Karnataka High Court
Smt S Harshini vs Smt P Sunitha on 4 September, 2024
Author: R Devdas
Bench: R Devdas
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NC: 2024:KHC:36389
WP No. 20403 of 2024
C/W WP No. 16534 of 2024
WP No. 20401 of 2024
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 4TH DAY OF SEPTEMBER, 2024
BEFORE
THE HON'BLE MR JUSTICE R DEVDAS
WRIT PETITION NO. 20403 OF 2024 (GM-CPC)
C/W
WRIT PETITION NO. 16534 OF 2024 (GM-CPC)
WRIT PETITION NO. 20401 OF 2024 (GM-CPC)
IN WP No. 20403/2024
BETWEEN:
SMT. S. HARSHINI
WIFE OF SHRI D.SUDHAKARA
AGED ABOUT 48 YEARS
R/AT NO.12, 4TH CROSS
GANDHINAGAR,
BENGALURU - 560 009
...PETITIONER
(BY SRI. D.R. RAVISHANKAR., SR. COUNSEL A/W
SRI. KRISHNA MURTHY V., ADVOCATE)
Digitally signed by
DHARMALINGAM AND:
Location: HIGH
COURT OF
KARNATAKA 1. SMT P SUNITHA
W/O DOCTOR B. GURAPPA NAIDU
HINDU,
AGED ABOUT 55 YEARS
R/AT NO.42, 6TH CROSS
3RD BLOCK, JAVARALAH GARDEN
THYAGARAJANAGAR
BENGALURU-560 028.
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NC: 2024:KHC:36389
WP No. 20403 of 2024
C/W WP No. 16534 of 2024
WP No. 20401 of 2024
2. SHRI. SRINIVASA MURTHY
S/O LATE JAYAPAL
AGED ABOUT 45 YEARS
R/AT NO.33, 1ST MAIN 1ST CROSS,
ADARSHNAGAR, BENGALURU 560075
3. SHRI. MURTHY N.N
W/O LATE N. NARASIMHAIAH
AGED ABOUT 65 YEARS
R/AT NO.498, 6TH MAIN 5 CROSS,
NGEF LAYOUT NAGARABHAVI
BENGALURU 560 072
4. SHRI. C.J. GOPINATH NAIDU
S/O C.G.JAGANNATH NAIDU
AGED ABOUT 54 YEARS
R/AT NO.99, BILIGIRI HOUSE
OPP BANDE MARAMMA BUS STAND
NAGARBHAVI 2ND STAGE
BENGALURU 560 072
5. SHRI. K.YASHWANTH SINGH
S/O LATE T. KRISHNA SINGH
AGED ABOUT 51 YEARS
R/AT NO.1219 1ST MAIN, 1ST CROSS
VIJAYANAGAR, BENGALURU - 560 040
6. M/S. HOORNAPRIYA AMBA FUELS (R)
SURVEY NO.27 2/2 (OLD SURVEY
NO.122/1)PREVIOUSLY SURVEY NO.122/2
AND EARLIER SURVEY NO. 122 AND 122/3
KENGERI VILLAGE, KENGERI HOBLI
MYSORE ROAD, BENGALURU SOUTH TALUK
REPRESENTED BY ITS PARTNER
SHRI. M.R. BHAGWAN SINGH
REGISTERED UNDER PARTNERSHIP ACT
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NC: 2024:KHC:36389
WP No. 20403 of 2024
C/W WP No. 16534 of 2024
WP No. 20401 of 2024
7. M/S. SREE BRINDAVAN ENTERPRISES
NO.707, MODI HOSPITAL ROAD
RAJAJINAGAR, BENGALURU-560010
REPRESENTED BY ITS MANAGING PARTNER
SHRI. M. RAGHAVENDRA
REGISTERED UNDER PARTNERSHIP ACT
...RESPONDENTS
(BY SRI. K.N. PHANINDRA., SR. COUNSEL FOR
SRI. NAGARAJULU NAIDU G., &
SRI. PAVAN G.N. ADVOCATE FOR R1)
THIS WRIT PETITION IS FILED UNDER ARTICLE 227 OF
THE CONSTITUTION OF INDIA PRAYING TO VIDE COURT
ORDER DATED 30.07.2024 THIS CRP NO. 436/2024 HAS
CONVERTED INTO W.P.NO. 20403/2024THIS W.P. IS FILED
PRAYING TO QUASH THE ORDER DTD. 23.04.2024 PASSED IN
COM.O.S.NO. 745/2023 BY THE LXXXVIII ADDITIONAL CITY
CIVIL AND SESSIONS JUDGE, COMMERCIAL COURT,
BENGALURU (CCH-89) IN I.A. NO. 14 FILED UNDER ORDER VII
RULE 11(D) CPC VIDE (ANNX-F) AND ETC.
