# **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`**
## **`PRESENT`**
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THE HONOURABLE MR.JUSTICE C.S.DIAS
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WEDNESDAY, THE 14[TH] DAY OF DECEMBER 2022 / 23RD AGRAHAYANA, 1944
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## **`OP(C) NO. 2373 OF 2022`**
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EP 37/2021 IN O.S. NO.20/2019 OF SUB COURT, VADAKARA
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## **`PETITIONER/JUDGMENT DEBTOR IN E.P/DEFENDANT IN O.S.:`**
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KALLERI KUNHAMMED
AGED 64 YEARS
S/O.ABDULLA
"VALLIL",
VATAKARA BEACH POST,
VATAKARA AMSOM DESOM,
KOZHIKODE, PIN - 673103
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BY ADVS.
R.PARTHASARATHY
B.KRISHNAN
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## **`RESPONDENT/DECREE HOLDER IN E.P/PLAINTIFF IN O.S.:`**
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K.V.MUHAMMED @ PALLINTAVIDA MUHAMMED
S/O.K.V.ABDURAHMAN, AGED 62 YEARS
"SAL SABEEL'" , CHORODE AMSOM, DESOM,
VAGAKARA TALUK, KOZHIKODE, PIN - 673106
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## **`THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 14.12.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:`**
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OP(C) NO. 2373 OF 2022 2
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## **Dated this the 14[th ] day of December, 2022**
## **JUDGMENT**
Aggrieved by Ext.P1 order passed by the Court of the Subordinate Judge, Vadakara, in E.P. No.37/2021 in O.S. No.20/2019, the judgment debtor has filed the original petition. The respondent is the decree-holder.
2. The facts, in a nutshell, leading to Ext.P1 order are: the respondent had filed O.S. No.20/2019 against the petitioner for a decree for recovery of money. The petitioner had entered into Ext.P2 agreement with the respondent to borrow an amount of Rs.20/- lakh. The petitioner had agreed to repay the amount within two years. The petitioner issued a cheque in discharge of his liability, which got dishonoured. Consequently, the respondent filed the suit. The court below decreed the suit on 27.02.2021 by Ext.P3 decree and Ext.P4 judgment. The respondent laid the decree to execution. The petitioner raised a preliminary objection that the
## **`OP(C) NO. 2373 OF 2022 3`**
decree was not executable because the court below lacked inherent jurisdiction to adjudicate the dispute, which was commercial in nature, falling within the ken of clause (c) of Sub-Section (1) of Section 2 of the Commercial Courts Act, 2015 (in short, ‘Act’). Therefore, the decree is a nullity. By the impugned Ext.P1 order, the court below rejected the petitioner’s objection. Ext.P1 order is ex-facie illegal and wrong. Hence, the original petition.
3. Heard; Sri.B.Krishnan, the learned counsel appearing for the petitioner on admission.
4. Sri. B. Krishnan drew the attention of this Court to the provisions of the Commercial Courts Act, 2015 and argued that in view of the notification bearing No.51/2020/Home dated 24.02.2020, promulgated by the Government of Kerala, establishing Commercial Courts in the State, the court of the Subordinate Judge was bound to transfer the suit to the Commercial Court as per mandate under Section 15 of the Act. From 24.02.2020, only the Commercial Courts have jurisdiction to deal with
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a commercial dispute. Ext.P3 decree is coram nonjudice and is therefore not executable. He placed reliance on the decision of the Honourable Supreme Court in **Hasham Abbas Sayyad v. Usman Abbas Sayyad and others** [ 2007 (2) SCC 355] to bolster his submission. He urged that Ext.P1 order may be set aside.
5. The question is whether there is any illegality in Ext.P1 order.
6. O.S. No.20/2019 was instituted by the respondent against the petitioner for a decree for recovery of money.
7. By Ext.P3 decree, the respondent was permitted to realise from the petitioner an amount of Rs.20,00,000/with future interest.
