Ambalal Sarabhai Enterprises Ltd. Vs K.S. Infraspace Llp

REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO. 7843 OF 2019 (Arising out of SLP (Civil) No.9391 of 2019)

Ambalal Sarabhai Enterprises Ltd. .…Appellant(s)

Versus

K.S. Infraspace LLP & Anr. …. Respondent(s)

J U D G M E N T

A.S. Bopanna,J.

Leave granted.

2. The appellant herein is the plaintiff in Commercial

Court Suit No. 41/2018 filed before the Commercial

Court at Vadodara. The respondents herein are arrayed

as the defendants to the suit. The respondents on being

notified in the suit had appeared and filed the written

statement inter alia contending that the suit is not

maintainable as the dispute involved cannot be termed

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as a commercial dispute within the meaning of Section

2(1)(c) of the Commercial Courts Act, 2015 (“CC Act,

2015” for short). In view of such contention, the

respondents herein also filed an application under Order

VII Rule 10 of the Civil Procedure Code seeking an order

to return the plaint to be presented in the Court in

which the suit should have been instituted. The

appellant herein though did not choose to file objection

to the said application, had however opposed the same.

The application was registered as Exhibit 15 and the

learned Judge of the Commercial Court on consideration

had through the order dated 17.10.2018 rejected the

application. The respondents herein claiming to be

aggrieved by the said order had approached the High

Court of Gujarat in R/Special Civil Application

No.17868/2018. The High Court through a detailed

order dated 01.03.2019 has allowed the petition, set

aside the order dated 17.10.2018 passed by the

Commercial Court, Vadodara and on allowing the

application filed under Order VII Rule 10 CPC directed

that the plaint be returned to the appellant herein to be

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presented in the Court in which the suit should have

been instituted. The appellant herein, therefore,

claiming to be aggrieved by the order dated 01.03.2019

is before this Court in this appeal.

3. The brief facts which led to the present situation

is that the appellant herein executed an agreement to

sell dated 14.02.2012 in favour of the respondent No. 2

in respect of the land which is described in the

agreement. The respondent No. 2 assigned and

transferred all his rights under the said agreement to

sell in favour of respondent No.1 by executing an

assignment deed dated 12.10.2017. In that view, the

respondent No. 1 herein was to purchase the lands

which were the subject matter of the agreement from the

appellant herein. Accordingly, the sale was made under

a Deed of Conveyance dated 03.11.2017. Since certain

other aspects were to be completed regarding the change

relating to the nature of the use of the land for

conclusion of the transaction, the right of the appellant

in respect of the land was to be protected. In that view a

Memorandum of Understanding dated 03.11.2017 was

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entered into between the appellant and the respondents

herein. As per the same, a Mortgage Deed was required

to be executed by respondent No. 1 herein in favour of

the appellant.

4. Accordingly, a Mortgage Deed dated 03.11.2017

was executed but the same had not been registered. It

is in that light the appellant herein filed the Commercial

Civil Suit No. 41/2018 so as to enforce the execution of

a Mortgage Deed. Consequently, the relief of permanent

injunction and other related reliefs were sought. It is in

the said suit, summon was issued to respondents herein

who are the defendants in the suit, wherein on filing the

written statement the application under Order VII Rule

10 of CPC was filed. The Commercial Court while

rejecting the application had referred to the

Memorandum and Articles of Association of the

appellant company and in that light taking note of the

business that they were entitled to undertake has

arrived at the conclusion that the plaintiff seems to be

carrying on the business as an estate agent and in that

circumstance has further arrived at its conclusion that

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it is a commercial dispute. The High Court on the other

hand had found fault with the manner in which the

Commercial Court had rested its consideration on the

Memorandum and Articles of Association and had

examined the matter in detail to come to a conclusion

that the immovable property in the instant case was not

being used for trade or commerce. In that regard, the

legal position enunciated by the various decisions was

referred to and had accordingly directed the return of

the plaint to be presented in an appropriate Court which

is assailed herein.

5. We have heard Shri Dhruv Mehta, learned senior

advocate for the appellant, Shri Deven Parikh, learned

senior advocate for the respondents and perused the

appeal papers.

6. At the outset, it is noticed that the consideration

required in the instant case is as to whether the

transaction between the parties herein which is the

subject matter of the suit could be considered as a

“commercial dispute” so as to enable the Commercial

Court to entertain the suit. In that regard, it is

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necessary to take note of Section 2(1)(c)(vii) of the CC

Act, 2015. The said provision to the extent relevant is

extracted here below for reference.

“Sec.2(1) In this Act, unless the context otherwise requires,-

(a) xxx (b) xxx (c) “commercial dispute” means a dispute arising out

of – (i) xxx (ii) xxx (iii) xxx (iv) xxx (v) xxx (vi) xxx (vii) agreements relating to immovable property

used exclusively in trade or commerce; (viii) xxx (ix) xxx (x) xxx (xi) xxx (xii) xxx (xiii) xxx (xiv) xxx (xv) xxx (xvi) xxx (xvii) xxx (xviii) xxx (xix) xxx (xx) xxx (xxi) xxx (xxii) xxx

From a perusal, of the provision relied upon by the

learned senior advocates it is noticed that the disputes

arising out of agreements relating to immovable property

used exclusively in trade or commerce will qualify to be

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a commercial dispute to be tried by Commercial Courts.

