Hindustan Petroleum Corporation Ltd. v. Muhammed Iliyas and others

**OP(C) NO. 194 OF 2022** **1** ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR.JUSTICE C.S.DIAS** **THURSDAY, THE 16[TH] DAY OF JUNE 2022 / 26TH JYAISHTA, 1944 OP(C) NO. 194 OF 2022** **AGAINST THE ORDER IN IA 5/2021 IN OS 407/2017 OF MUNSIFF COURT, PERUMBAVOOR PETITIONERS/PETITIONERS IN I.A NO.5/2021/DEFENDANTS IN O.S NO.407/2017:** 1 HINDUSTAN PETROLEUM CORPORATION LTD PETROLEUM HOUSE NO.17, JAMSHIDJI TATA ROAD, MUMBAI, REPRESENTED BY CHAIRMAN AND MANAGING DIRECTOR. 2 HINDUSTAN PETROLEUM CORPORATION LTD., REPRESENTED BY REGIONAL MANAGER, HPCL BUNGLOW, TATAPURAM, ERNAKULAM, COCHIN-682016. BY ADVS. M.GOPIKRISHNAN NAMBIAR K.JOHN MATHAI JOSON MANAVALAN KURYAN THOMAS PAULOSE C. ABRAHAM RAJA KANNAN ## **RESPONDENTS/RESPONDENTS IN I.A 5/2021/PLAINTIFFS IN O.S.** **NO.407/2017:** 1 MUHAMMED ILLIYAS AGED 45 YEARS BUSINESSMAN, S/O. LATE SHRI. T.P.MARAKKAR, THENOOR HOUSE, MUDICKAL P.O., PALLIPRAM KARA, MARAMPILLY VILLAGE, KUNNATHUNAD TALUK, ERNAKULAM DISTRICT, KERALA-683547. 2 ABDUL NAZER, AGED 43 YEARS BUSINESSMAN, S/O. LATE SHRI. T.P.MARAKKAR, THENOOR HOUSE, MUDICKAL P.O., PALLIPRAM KARA, MARAMPILLY VILLAGE, KUNNATHUNAD TALUK, ERNAKULAM DISTRICT, KERALA-683547. 3 ABDUL KAREEM, AGED 42 YEARS BUSINESSMAN, S/O. LATE SHRI. T.P.MARAKKAR, THENOOR HOUSE, MUDICKAL P.O., PALLIPRAM KARA, MARAMPILLY VILLAGE, **2** ## **OP(C) NO. 194 OF 2022** ## KUNNATHUNAD TALUK, ERNAKULAM DISTRICT, KERALA-683547. ## 4 JAVANSA, AGED 48 YEARS HOUSEWIFE, D/O. LATE SHRI. T.P.MARAKKAR, THENOOR HOUSE, MUDICKAL P.O., PALLIPRAM KARA, MARAMPILLY VILLAGE, KUNNATHUNAD TALUK, ERNAKULAM DISTRICT, KERALA-683547. ## 5 FOUSIYA, AGED 49 YEARS EMIRITUS, D/O. LATE SHRI. T.P.MARAKKAR, THENOOR HOUSE, MUDICKAL P.O., PALLIPRAM KARA, MARAMPILLY VILLAGE, KUNNATHUNAD TALUK, ERNAKULAM DISTRICT, KERALA-683547. ## 6 BEEPATHUMMA, AGED 48 YEARS HOUSEWIFE, W/O. LATE SHRI. T.P.MARAKKAR, THENOOR HOUSE, MUDICKAL P.O., PALLIPRAM KARA, MARAMPILLY VILLAGE, KUNNATHUNAD TALUK, ERNAKULAM DISTRICT, KERALA-683547. BY ADV P. THOMAS GEEVERGHESE. THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 16.06.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: **OP(C) NO. 194 OF 2022** **3** **==> picture [40 x 12] intentionally omitted <==** ## **JUDGMENT** The original petition is filed to set aside the order in I.A 5/2021 in O.S.407/2017 (Ext.P3) passed by the Court of the Munsiff, Perumbavoor. 2. The petitioners are the defendants in the above suit, filed by the respondents, inter alia, for a decree to direct the petitioners to give vacant possession of the plaint 'A' and 'B' schedule properties to them. The plaint schedule property was initially leased by late Sri.T.P.Marakkar, the father of the respondents 1 to 5 and the husband of the 6[th] respondent. There were earlier rounds of litigation between the parties, which finally culminated in RSA No.145/2012 of this Court. The **OP(C) NO. 194 OF 2022** **4** respondents have filed Ext.P1 plaint before the above Court. The Commercial Courts Act, 2015 (for short 'Act') was notified by the Government of Kerala, in accordance with Section 3(1) of the Act, on 24.2.2020 in the official gazette on 5.3.2020. On the publication of the notification, the civil court’s jurisdiction to try the suit involving a commercial dispute stands ousted. As the suit was not transferred as envisaged under Section 15 (2) of the Act, the petitioners had filed Ext.P2 application before the court below to transfer the suit to the Commercial Court of the District. The court below, without considering the application in its proper perspective, has dismissed Ext.P2 application by Ext.P3 order. ## 3. The relevant portion of Ext.P3 reads as follows: “8. It is to be noted that the petrol pump situated in the disputed land is operated by the petitioner Company and not a dealer operated pump. The said fact is not disputed. If that be so, as argued by the learned counsel for the respondents that they have no interest in the business of the petitioner Company. The father of the respondents only leased out the premises to the **OP(C) NO. 194 OF 2022** **5** petitioner Company for running a petrol pump for an agreed premium of lease per month. 