BETWEEN:
M/S HOORNAPRIYA AMBA FUELD (R)
SURVEY NO 27 2/2 (OLD SURVEY NO 122/1)
PREVIOUSLY SURVEY NO 122/2 AND
KENGERI VILLAGE,KENGERI HOBLI,
MYSORE ROAD,
BENGALURU SOUTH TALUK
REPRESENTED BY ITS PARTNER
SHRI M R BHAGWAN SINGH
...PETITIONER
(BY SRI. D.R. RAVISHANKAR., SR. COUNSEL A/W
SRI. KRISHNA MURTHY V., ADVOCATE)
NC: 2024:KHC:36389
AND:
1. SMT P SUNITHA
W/O DOCTOR B GURAPPA NAIDU
HINDU, AGED ABOUT 25 YEARS
R/AT NO 42, 6TH CROSS
3RD BLOCK, JAVARAIAH GARDEN
THYAGARAJANAGAR
BENGALURU - 560028
2. SMT S HARSHINI
W/O SHRI D SUDHAKAR
AGED ABOUT 48 YEARS
R/AT NO 12, 4TH CROSS
GANDHINAGAR BENGALURU-560009
3. SHRI SRAVANA MURTHY
S/O LATE JAYAPAL
AGED ABOUT 45 YEARS
R/AT NO 33, 1ST MAIN 1ST CROSS
ADARSH NAGAR BENGALURU-560075
4. SHRI MURTHY N N
W/O LATE N NARASIMHAIAH
AGED ABOUT 65 YEARS,
R/AT NO 498, 6TH MAIN 5TH CROSS,
NGEF LAYOUT NAGARABHAVI
BENGALURU -560072
5. SHRI C J GOPINATH NAIDU
S/O C G JAGANNATH NAIDU
AGED ABOUT 54 YEARS
R/AT NO 99 BILIGIRI HOUSE,
OPP BANDE MARAMMABUS STAND
NAGARBHAVI 2ND STAGE
BENGALURU - 560072
NC: 2024:KHC:36389
6. SHRI K YASHWANTH SINGH
S/O LATE T KRISHNA SINGH
AGED ABOUT 51 YEARS
R/AT NO 1219 1ST MAIN
1ST CROSS VIJAYANAGAR
BENGALURU - 560040
7. M/S SREE BRINDAVAN ENTERPRISES
NO 707 MODI HOSPITAL ROAD
RAJAJINAGAR BENGALURU-560010
REPRESENTED BY ITS MANAGING PARTNER
SHRI M RAGHAVENDRA
...RESPONDENTS
(BY SRI. K.N. PHANINDRA., SR. COUNSEL FOR
SRI. NAGARAJULU NAIDU G., &
SRI. PAVAN G.N. ADVOCATE FOR R1)
THIS WRIT PETITION IS FILED UNDER ARTICLES 226 &
227 OF THE CONSTITUTION OF INDIA PRAYING TO VIDE
COURT ORDER DATED 30.07.2024 THIS CRP NO. 436/2024
HAS CONVERTED INTO W.P.NO. 20403/2024 AND PRAYING
TO QUASH THE ORDER DTD. 23.04.2024 PASSED IN
COM.O.S.NO. 745/2023 BY THE LXXXVIII ADDITIONAL
CITY CIVIL AND SESSIONS JUDGE, COMMERCIAL COURT,
BENGALURU (CCH-89) IN I.A. NO. 14 FILED UNDER ORDER
VII RULE 11(D) CPC VIDE (ANNX-F) AND ETC.