The question therefore would be that, in the instant case

though the parties have entered into a sale transaction

of the immovable property and presently in the suit the

registration of a Mortgage Deed pertaining to the

immovable property is sought, whether the immovable

property involved could be considered as being used

exclusively in trade or commerce.

7. The learned senior advocate for the appellant has

made detailed submissions referring to the documents

to contend that the appellant was running an industry

in the land concerned which was acquired for that

purpose and presently the respondent No.1 has

purchased the same for developing the said land and in

that view the land is one which is used for trade and

commerce. The learned senior advocate for the

respondents on the other hand has contended to the

contrary that the appellant had ceased to function for

the past several years and the company being defunct,

the land involved was not being used for trade or

commerce and even though the respondent No.1 has

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sought for change of land use and to develop the land,

the same would be subject to such change of land use

that would be granted and the use to which it would be

put in future. Hence it is contended that as on the date

of transaction the land is not being used for trade or

commerce and a suit at present would not be

maintainable before the Commercial Court.

8. Though such rival contentions are put forth by

the learned senior advocate on either side, these aspects

cannot be dealt with in abstract. Instead the nature of

the dispute and the jurisdiction to try the same is to be

reflected in the suit itself since in a civil suit the

pleadings, namely averments in the plaint would at the

outset be relevant to confer jurisdiction. Hence before

adverting to the other aspects it would be necessary to

carefully examine the plaint. The plaintiff has in detail

referred to the nature of the transaction between the

appellant and the respondents herein. In para 5 thereof

the detail of the land bearing R.S. No.122 corresponding

to City Survey No.1101 and 1100/1 having land area of

9207 square metres at Mouje Subhanpura Reg. District,

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Vadodara is referred. Further the schedule of the

property is indicated in para 6 and reference is made to

the Memorandum of Understanding where again the

reference is made to the land. It is averred therein that

it would be the total responsibility of the respondent

No.1 herein (defendant No.2 in the suit) to change the

land use as well as to pay the amount that may be

required for the permission. The amount to be paid as

premium is referred and the right of the plaintiff to

secure the Mortgage Deed in view of the terms of the

MoU is stated. In the entire plaint there is no reference

to the nature of the land or the type of use to which it

was being put as on the date of the Agreement to

Sell/Sale Deed/Memorandum of Understanding or as on

the date of the suit.

9. Further on referring to the cause of action in para

21, the plaintiff has thereafter referred in para 22 to the

jurisdiction of the Court to hear and decide the matter.

It would be appropriate to extract the same which reads

as hereunder:

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“22. Jurisdiction: The Plaintiff states that the Defendants having their office at Vadodara land which is the subject matter of the instant suit is situated within the territorial jurisdiction of this Hon’ble Court and hence this Hon’ble Court has the jurisdiction to hear and decide the matter.”

Even though in the paragraph describing jurisdiction

the plaintiff has stated with regard to the territorial

jurisdiction since the office and land being at Vadodara,

there is no reference indicating the reason for which the

plaintiff pleads that the Court which is the Commercial

Court exclusively constituted to try the commercial

disputes has jurisdiction to try the instant suit. In that

background, a perusal of the prayer made in the plaint

would essentially indicate that the suit is one seeking for

specific performance of the terms of MoU whereunder it

is agreed that the Mortgage Deed be executed. Even if

the immovable property under the Mortgage Deed was

the subject matter it was necessary to plead and

indicate that the same was being used in trade or

commerce due to which the jurisdiction of Commercial

Court is invoked. Without such basic pleadings in the

plaint, any explanations sought to be put forth

subsequently would only lead to a situation that if an

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objection is raised, in every suit a consideration would

be required based on extraneous material even to

ascertain as to whether the intended transaction

between the parties was of such nature that it is to be

construed as a commercial dispute.

10. Be that as it may, the learned senior advocates on

both sides have sought to rely on the legal position

decided by the various High Courts in the absence of the

pronouncement of this Court. The learned senior

advocate in that regard have referred to the various

decisions on the same point. However, we do not find it

appropriate to refer to each of them and over burden

this order since we notice that the High Court in fact

has referred to various decisions while deciding the

instant case and has thereafter arrived at its conclusion.