9. As per section 2(c) (vii) of the Act, only the immovable properties exclusively used for the purpose of commerce and trade will come under the purview of the said section. In this suit, the court fee paid by the respondents is under Section 43(2) of the Kerala Court Fees and Suits Valuation Act for declaring the termination of the lease. Hence, I am of the view that the dispute involved in the suit will not come under the purview of Section 2(c) (vii) of the Commercial Courts Act, 2015 as contended by the petitioner so as to transfer the same to the Commercial Court. These points are accordingly answered against the petitioners. 10. In the result, the petition is dismissed. No costs.” 4. Heard; V.Bharath Kumar, the learned counsel appearing for the petitioners and Sri.Thomas Geeverghese, the learned counsel appearing for respondents 1 to 4 and 6. 5. The petitioners had filed Ext.P2 application to transfer the suit to the Commercial Court, alleging that after the coming into force of the Act in the State, the jurisdiction of the civil court to entertain the suit falling under the Act stood ousted. **OP(C) NO. 194 OF 2022** **6** 6. Section 15 of the Commercial Courts Act, 2015, reads as follows: “15. **Transfer of pending cases-** (1) 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 a High Court where a Commercial Division has been constituted, shall be transferred to the Commercial Division. **(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.** Provided that no suit or application where the final judgment has been reserved by the Court prior to the constitution of the Commercial Division or the Commercial Court shall be transferred either under sub-section (1) or sub-section (2). **OP(C) NO. 194 OF 2022** **7** (3) Where any suit or application, including an application under the Arbitration and Conciliation Act, 1996 (26 of 1996), relating to a commercial dispute of Specified Value shall stand transferred to the Commercial Division or Commercial Court under sub-section (1) or sub-section (2), the provisions of this Act shall apply to those procedures that were not complete at the time of transfer. (4) The Commercial Division or Commercial Court, as the case may be may hold case management hearings in respect of such transfered suit or application in order to prescribe new timelines or issued such further directions as may be necessary for a speedy and efficacious disposal of such suit or application in accordance [with Order XV-A] of the Code of Civil Procedure, 1908 (5 of 1908). Provided that the proviso to sub-rule (1) of the rule 1 Order V of the Code of Civil Procedure, 1908 (5 of 1908) shall not apply to such transferred suit or application and the Court may, in its discretion, prescribe a new time period withiin which the written statement shall be filed. **OP(C) NO. 194 OF 2022** **8** **(5) In the event that such suit or application is not transferred in the manner specified in sub-section (1), subsection (2) or sub-section (3), the Commercial Appellate Division of the High Court may, on the application of any of the parties to the suit, withdraw such suit or application from the Court before which it is pending and transfer the same for trial or disposal to the Commercial Division or Commercial Court, as the case may be,having territorial jurisdiction over such suit, and such order of transfer shall be final and binding”.