BETWEEN:
SMT S HARSHINI
W/O SHRI D SUDHAKARA,
AGED ABOUT 48 YEARS,
R/AT NO. 12, 4TH CROSS,
GANDHINAGAR, BENGALURU - 560 009.
...PETITIONER
(BY SRI. D.R. RAVISHANKAR., SR. COUNSEL A/W
SRI. KRISHNA MURTHY V., ADVOCATE)
NC: 2024:KHC:36389
AND:
1. SMT P SUNITHA
W/O DOCTOR B GURAPPA NAIDU,
HINDU, AGED ABOUT 55 YEARS,
R/AT NO. 42, 6TH CROSS,
3RD BLOCK, JAVARAIAH GARDEN,
THYAGARAJANAGAR,
BENGALURU - 560 028.
2. SHRI SRAVANA MURTHY
S/O LATE JAYAPAL
AGED ABOUT 45 YEARS,
R/AT NO. 33, 1ST MAIN,
1ST CROSS, ADARSHANAGAR,
BENGALURU - 560 075.
3. SHRI MURTHY N N
W/O LATE N NARASIMHAIAH,
AGED ABOUT 65 YEARS,
R/AT NO. 498, 6TH MAIN,
5TH CROSS, NGEF LAYOUT,
NAGARABHAVI,
BENGALURU - 560 072.
4. SHRI C J GOPINATH NAIDU
S/O C G JAGANNATH NAIDU,
AGED ABOUT 54 YEARS,
R/AT NO. 99, BILIGIRI HOUSE,
OPP BANDE MARAMMA BUS STAND,
NAGARBHAVI 2ND STAGE,
BENGALURU - 560 072.
5. SHRI K YASHWANTH SINGH
S/O LATE T KRISHNA SINGH,
AGED ABOUT 51 YEARS,
R/AT NO. 1219, 1ST MAIN,
1ST CROSS, VIJAYANAGAR
BENGALURU - 560 040.
NC: 2024:KHC:36389
6. M/S HOORNAPRIYA AMBA FUELS R
SURVEY NO. 27 2/2
(OLD SURVEY NO. 122/1)
AND EARLIER SURVEY NO. 122 AND 122/3,
KENGERI VILLAGE, KENGERI HOBLI,
MYSORE ROAD, BENGALURU SOUTH TALUK,
REPRESENTED BY ITS PARTNER,
SHRI M R BHAGWAN SINGH.
REGISTER UNDER PARTNERSHIP ACT
7. M/S SREE BRINDAVAN ENTERPRISES
NO. 707, MODI HOSPITAL ROAD,
RAJAINAGAR, BENGALURU 560 010.
REPRESENTED BY ITS MANAGING PARTNERS,
SHRI M RAGHAVENDRA.
REGISTER UNDER PARTNERSHIP ACT
...RESPONDENTS
(BY SRI. K.N. PHANINDRA., SR. COUNSEL FOR
SRI. NAGARAJULU NAIDU G., &
SRI. PAVAN G.N. ADVOCATE FOR R1)
THIS WRIT PETITION IS FILED UNDER ARTICLE 227 OF
THE CONSTITUTION OF INDIA PRAYING TO VIDE COURT
ORDER DATED 30.07.2024 THIS CRP NO. 436/2024 HAS
CONVERTED INTO W.P.NO. 20403/2024 AND PRAYING TO
QUASH THE ORDER DTD. 23.04.2024 PASSED IN
COM.O.S.NO. 745/2023 BY THE LXXXVIII ADDITIONAL
CITY CIVIL AND SESSIONS JUDGE, COMMERCIAL COURT,
BENGALURU (CCH-89) IN I.A. NO. 14 FILED UNDER ORDER
VII RULE 11(D) CPC VIDE (ANNX-F) AND ETC.