The discussion as made by the High Court with

reference to the various decisions is also justified. In

that view, we would refer to the decision of a Division

Bench in the case of Jagmohan Behl vs. State Bank

of Indore, 2017 SCC OnLine Del 10706 relied on by the

learned senior advocate for the appellant. In that

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regard, it is noticed that in the said case on taking note

of the provision contained in Clause 2(1)(c)(vii) of the CC

Act, 2015 it is held that the dispute involved therein

would constitute a commercial dispute and the

expression “arising out of” and “in relation to immovable

property” should not be given the narrow and restricted

meaning and the expression would include all matters

relating agreements in connection with the immovable

properties. The said conclusion reached was in a

circumstance where the immovable property in question

was undoubtedly being used for a trade or commerce

and it was held so when the claim in the suit is for

recovery of rent or mesne profit, security deposit etc. for

the use of such immovable property.

11. On the other hand, the learned senior advocate

for the respondents has relied on the decision of a

Division Bench of the Gujarat High Court in the case of

Vasu Healthcare Private Limited vs. Gujarat Akruti

TCG Biotech Limited, AIR 2017 Gujarat 153 wherein a

detailed consideration has been made and the

conclusion reached therein by taking note of an earlier

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decision is that on a plain reading of Clause 2(1)(c) of CC

Act, 2015 the expression “used” must mean “actually

used” or “being used”. It is 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. The verbatim

consideration therein is as hereunder;

“Therefore, if the dispute falls within any of the clause 2(c) the dispute can be said to be “commercial dispute” for which the Commercial Court would have jurisdiction. It is required to be noted that before the learned Commercial Court the original plaintiff relied upon section 2(c)(i), 2(c)(ii) and 2(c)(xx) of the Commercial Courts Act only. Learned Counsel appearing on behalf of the original plaintiff has candidly admitted and/or conceded that the case shall not fall within clause 2(c)(i); 2(c)(ii) or 2(c)(xx) of the Commercial Courts Act. It is required to be noted that before the learned Commercial Court it was never the case on behalf of the original plaintiff that case would fall within section 2(c)(vii) of the learned Commercial Court. Despite the above we have considered on merits whether even considering section 2(c)(vii) of the Commercial Courts Act, the dispute between the parties can be said to be “commercial dispute” within the definition of section 2(c) of the Commercial Courts Act or not? Considering section 2(c)(vii), “commercial dispute” means a dispute arising out of the agreements relating to immovable property used exclusively in trade or commerce. As observed hereinabove, at the time of filing of the suit and even so pleaded in the plaint, the immovable property/plots the agreements between the parties cannot be said to be agreements relating to immovable property used exclusively in trade or commerce. As per the agreement between the party after getting the plots on lease from the GIDC, the same was required to be thereafter developed by the original defendant No. 1 and after providing all infrastructural facilities and sub-plotting it, the same is required to be given to other persons like the

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original plaintiff. It is the case on behalf of the original plaintiff that as the original defendant No. 1 has failed to provide any infrastructural facilities and develop the plots and therefore, a civil suit for specific performance of the agreement has been filed. There are other alternative prayers also. Therefore, it cannot be said that the agreement is as such relating to immovable property used exclusively in trade or commerce. It is the case on behalf of the original plaintiff that as in clause (vii) of section 2(c), the pharseology used is not “actually used” or “being used” and therefore, even if at present the plot is not used and even if it is likely to be used even in future, in that case also, section 2(c)(vii) shall be applicable and therefore, the Commercial Court would have jurisdiction. The aforesaid has no substance. As per the cardinal principle of law while interpreting a particular statute or the provision, the literal and strict interpretation has to be applied. It may be noted that important words used in the relevant provisions are “immovable property used exclusively in trade or commerce”. If the submission on behalf of the original plaintiff is accepted in that case it would be adding something in the statute which is not there in the statute, which is not permissible. On plain reading of the relevant clause it is clear that the expression “used” must mean “actually used” or “being used”. If the intention of the legislature was to expand the scope, in that case the phraseology used would have been different as for example, “likely to be used” or “to be used”. The word “used” denotes “actually used” and it cannot be said to be either “ready for use” or “likely to be used”; or “to be used”. Similar view has been taken by the Bombay High Court (Nagpur Bench) in the case of Dineshkumar Gulabchand Agrawal (Supra) and it is observed and held that the word “used” denotes “actually used” and not merely “ready for use”. It is reported that SLP against the said decision has been dismissed by the Hon'ble Supreme Court.”

12. Though we are informed that the said decision is

assailed before this Court in a Special Leave Petition we

are inclined to agree with the view expressed therein.

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This is for the reason that this Court while examining

the issue relating to exclusive land use, though in the

different context has laid emphasis on the present user

of the land either for agriculture or non-agriculture

purpose being relevant. In that regard, the decision

relied on by the learned senior advocate for the

respondent in the case of Federation of A.P. Chambers

of Commerce & Industry and Ors. vs. State of A.P.

and Ors., (2000) 6 SCC 550 is noticed, wherein it is

observed as under:

“6. Section 3 of the said Act speaks of “land is used for any industrial purpose”, “land is used for any commercial purpose” and “land is used for any other non-agricultural purpose”. The emphasis is on the word “is used”. For the purpose of levy of assessment on non-agricultural lands at the rate specified in the Schedule for land used for industrial purposes, therefore, there has to be a finding as a fact that the land is in fact in praesenti in use for an industrial purpose. The same would apply to a commercial purpose or any other non-agricultural purpose.”

