Smt. Komala S.P. Vs Smt. Asha L Alias Asha Chetan Kumar

SMT. ASHA L ALIAS ASHA CHETAN KUMAR W/O SRI. CHETAN KUMAR AGED ABOUT 31 YEARS R/AT. NO.14, KHB COLONY JB KAVAL, CORPORATION WARD NO.10 KRISHNANANDA NAGAR BEHIND POLICE QUARTERS BANGALORE-560096.

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MR. ABDUL KHADEER MOHAMAD ALI S/O MR. ABDUL KHADEER AGED ABOUT 68 YEARS R/A NO.29, ERUMAPALAYAM

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NC: 2025:KHC:51839-DB COMAP No.458/2022

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HC-KAR

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SALEM TAMIL NADU-636015.

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…RESPONDENTS

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(BY SRI. ANAND S.G. ADV., FOR R1 R2 SERVICE OF NOTICE IS D/W V.C.O. DTD:29.11.2022)

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THIS COMMERCIAL APPEAL/COMAP IS FILED UNDER SECTION 13(1A) OF THE COMMERCIAL COURT ACTS, 2015, PRAYING TO CALL FOR RECORDS IN COM.O.S. NO.797 OF 2022 PENDING ON THE FILES OF THE LXXXVI ADDITIONAL CITY CIVIL JUDGE AT BANGALORE AND BE PLEASED TO SET ASIDE THE ORDER DATED 18.10.2022 PASSED ON I.A.NO. 2 IN COM.O.S NO.797/2022 BY THE LXXXVI ADDITIONAL CITY CIVIL JUDGE AT BANGALORE WHICH IS PRODUCED AT ANNEXURE A AND ALLOW I.A NO.2 FILED BY THE APPELLANT INVOKING SECTION 8 OF THE ARBITRATION AND CONCILIATION ACT, 1996 PRODUCED AT ANNEXURE B AND CONSEQUENTLY DISMISS THE PLAINT IN COM.O.S.NO. 797/2022. PASS ANY OTHER AND FURTHER AS DEEMED FIT BY THIS HONBLE COURT IN THE INTEREST OF JUSTICE AND EQUITY.

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THIS COMAP HAVING BEEN HEARD AND RESERVED ON 02.12.2025, COMING ON FOR PRONOUNCEMENT OF JUDGMENT, THIS DAY VIJAYKUMAR A. PATIL J., DELIVERED THE FOLLOWING:

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CORAM: HON'BLE MRS. JUSTICE ANU SIVARAMAN and HON'BLE MR. JUSTICE VIJAYKUMAR A. PATIL

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NC: 2025:KHC:51839-DB COMAP No.458/2022

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CAV JUDGMENT

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(PER: HON'BLE MR. JUSTICE VIJAYKUMAR A. PATIL)

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This appeal is filed by the appellant under Section 13(1A) of the Commercial Courts Act, 2015, challenging the order dated 18.10.2022 passed on I.A.No.2 in Com.O.S.No.797/2022 by the LXXXVI Additional City Civil and Sessions Judge, Bengaluru (CCH.No.87) (for short, 'Commercial Court').

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The brief facts leading to the filing of this appeal are that the respondent No.1 filed a suit in Com.O.S. No.797/2022 against the appellant and another for recovery of Rs.38,88,000/- and other reliefs. The appellant filed an application under Section 8 of the Arbitration and Conciliation Act, 1996 (hereinafter referred to as 'the Act'). The Commercial Court rejected the application under the impugned order holding that the appellant has already filed Com.O.S.No.945/2021 based on the agreement dated 03.08.2018 and the said suit is being adjudicated on merits and filing of an application in a suit filed by the respondent No.1 has no merit.

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Sri.P.B.Achappa, learned counsel appearing for the appellant submits that the Commercial Court has committed an error by coming to the conclusion that the arbitration clause in the sale agreement is subject to the amendment/transfer of the lease agreement by the appellant and the respondent No.2 in favour of the respondent No.1 and that the sale agreement is ancillary to the lease deed. It is submitted that the scope of the two suits is different. However, the Commercial court has erred in coming to a conclusion that the scope of the two suits is similar. The Commercial Court ought to have relegated the parties to the arbitration proceedings and dismissed the suit. Hence, he seeks to allow the appeal.