** 7. Sections 15 (2) and (5) of the Act stipulates that a civil court has to suo motu transfer from it all suits and applications, including applications under the Arbitration and Conciliation Act, 1996, relating to a commercial dispute of a specified value to the Commercial Court. In case the civil court does not transfer such suit or application as provided under Section 15 (2) of the Act, then any of the parties to suit is conferred with a right to move the Commercial Appellate Division of the High Court and seek for the withdrawal of the suit or application from **OP(C) NO. 194 OF 2022** **9** the court where the suit is pending to the Commercial Division or Commercial Court, as the case may be, of the area having territorial jurisdiction over such suit. 8. In the case at hand, the petitioners have themselves sought for the transfer of the suit invoking Section 15(2) of the Act. The court below has rightly or wrongly found that Ext.P1 plaint does not fall within the purview of Section 15 (2) of the Act. Accordingly, Ext.P2 application was dismissed by Ext.P3. 9. In the light of Section 15(5) of the Act, when the civil court had declined to transfer the suit on its own motion, the remedy of the petitioners was to move the Commercial Appellate Division of this Court and seek for the withdrawal of Ext.P1 suit to a Commercial Court, after establishing that the dispute between the parties is a commercial dispute falling within the purview of the Act, instead of filing Ext.P2 application before the civil court **OP(C) NO. 194 OF 2022** **10** and then approaching this Court under Article 227 of the Constitution of India. 10. In **Bhaven Construction v. Executive Engineer, Sardar Sarovar, Narmada Nigam Ltd** [2021 KHC 6007], the Hon'ble Supreme Court, while interpreting the provisions of the Arbitration and Conciliation Act, 1996, has emphatically held that it would be prudent for a Judge not to exercise his discretion to allow judicial interference beyond the procedure established under the enactment. The powers of the High Court under Articles 226/227 of the Constitution of India need to be exercised in exceptional rarity, wherein one party is left remediless under the Statute. 11. I am of the view that the ratio decidendi in **Bhaven Construction** (supra) squarely applies to the Commercial Courts Act, 2015 also since the Act is a selfcontained enactment with a remedy provided under **OP(C) NO. 194 OF 2022** **11** Section 15(5) of the Act to meet to an exigency of nontransfer of a suit under Section 15(2) of the Act. 12. Just because the petitioners had filed an application, which is not envisaged under the Statute, and suffered an order, that does not give them a right to approach this Court under Article 227 of the Constitution of India, especially when they have an alternative and efficacious statutory remedy. If such a course is permitted, Section 15(5) will become a dead letter. Hence, reserving the right of the petitioners to move the Commercial Appellate Division of this Court under Section 15 (5) of the Commercial Courts Act,2015, this original petition is dismissed. ma/16/6/2022 Sd/- **C.S.DIAS JUDGE** **12** ## **OP(C) NO. 194 OF 2022** ## **APPENDIX OF OP(C) 194/2022** PETITIONER EXHIBITS Exhibit TRUE COPY OF THE PLAINT IN OS.NO.407 OF 2017 BEFORE P1 THE HON'BLE MUNSIFF'S COURT, PERUMBAVOOR DATED 7.11.2017. Exhibit TRUE COPY OF I.A.NO.5 OF 2021 DATED 1.11.2021 IN OS P2 NO.407 OF 2017 FILED BY THE PETITIONERS BEFORE THE HON'BLE MUNSIFF'S COURT, PERUMBAVOOR. Exhibit TRUE COPY OF ORDER DATED 30.11.2021 IN I.A.NO.5 OF P3 2021 IN O.S.NO.407 OF 2017 BEFORE THE HON'BLE MUNSIFF'S COURT, PERUMBAVOOR. Exhibit A TRUE COPY OF THE FAIR VALUE CERTIFICATE OF THE P4 PLAINT SCHEDULE PROPERTY PRODUCED BY THE PLAINTIFFS/RESPONDENTS IN THE SUIT.