“9. We are in no doubt whatever, therefore, that it is only land which is actually in use for an industrial purpose as defined in the said Act that can be assessed to non-agricultural assessment at the rate specified for land used for industrial purposes. The wider meaning given to the word “used” in the judgment under challenge is untenable. Having regard to the fact that the said Act is a taxing statute, no Court is justified in imputing to the legislature an intention that it has not clearly expressed in the language it has employed.”

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(emphasis supplied)

13. The learned senior advocate for the appellant

would however, contend that a strict interpretation as in

the case of taxing statutes would not be appropriate in

the instant case where the issue relates to jurisdiction.

In that regard, the learned senior advocate has referred

to the statement of objects and reasons with which the

Commercial Courts Act, 2015 is enacted so as to provide

speedy disposal of high value commercial disputes so as

to create the positive image to the investors world about

the independent and responsive Indian Legal System.

Hence, he contends that a purposive interpretation be

made. It is contended that a wider purport and meaning

is to be assigned while entertaining the suit and

considering the dispute to be a commercial dispute.

Having taken note of the submission we feel that the

very purpose for which the CC Act of 2015 has been

enacted would be defeated if every other suit merely

because it is filed before the Commercial Court is

entertained. This is for the reason that the suits which

are not actually relating to commercial dispute but being

filed merely because of the high value and with the

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intention of seeking early disposal would only clog the

system and block the way for the genuine commercial

disputes which may have to be entertained by the

Commercial Courts as intended by the law makers. In

commercial disputes as defined a special procedure is

provided for a class of litigation and a strict procedure

will have to be followed to entertain only that class of

litigation in that jurisdiction. If the same is strictly

interpreted it is not as if those excluded will be

non-suited without any remedy. The excluded class of

litigation will in any event be entertained in the ordinary

Civil Courts wherein the remedy has always existed.

14. In that view it is also necessary to carefully

examine and entertain only disputes which actually

answers the definition “commercial disputes” as

provided under the Act. In the instant case, as already

taken note neither the agreement between the parties

refers to the nature of the immovable property being

exclusively used for trade or commerce as on the date of

the agreement nor is there any pleading to that effect in

the plaint. Further the very relief sought in the suit is

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for execution of the Mortgage Deed which is in the

nature of specific performance of the terms of

Memorandum of Understanding without reference to

nature of the use of the immovable property in trade or

commerce as on the date of the suit. Therefore, if all

these aspects are kept in view, we are of the opinion that

in the present facts the High Court was justified in its

conclusion arrived through the order dated 01.03.2019

impugned herein. The Commercial Court shall therefore

return the plaint indicating a date for its presentation

before the Court having jurisdiction.

15. Accordingly, the instant appeal being devoid of

merit stands dismissed, with no order as to costs.

……………………….J. (A.S. BOPANNA)

New Delhi, October 04, 2019

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R. BANUMATHI, J.

I have gone through the judgment of my esteemed Brother

Justice A.S. Bopanna. I am in full agreement with the conclusion

that in order to fall within Section 2(1)(c)(vii) of the Commercial

Courts Act, the immovable property must be “used exclusively” or

“being used exclusively” in trade or commerce. However, in view of

the importance of the question involved, I would like to give my

reasonings for concurring with the conclusion of my esteemed

Brother.

2. The Commercial Courts, Commercial Division and

Commercial Appellate Division of High Courts Act, 2015 (Act No.4 of

2016) published in the Gazette of India on 01.01.2016. The Act is

deemed to have come into force w.e.f. 23.10.2015. The Act No.4 of

2016 was amended by Central Act 28 of 2018 – The Commercial

Courts Act.

3. We may refer to the Law Commission’s 253rd Report, which

inter alia made various recommendations. Para (4.2) of Chapter

IV-“Conclusions and Summary of Recommendations” of Law

Commission’s 253rd Report reads as under:-

“4.2 The Commercial Courts, the Commercial Divisions and the

Commercial Appellate Divisions of High Courts that have been

recommended are intended to serve as a pilot project in the

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larger goal of reforming the civil justice system in India. The goal

is to ensure that cases are disposed of expeditiously, fairly and

at reasonable cost to the litigant. Not only does this benefit the

litigant, other potential litigants (especially those engaged in

trade and commerce) are also advantaged by the reduction in

backlog caused by the quick resolution of commercial disputes.

In turn, this will further economic growth, increase foreign

investment, and make India an attractive place to do business.

Further, it also benefits the economy as a whole given that a

robust dispute resolution mechanism is a sine qua non for the

all-round development of an economy”.1

After Law Commission’s 253rd Report, the Act No.4 of 2016 was

amended by Central Act 28 of 2018.

