Dismissed

Mr. Roshan Alwyn D Mello v. Mr. Austin Miranda

Karnataka HC25 Mar 2024WP/19415/2021

Case brief

AI extract

What is this about?

Writ petition challenging the transfer of suits from Civil Court to Commercial Court. The court held disputes arising from construction contracts are commercial, dismissed the petition, and ordered transfer of a related suit to the Commercial Court.

What did the court decide?

Petition dismissed; suit O.S.No.301/2019 ordered to be transferred to the Commercial Court to be clubbed with O.S.No.348/2019.

Mr. Roshan Alwyn D Mello Vs Mr. Austin Miranda — Company and Corporate | Karnataka HC (2024)

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NC: 2024:KHC:12240 WP No. 19415 of 2021

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 25^TH DAY OF MARCH, 2024

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BEFORE

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THE HON'BLE MR JUSTICE R. NATARAJ WRIT PETITION NO. 19415 OF 2021 (GM-CPC)

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BETWEEN:

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MR. ROSHAN ALWYN D’MELLO, S/O BONAVENUTURE D’MELLO, AGED 41 YEARS, REPRESENTED BY SPECIAL POWER OF ATTORNEY HOLDER, MR. BONAVENTURE D’MELLO, S/O MARTIN D’MELLO, AGED 72 YEARS R/AT 22-82, NEERADPE HOUSE, KULASHEKAR POST, PADAVU VILLAGE, MANGALURU-575 005.

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…PETITIONER

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Digitally signed by BS RAVIKUMAR Location: HIGH COURT OF KARNATAKA

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(BY SRI. K.RAVISHANKAR, ADVOCATE)

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AND:

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MR. AUSTIN MIRANDA, S/O LATE VELAARIAN MIRANDA, AGED ABOUT 43 YEARS, CONSULTING ENGINEER.

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MRS.PRATHIMA MIRANDA, W/O AUSTIN MIRANDA, AGED ABOUT 36 YEARS, CIVIL AND INTERIORS, PRATHIMA INERIORS AND EXTERIORS, 3W-31-2505/7, 1^ST FLOOR, (MANASA BUILDING),

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2 - NC: 2024:KHC:12240 WP No. 19415 of 2021

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KADRI KMBLA ROAD, KADRI, MANGALURU-575 004.

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…RESPONDENTS

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(BY SRI. RAKESH KINI,ADVOCATE FOR R1 R2- SERVED)

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THIS WRIT PETITION IS FILED UNDER ARTICLE 227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE ORDER DATED 23.01.2020 PASSED IN O.S.NO.348/2019 ON THE FILE OF THE I ADDL. SENIOR CIVIL JUDGE AND CJM MANGALURU PRODUCED VIDE ANNEXURE ‘A’, TO THE WRIT PETITION AND ISSUE A WRIT OF CERTIORARI AND QUASH THE ORDER DATED 21.08.2021 PASSED IN COM.O.S.NO.208/2020 ON THE FILE OF THE IV ADDL.COMMERCIAL AND DISTRICT COURT MANGALURU, PRODUCED VIDE ANNEXURE ‘B’ TO THE WRIT PETITION.

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THIS PETITION, COMING ON FOR PRELIMINARY HEARING IN ‘B’ GROUP, THIS DAY, THE COURT MADE THE FOLLOWING:

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ORDER

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The defendant in O.S.No.348/2019 (presently

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numbered as Com.O.S.No.208/2020) on the file of IV

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Addl. Senior Civil Judge and CJM, Mangaluru has filed this petition, challenging an order dated 21.08.2021, by which the suit was transferred to the Commercial Court in view of Section 2(1)(c)(vi) of the Commercial Courts

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Act, 2015.

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3 - NC: 2024:KHC:12240 WP No. 19415 of 2021

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The suit in O.S.No.348/2019 was filed for

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recovery of a sum of Rs.18,00,500/-, being the excess amount allegedly received by the defendant for the purpose of constructing a residential building for the plaintiffs. The suit was contested by the defendant and the Court after considering the fact that the liability arose out of a construction contract between plaintiffs and the defendant, held that it was a commercial dispute and therefore, had to be tried by the Commercial Court and consequently, passed the impugned order transferring it to the Commercial Court. Being aggrieved by the said order, the defendant has filed this petition.