8. By notification dated 24.02.2020, fourteen Commercial Courts were established in the State of Kerala by designating one Subordinate Court in each District as a Commercial Court.
9. Subsequently, by notification dated 18.03.2022, all
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the Subordinate Courts in the State were designated as Commercial Courts.
10. Section 15 of the Commercial Courts Act 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 subsection (1) or sub-section (2).
(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 subsection (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 transferred suit or application in order to prescribe new timelines or issue such further directions as may be necessary for a speedy and efficacious disposal of such suit or
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application in accordance 3 [with Order XIV-A] of the Code of Civil Procedure, 1908 (5 of 1908):
Provided that the proviso to sub-rule (1) of Rule 1 of 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 within which the written statement shall be filed.
**(5) In the event that such suit or application is not transferred in the manner specified in subsection (1), sub-section (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.**
11. Section 15 (5) of the Act stipulates that in the event a suit or application is not transferred in the manner specified under Sub-sections (1), (2) and (3) of Section 15, 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 where the suit is pending and transfer it for trial and disposal to the Commercial Division or Commercial Court having territorial jurisdiction.
12. In the case on hand, neither did the petitioner raise an objection regarding the lack of jurisdiction of the
## **`OP(C) NO. 2373 OF 2022 7`**
court below after the establishment of the Commercial Courts, nor did the petitioner move the Commercial Appellate Division, as provided under Section 15(5) of the Act. Instead, the petitioner participated in the trial, and the suit was decreed.
13. Now, for the first time, at the stage of execution, the petitioner has raised the contention that Ext.P3 decree is not executable because it is passed by a court lacking jurisdiction. The said contention is untenable and unsustainable in law. It was up to the petitioner to have raised the said objection at the appropriate stage. If the court below refused to transfer the suit, then the petitioner ought to have moved the Commercial Appellate Division for transfer of the suit as laid down under Section 15(5) of the Act. Therefore, it is only to be perceived that the petitioner was convinced that the dispute was not a commercial dispute.
14. Having failed to invoke the remedies available under law, it is too late in the day for the petitioner to contend that the decree is a nullity, that too without
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OP(C) NO. 2373 OF 2022 8
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challenging the decree. The court below has rightly inferred that the dispute between the parties is not a commercial dispute falling within the purview of the Act. It is trite that an execution court cannot go beyond a decree. The court below has not overstepped its authority in passing Ext.P1 order, warranting interference by this Court under Article 227 of the Constitution of India. The original petition is devoid of any merits and is resultantly dismissed.
**SD/-**
**C.S.DIAS, JUDGE**
rmm14/12/2022
## **`OP(C) NO. 2373 OF 2022 9`**
## **`APPENDIX OF OP(C) 2373/2022`**
## `PETITIONER EXHIBITS`
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Exhibit P1
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TRUE COPY OF THE ORDER IN EP.NO.37/2021
IN OS.NO.20/2019 ON THE FILE OF SUB
COURT, VATAKARA DATED 29.07.2022
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- `Exhibit-P2 TRUE COPY OF THE AGREEMENT DATED 04.06.2016 BETWEEN DECREE HOLDER AND JUDGMENT DEBTOR ADJUDICATED IN THE DECREE`
- `Exhibit-P3 TRUE COPY OF THE DECREE IN O.S.NO.20/2019 BEFORE THE SUB COURT, VATAKARA DATED 27.02.2021`
- `Exhibit-P4 TRUE COPY OF THE JUDGMENT IN OS.NO.20/2019 OF THE SUB COURT, VATAKARA DATED 27.02.2021`
- `Exhibit-P5 TRUE COPY OF THE PLAINT IN OS.NO.20/2019 ON THE FILE OF SUB COURT OF VATAKARA`
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Exhibit-P6TRUE COPY OF THE WRITTEN STATEMENT FILED
BY PETITIONER HEREIN IN O,S.NO,.20/2019
ON THE FILE OF SUB COURT, VATAKARA.
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