4. Section 3 of the Act deals with Constitution of Commercial

Courts. As per Section 3 of the Act, the State Government shall,

after consultation with the High Court, by notification, constitute

Commercial Courts at District level if deemed necessary for the

purpose of exercising jurisdiction under the Act. As per Section

3(1A) of the Act, Commercial Courts shall have jurisdiction to try the

commercial disputes of a “Specified Value” which shall not be less

than three lakh rupees or such higher value, for whole or part of the

State, as it may consider necessary. After amendment in 2018,

proviso to Section 3 provides that Commercial Courts may be

1 See Para (4.2) of Chapter-IV-‘Conclusions and Summary of Recommendations’ of Law Commission’s 253rd Report – Commercial Division and Commercial Appellate Division of High Courts and Commercial Courts Bill, 2015.

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constituted with respect to area over which the High Courts have

ordinary original civil jurisdiction. Section 5(1) of the Act provides for

the constitution of Commercial Appellate Division having one or

more Division Benches for the purpose of exercising jurisdiction and

powers conferred on it by the Act.

5. Section 6 deals with the jurisdiction of Commercial Court.

Section 6 of the Act reads as under:-

“6. Jurisdiction of Commercial Court. - The Commercial Court

shall have jurisdiction to try all suits and applications relating to a

commercial dispute of a Specified Value arising out of the entire

territory of the State over which it has been vested territorial

jurisdiction.

Explanation. – For the purposes of this section, a commercial

dispute shall be considered to arise out of the entire territory of

the State over which a Commercial Court has been vested

jurisdiction, if the suit or application relating to such commercial

dispute has been instituted as per the provisions of sections 16

to 20 of the Code of Civil Procedure, 1908 (5 of 1908)”.

6. Section 7 deals with the jurisdiction of Commercial Divisions

of High Courts. Section 7 of the Act reads as under:-

“7. Jurisdiction of Commercial Divisions of High Courts. – All

suits and applications relating to commercial disputes of a Specified

Value filed in a High Court having ordinary original civil jurisdiction

shall be heard and disposed of by the Commercial Division of that

High Court:

Provided that all suits and applications relating to commercial

disputes, stipulated by an Act to lie in a court not inferior to a

District Court, and filed or pending on the original side of the High

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Court, shall be heard and disposed of by the Commercial Division

of the High Court:

Provided further that all suits and applications transferred to

the High Court by virtue of sub-section (4) of section 22 of the

Designs Act, 2000 (16 of 2000) or section 104 of the Patents Act,

1970 (39 of 1970) shall be heard and disposed of by the

Commercial Division of the High Court in all the areas over which

the High Court exercises ordinary original civil jurisdiction”.

7. Commercial Divisions are to be set up in High Courts that are

already having ordinary original civil jurisdiction having one or more

Benches consisting of a Single Judge having experience in dealing

with commercial disputes for exercising powers under the Act. As

per Section 7(1) and the proviso thereto, Commercial Division will

hear and dispose of all suits and applications relating to commercial

disputes of a specified value, that lie in a court not inferior to district

court and filed in a High Court having ordinary original civil

jurisdiction and also those cases transferred to High Court under

Section 22(4) of the Designs Act, 2000 or under Section 104 of the

Patents Act, 1970.

8. Section 5 of the Act deals with the Constitution of Commercial

Appellate Division. Section 5(1) of the Act reads as under:-

“5. Constitution of Commercial Appellate Division. – (1) After

issuing notification under sub-section (1) of section 3 or order under

sub-section (1) of section 4, the Chief Justice of the concerned

High Court shall, by order, constitute Commercial Appellate Division

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having one or more Division Benches for the purpose of exercising

the jurisdiction and powers conferred on it by the Act.

………”

In terms of Section 5(2) of the Act, the Chief Justice of the High

Court shall nominate such Judges of the High Court who have

experience in dealing with commercial disputes to be Judges of the

Commercial Appellate Division.

9. Section 2(1)(c) defines “commercial dispute” as under:-

“2. Definitions. - (1) In this Act, useless the context otherwise

requires,-

……….

(c) “Commercial dispute” means a dispute arising out of-

(i) ordinary transaction of merchants, bankers, financiers and

traders such as those relating to mercantile documents,

including enforcement and interpretation of such documents;

(ii) export or import of merchandise or services;

(iii) issues relating to admiralty and maritime law;

(iv) transactions relating to aircraft, aircraft engines, aircraft

equipment and helicopters, including sales, leasing and

financing of the same;

(v) carriage of goods;

(vi)construction and infrastructure contracts, including tenders;

(vii) agreements relating to immovable property used exclusively

in trade or commerce;

(viii) franchising agreements;

(ix) distribution and licensing agreements;

(x) management and consultancy agreements;

(xi) joint venture agreements;

(xii) shareholders agreements;

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(xiii) subscription and investment agreements pertaining to the

services industry including outsourcing services and

financial services;

(xiv) mercantile agency and mercantile usage;

(xv) partnership agreements;

(xvi) technology development agreement;

(xvii)intellectual property rights relating to registered and

unregistered trademarks, copyright, patent, design, domain

names, geographical indications and semiconductor

integrated circuits;

(xviii) agreements for sale of goods or provision of services;

(xix) exploitation of oil and gas reserves or other natural

resource including electromagnetic spectrum;

(xx) insurance and re-insurance;

(xxi) contract of agency relating to any of the above; and

(xxii) such other commercial disputes as may be notified by the

Central Government.

