Kerala High Court
Insight Project Management ... vs Shriram Epc Ltd on 20 February, 2024
Author: V.G.Arun
Bench: V.G.Arun
CRP No.379 of 2021 1
CR
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE V.G.ARUN
TUESDAY, THE 20TH DAY OF FEBRUARY 2024 / 1ST PHALGUNA, 1945
CRP NO. 379 OF 2021
AGAINST THE ORDER/JUDGMENT OS 33/2019 OF ASSISTANT SESSIONS
COURT/SUB COURT,KATTAPPANA
REVISION PETITIONER/PLAINTIFF:
INSIGHT PROJECT MANAGEMENT CONSULTANTS,
REGISTERED OFFICE AT USHUS, S.H. MOUNT P.O, KOTTAYAM
686 006, REPRESENTED BY ITS SOLE PROPRIETOR, LAKSHMI
NARAYAN.
BY ADV ALEX.M.SCARIA
RESPONDENTS/DEFENDANTS:
1 SHRIRAM EPC LTD.,
REGISTERED OFFICE 4TH FLOOR, SIGAPPI ACHI BUILDING
18/3,RUKMANI LAKSHMIPATHI SALAI, MARSHALLS RAOD,
EGMORE, CHENNAI, PIN - 600008
2 KOSAMATTAM FINANCE LTD,
HAVING ITS OFFICE AT KOSAMATTAM BUILDING, MARKET
JUNCTION, M.L. ROAD, KOTTAYAM P.O, KOTTAYAM DISTRICT,
PIN 600001, REPRESENTED BY ITS MANAGING DIRECTOR.
BY ADVS.
JOHN JOSEPH VETTIKAD
R.RAMADAS
C.JOSEPH JOHNY(K/107/2007)
ADV.T.SHIVADAS FOR R2
THIS CIVIL REVISION PETITION HAVING COME UP FOR ADMISSION ON
12.12.2024, THE COURT ON 20/02/2024 DELIVERED THE FOLLOWING:
CRP No.379 of 2021 2
CR
V.G.ARUN J.
-------------------------------------
C.R.P. No. 379 of 2021
---------------------------------
Dated this the 20th day of February 2024
ORDER
The revision petitioner is the plaintiff in OS No.33 of
2019 of the Subordinate Judge's Court, Kattappana. The
suit was initially filed before the Munsiff's Court,
Kattappana, seeking perpetual injunction against the
defendants/respondents and was numbered as
O.S.No.418 of 2014. Thereafter, the suit was amended
and the additional relief of damages with interest at the
rate of 18% per annum, incorporated. The suit, as
amended, being beyond the pecuniary jurisdiction of the
Munsiff Court, the plaint was returned for presentation
before the proper court. Accordingly, the plaint was re-
presented before the Sub Court, Kattappana and was
numbered OS No.33 of 2019. The defendants entered
appearance and raised a preliminary objection,
contending that the Sub Court lacked subject matter
jurisdiction to accept and entertain the amended plaint,
since the transaction, which is the subject matter of the
suit, is a commercial transaction. In response, the
revision petitioner contended that the plaint having been
returned from the Munsiffs Court under Order VII Rule 10
of the Code of Civil Procedure, the suit before the Sub
Court is a continuation of the suit originally filed. The suit
having been filed before introduction of the Commercial
Courts, Commercial Division and Commercial Appellate
Division of High Courts (Amendment) Act, 2018 ("the
Commercial Courts Amendment Act" for short), the Sub
Court can proceed with the suit based on the re-
presented plaint.
2. The court below, after detailed consideration, rejected
the contention that the suit before the Sub Court is
continuation of the suit instituted before the Munsiff's Court,
Kattappana and held that the re-presented plaint is nothing
but a fresh plaint. It was further held that, as the
Commercial Courts Act, 2015 had come into force on
23/10/2015 and the plaint was re-presented only on
08/07/2019, after the Commercial Courts Amendment Act
had also come into effect, only Commercial Court had
jurisdiction to entertain the suit. Relying on the decision in
C.K.Surendran v. Kunhimoosa (MANU /KE/2143/2021) , it
was held that, since the suit was not transferred under
Section 15(2) of the Commercial Courts Act, it can only be
returned under Order VII Rule 10 of CPC.
3. The learned Counsel for the revision petitioner
submitted that the court below went wrong in holding that
the plaint could not have been presented before the
Subordinate Judge's Court after the commencement of the
Commercial Courts Act, 2015 and the Commercial Courts
Amendment Act, 2018. It is contended that, since the
Commercial Court for Idukki District was established on
05/03/2020, after the plaint was represented, the suit
ought to have been transferred, following the mandate of
Section 15(2) of the Commercial Courts Act. Learned
Counsel explained that, as per Section 15(2), all suits and
applications relating to commercial disputes of specified
value pending before the Civil Court in any district or area
in respect of which a Commercial Court has been
constituted is liable to be transferred to such Commercial
Court. Therefore, the transfer under Section 15(2) is
dependent on the constitution of the Commercial Court and
not on the introduction of the Commercial Courts Act. It is
hence contended that the impugned order ought to be set
aside and the Sub Court directed to transfer the suit to the
Commercial Court by exercising the power under Section
15(2) of the Commercial Courts Act.