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Per contra Sri.Anand S.G., learned counsel appearing for the respondent No.1 supports the order passed by the Commercial Court and submits that the Commercial Court has given detailed reasons and held that there cannot be any adjudication of the same dispute in two different forums. Hence, he seeks to dismiss the appeal.

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We have heard the arguments of the learned

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counsel appearing for the appellant, the learned counsel

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appearing for the respondent No.1, meticulously perused the material available on record and have given our anxious consideration to the submissions advanced, judgments relied and the material on record.

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The point that arises for consideration is

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" Whether the order dated 18.10.2022 passed by the Commercial Court on I.A.No.2 warrants any interference"

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The answer to the above point is in the negative for the following reasons:

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(a) The appellant along with the respondent No.2 established a saloon in the name of 'Purple Tree', where the respondent No.1 joined as an employee. The respondent No.1 displayed interest to purchase the said saloon and the same was accepted by the appellant. In lieu of the same, a sale receipt dated 24.02.2018 was executed by the parties for a sale consideration of Rs.68,00,000/- and after further negotiations, the sale consideration was revised to Rs.56,00,000/- and an agreement to the said effect was executed for the sale of stockin-trade, furniture and effects dated 03.08.2018. However, the

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respondent No.1 failed to pay the balance sale consideration and the Cheques issued by him were dishonored.

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(b) The respondent No.2 filed a summary suit in Com.O.S.No.945/2021 seeking recovery of money from the respondent No.1. Subsequently, the respondent No.1 filed Com.O.S.No.797/2022 seeking re-payment of Rs.27,00,000/along with interest paid to the appellant contending that the agreement for sale of stock-in-trade, furniture and effects had been cancelled by her vide e-mail dated 13.10.2018. In this suit, the appellant filed an application invoking Section 8 of the Act, seeking to dismiss the commercial suit and refer the matter to arbitration.

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(c) The Commercial Court, after considering the material on record proceeded to dismiss the application on the ground that the arbitration clause in the sale agreement was ancillary to the lease agreement and by cogent reading of the clauses of the agreement, it is clear that the appellant had agreed to transfer the lease agreement dated 07.11.2018 executed between the appellant and one Sri.S.Naga relating to a saloon and if there is any disagreement between the parties to the

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said agreement regarding the writing or the interpretation of any clause of the agreement, then the matter will be referred to the arbitration.

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(d) The Commercial Court further recorded the finding that it pre-supposes that there is a pre-condition fixed on the defendant to get the lease deed transferred/amended and the present agreement for sale of stock-in-trade, furniture etc. is only ancillary to the lease agreement. The said finding is on the interpretation of the clauses of both the agreements. The Commercial Court further recorded the finding that the suit filed by the appellant in Com.O.S.No.945/2021 and being a party to the lease agreement has implicitly waived off the right to invoke the arbitration clause. The said finding of fact by the Commercial Court is based on the nature of the relief sought in both the suits, clauses of the agreement and the covenants of the lease agreement dated 07.11.2018 and the agreement dated 03.08.2018. We do not find any error in the said finding of the Commercial Court.

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(e) It is noticed that the appellant and the respondents are disputing their liability in their respective suits and the

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dispute arises from the lease agreement dated 07.11.2018 and the agreement of sale dated 03.08.2018, which are the subject matters in the suit, filed by the appellant as well as the respondent No.1 and the appellant having continued the suit filed by him on its merit, cannot be allowed to raise any objection of the proceedings in the suit filed by the respondent No.1. We are also of the considered view that the scope of this appeal is very limited and no finding of this Court in this case shall come in the way of the Commercial Court from deciding the suit on its merits. We do not find any error in the observations made by the Commercial Court in the impugned order calling for interference in this appeal.

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The appeal is devoid of merits and the same is accordingly rejected .

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Sd/(ANU SIVARAMAN) JUDGE

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Sd/(VIJAYKUMAR A. PATIL) JUDGE

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List No.: 1 Sl No.: 1

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RV

Smt. Komala S.P. v. Smt. Asha L Alias Asha Chetan Kumar

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Smt. Komala S.P. v. Smt. Asha L Alias Asha Chetan Kumar

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