Explanation.- A commercial dispute shall not cease to be commercial

dispute merely because-

(a) it also involves action for recovery of immovable property

or for realising of monies out of immovable property given

as security or involves any other relief pertaining to

immovable property; (b) one of the contracting parties is the State or any of its

agencies or instrumentalities, or a private body carrying out

public functions;

(d) “Commercial Division” means the Commercial Division in a

High Court constituted under sub-section (1) of section 4;

(e) “District Judge” shall have the same meaning as assigned

to it in clause (a) of Article 236 of the Constitution of India:

(f) “Document” means any mater expressed or described upon

any substance by means of letters, figures or marks, or

electronic means, or by more than one of those means,

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intended to be used, or which may be used, for the purpose of

recording that matters;

(g) “Notification” means a notification published in the Official

Gazette and the expression “notify” with its cognate meanings

and grammatical variations shall be construed accordingly;

(h) “schedule” means the Schedule appended to the Act; and

(i) “Specified Value”, in relation to a commercial dispute, shall

mean the value of the subject matter in respect of a suit as

determined in accordance with section 12 [which shall not be

less than three lakh rupees] or such higher value, as may be

notified by the Central Government.”

[Subs. by Act 28 of 2018, sec. 4(II), for “which shall not be less than one crore rupees” (w.r.e.f. 3-5-2018)].

10. As noted above, clause (i) of Section 2 of the Act defines

“Specified Value”, in relation to a commercial dispute, shall mean

the value of the subject matter in respect of a suit as determined in

accordance with section 12 [which shall not be less than three

lakh rupees] or such higher value, as may be notified by the

Central Government”. Section 12 provides for criteria for valuation

of the suit, application or appeal for the purpose of the Act.

11. A matter will fall under the jurisdiction of the Commercial Court

or the Commercial Division of the High Court on the following

factors:-

(i) it shall be a commercial dispute within the meaning of

Section 2(1)(c) of the Act; and

(ii) such commercial disputes are of a specified value as per

Section 2(i) of the Act.

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12. As per Section 11 of the Act, notwithstanding anything

contained in the Act, a Commercial Court or a Commercial Division

shall not entertain or decide any suit relating to any commercial

dispute in respect of which the jurisdiction of the civil court is either

expressly or impliedly barred under any other law for the time being

in force.

13. Section 15 of the Act deals with transfer of pending cases.

Section 15 of the Act reads as under:-

“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 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).

………”.

14. Insofar as transferred cases, as per Section 15(4) of the Act,

the Commercial Division or Commercial Court shall prescribe new

timelines or issue further directions for speedy and efficacious

8

disposal of such suit or application in accordance with Order XVA of

the Code of Civil Procedure. New time period for filing written

statement shall be prescribed and the proviso to sub-rule (1) of rule

1 of Order V of the Code of Civil Procedure shall not apply to the

transferred cases and the Court may, in its discretion, prescribe a

new time period within which the written statement shall be filed.

15. The preamble of the Commercial Courts Act, 2015 reads as

under:-

“An Act to provide for the constitution of Commercial Courts, Commercial Appellate Courts, Commercial Division and Commercial Appellate Division in the High Courts for adjudicating commercial disputes of specified value and matters connected therewith or incidental thereto.”

16. The Statement of Objects and Reasons of the Commercial

Courts Act reads as under:-

“Statement of Objects and Reasons

The proposal to provide for speedy disposal of high value

commercial disputes has been under consideration of the

Government for quite some time. The high value commercial

disputes involve complex facts and question of law. Therefore, there

is a need to provide for an independent mechanism for their early

resolution. Early resolution of commercial disputes shall create a

positive image to the investor world about the independent and

responsive Indian legal system.

……….

6. It is proposed to introduce the Commercial Courts, Commercial

Division and Commercial Appellate Division of High Courts Bill, 2015

to replace the Commercial Courts, Commercial Division and

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Commercial Appellate Division of High Courts Ordinance, 2015 which

inter alia, provides for the following namely:-

(i) constitution of the Commercial Courts at District level except

for the territory over which any High Court is having ordinary

original civil jurisdiction;

(ii) constitution of the Commercial Divisions in those High

Courts which are already exercising ordinary civil jurisdiction

and they shall have territorial jurisdiction over such areas on

which it has original jurisdiction;

(iii) constitution of the Commercial Appellate Division in all the

High Courts to hear the appeals against the Orders of the

Commercial Courts and the Orders of the Commercial Division

of the High Court;

(iv) the minimum pecuniary jurisdiction of such Commercial

Courts and Commercial Division is proposed as one crore

rupees; and

(v) to amend the Code of Civil Procedure, 1908 as applicable

to the Commercial Courts and Commercial Divisions which

shall prevail over the existing High Courts Rules and other

provisions of the Code of Civil Procedure, 1908 so as to

improve the efficiency and reduce delays in disposal of

commercial cases.