4. Learned Counsel for the respondents raised a
preliminary objection as to the maintainability of the Civil
Revision Petition. It is contended that appeal is provided
against the order returning the plaint under Order VII Rule
10 and in view of the appellate remedy under Order XLIII
Rule 1(a), the bar under Section 115(1) of the Code will
apply. It is submitted that the revision petitioner had
neither sought transfer of the suit under Section 15(2) of
the Commercial Courts Act nor to have approached the
Commercial Appellate Division of the High Court under
Section 15(5). As such the court below was correct in
returning the plaint for presentation before the Commercial
Court.
5. Replying to the contention as to maintainability of
the revision, learned Counsel for the petitioner submitted
that the direction in the impugned order, to return the
plaint under Order VII Rule 10, instead of transferring the
suit under Section 15(2) of the Commercial Courts Act,
being patently illegal, this Court can exercise the power
under Section 115 of the Code to remedy the illegality.
6. It is true that an order returning the plaint as per
Order VII Rule 10 is appealable under Order XLIII Rule 1
(a) of the Code. The revisional power under Section 115
CPC normally would not be exercised if the order is
appealable. Even if so, the legal position is settled to the
effect that, existence of the alternate remedy of appeal
does not create any bar against the exercise of the
revisional jurisdiction in appropriate cases. As held by the
High Court of Delhi in Vijay Kumar Sachdev & Another
v. Baldev Raj Bhutani & Another [AIR 1992 Del.233],
even if the proper remedy is to file appeal, the right of the
High Court to exercise its revisional jurisdiction is not
taken away in appropriate cases, to correct errors that
comes to its notice under Section 115 of the Code or
Article 227 of the Constitution. The same view is expressed
by the Andhra Pradesh High Court in Puranam Vekata
Lakshmamma v. T.J.Ratnam and others [AIR 1968
AP 33]. The challenge as to maintainability would
therefore depend on whether the impugned order is so
patently erroneous, compelling this Court to exercise the
revisional jurisdiction, de hors the remedy of appeal.
7. As discussed earlier, the court had decided to return
the plaint on the premise that, after the introduction of the
Commercial Courts Act, 2015, and reduction of the 'specified
value' as per the Commercial Courts Amendment Act of 2018,
only Commercial Courts can entertain suits involving
'commercial disputes' of 'specified value'. The said reasoning
of the court below is patently erroneous. Going by the clear
wording of Section 15(2) of the Commercial Courts Act,
pending suits involving commercial disputes of specified value
should be transferred on constitution of a Commercial Court
for that district or area. The introduction of the Commercial
Courts in Act 2015 or the Amendment Act in 2018 has
nothing to do with the transfer under Section 15(2). This
position will be cleared from a reading of Section 15(2) of
the Act extracted below;
15. Transfer of pending cases.
"(2) All suits and applications, including applications
under the Arbitration and Conciliation Act,1996 (26 of
1996), relating to a commercial dispute of a Specified
Value pending in any Civil Court in any district or area
in respect of which a Commercial Court has been
constituted, shall be transferred to such Commercial
Court:"
8. In this regard it is also pertinent to note that as per
Section 3 of the Commercial Courts Act, Commercial Courts
are constituted by the State Government by issuing
appropriate notification in consultation with the High Court.
Following the above procedure, 14 Commercial Courts, for
the 14 Districts in the State, were established vide G.O.MS
No.51/2020/Home dated 24/02/2020. Indisputably, the
plaint in the instant case was re-presented before the Sub
Court on 08/07/2019, i.e; prior to the establishment of the
Commercial Court for Idukki District. Therefore, as on the
date of constitution of the Commercial Court for the District,
the suit, OS No.33 of 2019, was pending before the Sub
Court and should have been transferred to Commercial
Court under Section 15(2) of the Commercial Courts Act.
The learned Sub Judge having failed to do so, should have
followed that procedure on realising that, O.S. No.33 of
2019 pending on the files of the Sub Court, is a suit
pertaining to a commercial dispute of a specified value.
Instead of doing that, the court proceeded to return the
plaint under Order VII Rule 10 by placing reliance on the
decision in C.K.Surendran(supra). Here, it is essential to
note that in C.K.Surendran(supra), the plaint was accepted
and the suit numbered after the constitution of the
Commercial Court for that area. Based on these facts, it
was held that, having accepted the plaint and numbered the
suit, the learned Munsiff could have only returned the plaint
under Order VII Rule 10 of the CPC. It is also to be noted
that, as per Section 15(5) of the Commercial Courts Act, in
the event of the suit not being transferred under Section
15(2), the Commercial Appellate Division of the High Court
can, on the application if any of the parties, transfer the suit
for trial or disposal to the Commercial Division or the
Commercial Court, as the case may be.
9. As far as the case at hand is concerned, since the
suit was pending when the Commercial Court for the area
was constituted, it should have been transferred under
Section 15 (2) of the Commercial Courts Act. Failure to do
so is the mistake of the court below. In such circumstances,
the doctrine "Actus curiae neminem gravabit" would come
into play. In my opinion, the above mistakes committed by
the Sub Court can be corrected in exercise of the revisional
power vested with this Court.
10. For the aforementioned reasons, the impugned
order is set aside and the court below is directed to transfer
the suit to the Commercial Court, by exercising the power
under Section 15(2) of the Commercial Courts Act.
Ordered accordingly.
Sd/-
V.G.ARUN
JUDGE
dpk