THESE PETITIONS, COMING ON FOR ORDERS, THIS DAY,
ORDER WAS MADE THEREIN AS UNDER:
NC: 2024:KHC:36389
CORAM: HON'BLE MR JUSTICE R DEVDAS
ORAL COMMON ORDER
Learned Counsel Sri. G. Nagarajulu Naidu, has
entered appearance for respondent No.1, who is the
plaintiff and the contesting respondent in these writ
petitions. The other respondents are co-defendants along
with the petitioner and therefore, there is no need to issue
notice to other respondents.
2. Since, all the three writ petitions arise out of the
orders passed in Com.O.S.No.745/2023, the three writ
petitions are heard together and disposed of by this
common order.
3. Respondent No.1 filed the commercial original suit
seeking directions to the defendants to quite, deliver and
hand over vacant possession of the suit schedule property;
pay arrears of rents of Rs.4,94,23,242/- as on 31.07.2022
with periodical enhancement as agreed to in the Lease
Deed dated 09.04.2015 along with interest at the rate of
18% per annum; to pay Rs.36,72,500/- towards service
NC: 2024:KHC:36389
tax and GST of Rs.1,25,84,349/- along with interest and
for damages. Defendant No.1 filed written statement and
counter claim seeking declaration that the registered
Lease Deed dated 09.04.2015 is void and unenforceable;
for mandatory injunction directing the plaintiffs to execute
a fresh registered Lease Deed in favour of defendant No.1
for a period of 25 years from 06.01.2023 by obtaining
change of land use from industrial purpose to commercial
purpose; for permanent injunction restraining the plaintiff/
defendant No.1 from interfering with the peaceful
possession and enjoyment of the suit schedule property.
The petitioner/ defendant No.1 also filed an application in
I.A.No.14 under Order VII Rule 11(d) of CPC for rejection
of the plaint as barred by law. Defendant No.6 filed
I.A.No.15 under Order VIII Rule 1 and 2 of CPC for
recalling the orders dated 22.03.2024 whereby the written
statement filed by defendant No.6 was rejected and to
take written statement on record and the plaintiff filed
I.A.No.13 under Section 151 of CPC to direct defendant
No.1 to deposit the admitted rent of Rs.10,00,000/- per
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month from the date of filing of the suit till the date of
disposal. By the impugned orders, the Commercial Court
has allowed I.A.No.13 filed by the plaintiff and has issued
direction to defendant No.1/petitioner herein to deposit a
sum of Rs.10,00,000/- per month (equivalent to admitted
rent) from the date of the suit till the date of disposal of
the suit within a period of four weeks from the date of the
order and to continue to deposit the rental during the
pendency of the suit. I.As.No.14 and 15 were rejected.
4. Learned Senior Counsel Sri.D.R.Ravishankar,
appearing on behalf of the petitioner/defendant No.1
contended that the application was filed under Order VII
Rule 11(d) of CPC having regard to the fact that the
dispute brought before the Court is not a commercial
dispute, in view of the fact that the suit schedule property
was not used exclusively in trade or commerce as on the
date when the parties entered into an agreement.
Attention of this Court is drawn to sub-clause (vii) of
clause (c) of sub-section (1) of Section 2 of the
Commercial Courts Act, 2015. Reliance was also placed on
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a judgment of the Hon'ble Supreme Court in the case of
AMBALAL SARABHAI ENTERPRISE LIMITED VS. KS
INFRASPACE LLP LIMITED, (2020) 15 SCC 585. Learned
Senior Counsel submitted that having regard to the
definition of the word "commercial dispute" as found in
Section 2 of the Act and more particularly, sub-clause (vii)
of clause (c), the Hon'ble Supreme Court has held that the
expression "used" must mean "actually used" or "being
used". It was further explained that if the intention of the
legislature was to expand the scope, in that case, the
phraseology "likely to be used" or "to be used" would have
been employed.