……...”

The object and purpose of Commercial Courts Act is to ensure that

the Commercial Courts, Commercial Appellate Courts, Commercial

Division and Commercial Appellate Division of the High Courts and

also to ensure that the commercial cases are disposed of

expeditiously, fairly and at reasonable cost to the litigant.

17. Section 13 deals with appeals from decrees of Commercial

Courts and Commercial Divisions. As per Section 14 of the Act, the

Commercial Appellate Court and the Commercial Appellate Division

10

shall endeavour to dispose of appeals filed before it within a period

of six months from the date of filing of such appeal.

Fast Track Procedure for deciding the Commercial Disputes

18. As per Section 16 of the Act, the provisions of the Code of

Civil Procedure as amended under the Act, shall apply in the trial of

suit in respect of a commercial dispute of a specified value. Section

16 of the Act reads as under:-

“16. Amendments to the Code of Civil Procedure, 1908 in its

application to commercial disputes. – (1) The provisions of the

Code of Civil Procedure, 1908 (5 of 1908) shall, in their application

to any suit in respect of a commercial dispute of a Specified Value,

stand amended in the manner as specified in the Schedule.

(2) The Commercial Division and Commercial Court shall follow the

provisions of the Code of Civil Procedure, 1908 (5 of 1908), as

amended by this Act, in the trial of a suit in respect of a commercial

dispute of a Specified Value.

(3) Where any provision of any rule of the jurisdictional High Court

or any amendment to the Code of Civil Procedure, 1908 (5 of

1908), by the State Government is in conflict with the provisions of

the Code of Civil Procedure, 1908 (5 of 1908), as amended by this

Act, the provisions of the Code of Civil Procedure as amended by

this Act shall prevail”.

19. The Schedule to the Commercial Courts Act amends various

provisions of the Code of Civil Procedure and thereby makes

significant departure from the Code. After Order XIII of the Code,

Order XIIIA - “Summary Judgment” has been inserted. Order XIIIA

11

contains the scope and classes of suits to which Order XIIIA

applies, grounds for summary judgment, procedure to be followed,

evidence for hearing of summary judgment, orders that may be

made by Court in such proceedings for summary judgment, etc.

After Order XV of the Code, Order XVA–“Case Management

Hearing” has been inserted. Order XVA provides for first Case

Management Hearing (Rule 1); recording of oral evidence on a

day-to-day basis (Rule 4); powers of the Court in a Case

Management Hearing (Rule 6); adjournment of Case Management

Hearing (Rule 7); consequences of non-compliance with orders

(Rule 8). By way of amendment, several rules have been

incorporated to make the matters of commercial disputes on fast

track. In Order XX of the Code – “Judgment”, Rule 1 has been

substituted that within ninety days of the conclusion of arguments,

the Commercial Court/Commercial Division/Commercial Appellate

Division to pronounce the judgment and copies thereof shall be

issued to all the parties to the dispute through electronic mail or

otherwise.

20. Various provisions of the Act namely Case Management

Hearing and other provisions makes the court to adopt a pro-active

approach in resolving the commercial dispute. A new approach for

carrying out case management and strict guidelines for completion

12

of the process has been introduced so that the adjudicatory process

is not delayed. I have referred to the various provisions of the Act

and the Schedule bringing in amendments brought to the Civil

Procedure Code to deal with the commercial disputes, only to

highlight that the trial of the commercial dispute suits is put on fast

track for disposal of the suits expeditiously. Various provisions of

the Act referred to above and the amendments inserted to Civil

Procedure Code by the Schedule is to ensure speedy resolution of

the commercial disputes in a time bound manner. The intent of the

legislature seems to be to have a procedure which expedites the

disposal of commercial disputes and thus creates a positive

environment for investment and development and make India an

attractive place to do business.

21. A perusal of the Statement of Objects and Reasons of the

Commercial Courts Act, 2015 and the various amendments to Civil

Procedure Code and insertion of new rules to the Code applicable

to suits of commercial disputes show that it has been enacted for

the purpose of providing an early disposal of high value commercial

disputes. A purposive interpretation of the Objects and Reasons and

various amendments to Civil Procedure Code leaves no room for

doubt that the provisions of the Act require to be strictly construed. If

the provisions are given a liberal interpretation, the object behind

13

constitution of Commercial Division of Courts, viz. putting the matter

on fast track and speedy resolution of commercial disputes, will be

defeated. If we take a closer look at the Statement of Objects and

Reasons, words such as ‘early’ and ‘speedy’ have been

incorporated and reiterated. The object shall be 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.

