M/S Rise East Entertainment Pvt. Ltd., C.R.P
(Sr) No.92516/2021.
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it is one under Order VII Rule 11 of the CPC, would not be
maintainable. The office objection is upheld and
consequently, the revision petition is rejected as not
maintainable.
28. However, rejection of this revision petition will not
preclude the petitioners from invoking supervisory
jurisdiction of this Court under Article 227 of the
Constitution of India.
Sd/-
JUDGE
PKS