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The learned counsel for the defendant contends that the defendant has also filed suit in O.S.No.301/2019 for recovery of a sum of Rs.9,82,850/- being the amount payable by the plaintiffs in O.S.No.348/2019, which too arise out of the

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same contract entered into between the plaintiffs and

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the defendant for construction of a residential house for

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the plaintiffs. He submits that, since the contract between the plaintiffs and the defendant related to the construction of a residential house, the same cannot be construed as a commercial contract between the parties.

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This is however countered by the learned counsel for the plaintiffs who contend that under Section 2(1)(c)(vi), any transaction relating to construction would be construed as a commercial transaction and any dispute arising there from is a commercial dispute. Therefore, he contends that it is the Commercial Court which has the jurisdiction and the Trial Court has rightly transferred the suit to the Commercial Court. In support of his contention that the transaction in question is not a commercial dispute, the learned counsel for the defendant has relied upon the following judgments:

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1) (2020) 15 SCC 585 - Ambalal Sarabhai Enterprises Limited Vs. K.S.Infraspace and Another.

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2) The order passed by Co-ordinate Bench of this Court in W.P.No.11431/2019 and W.P.No.2584/2023.

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I have considered the submissions made by

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the learned counsel for the plaintiffs and learned counsel for the defendant.

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A Commercial dispute is defined under

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Section 2(1)(c)(vi), which means inter-alia a dispute arising out of ‘construction and infrastructure contracts, including tenders’. Therefore, any dispute arising out of any transaction entered into between two individuals or any two entities relating to construction and infrastructure contracts by inviting tenders is a commercial dispute. In the case on hand, admittedly the plaintiffs and the defendant had entered into an agreement to construct a building for the plaintiffs on terms agreed upon between them. Therefore, it cannot

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be contended that the dispute in question was not a commercial dispute not referable to Section 2(1)(c)(vi). Therefore, the Trial Court was right in construing the dispute as a commercial dispute and was right in transferring the suit before the Commercial Court. In the case of Ambalal Sarabhai Enterprises Limited Vs. K.S.Infraspace and Another reported in (2020) 15 SCC 585, the Court was considering the question whether the dispute therein was a commercial dispute falling within Section 2(1)(c)(vi). In the concurring opinion of Justice R.Banumathi, it was held that:

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“36. A perusal of the Statement of Objects and Reasons of the Commercial Courts Act, 2015 and the various amendments to the 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 Statement of Objects and Reasons and various amendments to the Civil Procedure Code leaves no room for doubt that the provisions of the Act require to be strictly construed. If the

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provisions are given a liberal interpretation, the object behind 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 closure look at the Statement of Objects and Reasons, words such as “early” and “speedy” have been incorporated and reiterated.”

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Therefore, taking cue from the above, it is difficult to accept the contention of the learned counsel for the petitioner/defendant that the dispute which arose out of a construction contract to build a residential house is not a commercial contract and therefore, disputes arising there from are not

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commercial disputes.

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In that view of the matter, there is no error committed by the Trial Court in referring to the Commercial Court. Consequently, this petition is dismissed and the impugned order passed by the Trial Court is upheld. However, since the defendant claimed that he too has filed a suit against the plaintiffs for

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recovery of a sum of Rs.9,82,000/- arising out of the very same contract, it is appropriate that, the suit in O.S.No.301/2019 is transferred to the Commercial Court to be dealt along with O.S.No.348/2019 (Com.O.S.No.208/2020). The suit in O.S.No.301/2019 pending trial before the I Addl. Senior Civil Judge and CJM, Mangaluru is ordered to be transferred to the Commercial Court namely IV Addl. District and Sessions Judge, Mangaluru. The Commercial Court may consider clubbing both the suits and treat the suit in O.S.No.348/2019 (Com.O.S.No.208/2020) as the main

suit.

Sd/JUDGE

GSR

List No.: 1 Sl No.: 26

Mr. Roshan Alwyn D Mello v. Mr. Austin Miranda

Case brief

What is this about?

What did the court decide?

Mr. Roshan Alwyn D Mello v. Mr. Austin Miranda

Case brief

What is this about?

What did the court decide?

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