22. A dispute relating to immovable property per se may not be a

commercial dispute. But it becomes a commercial dispute, if it falls

under sub-clause (vii) of Section 2(1)(c) of the Act viz. “the

agreements relating to immovable property used exclusively in

trade or commerce”. The words “used exclusively in trade or

commerce” are to be interpreted purposefully. The word “used”

denotes “actually used” and it cannot be either “ready for use” or

“likely to be used” or “to be used”. It should be “actually used”.

Such a wide interpretation would defeat the objects of the Act and

the fast tracking procedure discussed above.

23. On 03.11.2017, a Memorandum of Understanding was

executed between the appellant-plaintiff, respondent-defendant and

Ketan Bhailalbhai Shah-second respondent. As per the terms of

14

MOU, parties executed a Deed of Conveyance of the land. A

mortgage deed was executed simultaneously along with the MOU

with respect to the part of the land admeasuring 15,000 sq.ft. in

favour of the plaintiff. It was understood between the parties that

respondent No.1 would apply for change of land use permission for

the land in question on signing of the MOU. Mortgage deed was

executed by respondent No.1 in favour of the appellant in order to

ensure performance of obligations under the MOU. But the said

mortgage deed was not presented for registration.

24. It appears that the trial court has proceeded under the footing

that the parties to the suit more particularly, the appellant-plaintiff

seems to be carrying on business as Estate Agent and to manage

land, building, etc. and the very object as enumerated in

Memorandum and Articles of Association of the appellant-plaintiff

company established that the property in question are being used

exclusively in trade or commerce rather in the business of the

plaintiff. As rightly pointed out by the High Court, there is nothing on

record to show that at the time when agreement to sell came to be

executed in 2012, the property was being exclusively used in trade

and commerce so as to bring dispute within the ambit of sub-clause

(vii) of Section 2(1)(c) of the Act. Merely because, the property is

15

likely to be used in relation to trade and commerce, the same

cannot be the ground to attract the jurisdiction of the Commercial

Court.

25. In the case of Ujwala Raje Gaekwar v. Hemaben Achyut Shah

2017 SCC Guj 583, a Special Civil Suit No.533/2011 was instituted

for declaration that the sale deed valued at Rs.17.76 crores

executed by the appellant-original defendant No.1 in favour of

respondent No.4 be declared illegal and also, for permanent

injunction with respect to the land in question. The

appellants-defendants thereon filed an application that in sale deed,

it has been clearly mentioned that the agreement relating to

immovable property used exclusively in trade or commerce and falls

within the meaning of Section 2(1)(c)(vii) of the Commercial Courts

Act and that the matters above, the value of rupees one crore are to

be transferred to the Commercial Court. Trial court rejected the said

application which was challenged before the Gujarat High Court.

The Gujarat High Court held that the aim, object and purpose of

establishment of Commercial Courts, Commercial Divisions and

Commercial Appellate Divisions of the High Court is to ensure that

the cases involved in commercial disputes are disposed of

expeditiously, fairly and at reasonable cost to the litigant, and if such

16

a suit which is as such arising out of the probate proceedings and/or

is dispute with respect to the property are transferred to the

Commercial Division/Commercial Court, there shall not be any

difference between the Regular Civil Courts and the Commercial

Division/Commercial Courts and the object for the establishment of

the Commercial Division/Commercial Courts shall be frustrated.

26. In Vasu Healthcare Private Limited v. Gujarat Akruti TCG

Biotch Limited & Another 2017 SCC OnLine Guj 724, referred to in

extenso by my learned Brother, it was held that “on plain reading of

the relevant clause, it is clear that the expression “used” must mean

“actually used” or “being used”. If the intention of the legislature was

to expand the scope, in that case the phraseology used would have

been different as for example, “likely to be used” or “to be used”.

The word “used” denotes “actually used” and it cannot be said to be

either “ready for use” or “likely to be used”; or “to be used”. We

entirely agree with the above purposive interpretation adopted by

the Gujarat High Court.

27. The object and purpose of the establishment of Commercial

Courts, Commercial Divisions and Commercial Appellate Divisions

of the High Court is to ensure that the cases involved in commercial

disputes are disposed of expeditiously, fairly and at reasonable cost

17

to the litigants. Keeping in view the object and purpose of the

establishment of the Commercial Courts and fast tracking procedure

provided under the Act, the statutory provisions of the Act and the

words incorporated thereon are to be meaningfully interpreted for

quick disposal of commercial litigations so as to benefit the litigants

especially those who are engaged in trade and commerce which in

turn will further economic growth of the country. On the above

reasonings, I agree with the conclusion arrived at by my esteemed

brother Justice A.S. Bopanna.

………………………….J. [R. BANUMATHI] New Delhi; October 04, 2019.

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AMBALAL SARABHAI ENTERPRISES LTD. Vs K.S. INFRASPACE LLP

AMBALAL SARABHAI ENTERPRISES LTD. Vs K.S. INFRASPACE LLP