Insight Project Management Consultants v. Shriram EPC Ltd. & Kosamattam Finance Ltd.

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 20**[TH] **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 20[th] day of February 2024 ## **O R D E R** 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 represented 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, CRP No.379 of 2021 3 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 represented 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 CRP No.379 of 2021 4 **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 CRP No.379 of 2021 5 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 CRP No.379 of 2021 6 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 CRP No.379 of 2021 7 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 CRP No.379 of 2021 8 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 CRP No.379 of 2021 9 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 CRP No.379 of 2021 10 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