5. Learned Senior Counsel submitted that in a
concurring judgment the Hon'ble Supreme Court has laid
emphasis on the statement of objections and reasons of
the Commercial Courts Act, 2015 and held that if the
provisions are given a liberal interpretation, the object
behind constitution of Commercial Division of Courts, viz.,
putting the matter on fast track and speedy resolution of
commercial disputes, will be defeated. The object shall be
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fulfilled only if the provisions of the Act are interpreted in a
narrow sense and not hampered by the usual procedural
delays plaguing our traditional legal system.
6. Per contra, learned Senior Counsel
Sri.K.N.Phanindra, appearing for respondent No.1/plaintiff
submitted that the judgment sought to be relied upon by
the petitioner is not applicable to the facts of the case on
hand. It was submitted that in the decision cited, the
prayer was for execution of the Mortgage Deed which is in
the nature of specific performance in the terms of the
Memo of Understanding, without reference to the nature of
the use of the immovable property in trade or commerce
as on the date of the suit. It is submitted that in the
present case the relief sought is for recovery of rents,
which would mean that the defendants have put to use the
suit schedule property for commercial purpose and rentals
are also determined, accordingly, having regard to the fact
that the suit schedule property is used for commercial
purpose. In that view of the matter, learned Senior
Counsel submitted that the Commercial Court has rightly
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rejected the application filed by the petitioner/defendant
No.1 under Order VII Rule 11 (d) of CPC.
7. Having heard the learned Senior Counsel and on
perusing the petition papers, this Court finds that there is
substance in the submissions made by the learned Senior
Counsel appearing for respondent No.1/plaintiff. Insofar
as the application filed by the petitioner/defendant No.1
seeking rejection of the plaint on the ground that the
dispute brought before the Commercial Court is not a
"commercial dispute" having regard to the definition, more
particularly, sub-clause (vii) of clause (c), as on the date
when the parties entered into an agreement to lease out
the property, the property was put to use for commercial
purpose has rightly been addressed by the Commercial
Court.
8. This Court is one with learned Counsel for
respondent No.1, since the nature of the prayer made by
the plaintiff before the Commercial Court is for recovery of
the arrears of rent. The facts narrated in the plaint clearly
shows that after the Lease Deed was entered into, the
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defendants have taken possession of the suit schedule
property and have put it to commercial use in terms of the
agreement. The Lease Deed was entered into on
09.04.2015 and the claim of the plaintiff for payment of
arrears of rent is commencing from 01.01.2022. It is
pointed out from the counter claim filed by the petitioner
herein that the petitioner/defendant No.1 admits the
payment of rentals commencing from 08.04.2015 to
29.12.2021. Therefore, the petitioner cannot contend that
the suit schedule property has not been put to commercial
use. The judgment cited by the learned Senior Counsel for
the petitioner is required to be considered in the light of
the claim made by the plaintiff. Having regard to the
claim made by the recovery of arrears of rent, it cannot be
disputed that the lis brought before the Court is a
commercial dispute. In that view of the matter, this Court
does not find any merit in the writ petition insofar as the
application filed under Order VII Rule 11 (d) of CPC.
9. Insofar as I.A.No.13 is concerned, where
directions are issued by the Commercial Court to the
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petitioner/defendant No.1 to deposit the arrears of rent at
the rate of 10,00,000/- (Rupees Ten Lakhs only) per
month from the date of the suit till disposal of the suit, the
learned Senior Counsel for the petitioner submitted that
reasonable time may be granted to the petitioner/
defendant No.1 to deposit the same.
10. Insofar as I.A.No.15 is concerned, the learned
Senior Counsel appearing for the petitioner has fairly
submitted that the issue stands covered by a judgment of
the Hon'ble Supreme Court which has been taken into
consideration in the impugned order.
11. Consequently, the writ petitions stand disposed
of while permitting the petitioner/defendant No.1 to
deposit the arrears of rent as directed by the Commercial
Court within a period of sixty (60) days from the date of
receipt of a copy of this order. Ordered accordingly.
12. Pending I.As., if any, stand disposed of.
Sd/-
(R DEVDAS)
JUDGE
DL
