M/S Hoornapriya Amba Fueld (R) vs. Smt P Sunitha

Since, all the three writ petitions arise out of the orders passed in Com.O.S.No.745/2023, the three writ petitions are heard together and disposed of by this common order.

Respondent No.1 filed the commercial original suit seeking directions to the defendants to quite, deliver and hand over vacant possession of the suit schedule property; pay arrears of rents of Rs.4,94,23,242/- as on 31.07.2022 with periodical enhancement as agreed to in the Lease Deed dated 09.04.2015 along with interest at the rate of 18% per annum; to pay Rs.36,72,500/- towards service NC: 2024:KHC:36389 tax and GST of Rs.1,25,84,349/- along with interest and for damages. Defendant No.1 filed written statement and counter claim seeking declaration that the registered Lease Deed dated 09.04.2015 is void and unenforceable; for mandatory injunction directing the plaintiffs to execute a fresh registered Lease Deed in favour of defendant No.1 for a period of 25 years from 06.01.2023 by obtaining change of land use from industrial purpose to commercial purpose; for permanent injunction restraining the plaintiff/ defendant No.1 from interfering with the peaceful possession and enjoyment of the suit schedule property. The petitioner/ defendant No.1 also filed an application in I.A.No.14 under Order VII Rule 11(d) of CPC for rejection of the plaint as barred by law. Defendant No.6 filed I.A.No.15 under Order VIII Rule 1 and 2 of CPC for recalling the orders dated 22.03.2024 whereby the written statement filed by defendant No.6 was rejected and to take written statement on record and the plaintiff filed I.A.No.13 under Section 151 of CPC to direct defendant No.1 to deposit the admitted rent of Rs.10,00,000/- per NC: 2024:KHC:36389 month from the date of filing of the suit till the date of disposal. By the impugned orders, the Commercial Court has allowed I.A.No.13 filed by the plaintiff and has issued direction to defendant No.1/petitioner herein to deposit a sum of Rs.10,00,000/- per month (equivalent to admitted rent) from the date of the suit till the date of disposal of the suit within a period of four weeks from the date of the order and to continue to deposit the rental during the pendency of the suit. I.As.No.14 and 15 were rejected.

Learned Senior Counsel Sri.D.R.Ravishankar, appearing on behalf of the petitioner/defendant No.1 contended that the application was filed under Order VII Rule 11(d) of CPC having regard to the fact that the dispute brought before the Court is not a commercial dispute, in view of the fact that the suit schedule property was not used exclusively in trade or commerce as on the date when the parties entered into an agreement. Attention of this Court is drawn to sub-clause (vii) of clause (c) of sub-section (1) of Section 2 of the Commercial Courts Act, 2015. Reliance was also placed on NC: 2024:KHC:36389 a judgment of the Hon’ble Supreme Court in the case of definition of the word “commercial dispute” as found in Section 2 of the Act and more particularly, sub-clause (vii) of clause (c), the Hon’ble Supreme Court has held that the expression “used” must mean “actually used” or “being used”. It was 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.

Learned Senior Counsel submitted that in a concurring judgment the Hon’ble Supreme Court has laid emphasis on the statement of objections and reasons of the Commercial Courts Act, 2015 and held that if the 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. The object shall be NC: 2024:KHC:36389 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.

Per contra, learned Senior Counsel Sri.K.N.Phanindra, appearing for respondent No.1/plaintiff submitted that the judgment sought to be relied upon by the petitioner is not applicable to the facts of the case on hand. It was submitted that in the decision cited, the prayer was for execution of the Mortgage Deed which is in the nature of specific performance in the terms of the Memo of Understanding, without reference to the nature of the use of the immovable property in trade or commerce as on the date of the suit. It is submitted that in the present case the relief sought is for recovery of rents, which would mean that the defendants have put to use the suit schedule property for commercial purpose and rentals are also determined, accordingly, having regard to the fact that the suit schedule property is used for commercial purpose. In that view of the matter, learned Senior Counsel submitted that the Commercial Court has rightly NC: 2024:KHC:36389 rejected the application filed by the petitioner/defendant No.1 under Order VII Rule 11 (d) of CPC.

Having heard the learned Senior Counsel and on perusing the petition papers, this Court finds that there is substance in the submissions made by the learned Senior Counsel appearing for respondent No.1/plaintiff. Insofar as the application filed by the petitioner/defendant No.1 seeking rejection of the plaint on the ground that the dispute brought before the Commercial Court is not a “commercial dispute” having regard to the definition, more particularly, sub-clause (vii) of clause (c), as on the date when the parties entered into an agreement to lease out the property, the property was put to use for commercial purpose has rightly been addressed by the Commercial Court.

This Court is one with learned Counsel for respondent No.1, since the nature of the prayer made by the plaintiff before the Commercial Court is for recovery of the arrears of rent. The facts narrated in the plaint clearly shows that after the Lease Deed was entered into, the NC: 2024:KHC:36389 defendants have taken possession of the suit schedule property and have put it to commercial use in terms of the agreement. The Lease Deed was entered into on 09.04.2015 and the claim of the plaintiff for payment of arrears of rent is commencing from 01.01.2022. It is pointed out from the counter claim filed by the petitioner herein that the petitioner/defendant No.1 admits the payment of rentals commencing from 08.04.2015 to 29.12.2021. Therefore, the petitioner cannot contend that the suit schedule property has not been put to commercial use. The judgment cited by the learned Senior Counsel for the petitioner is required to be considered in the light of the claim made by the plaintiff. Having regard to the claim made by the recovery of arrears of rent, it cannot be disputed that the lis brought before the Court is a commercial dispute. In that view of the matter, this Court does not find any merit in the writ petition insofar as the application filed under Order VII Rule 11 (d) of CPC.

Insofar as I.A.No.13 is concerned, where directions are issued by the Commercial Court to the NC: 2024:KHC:36389 petitioner/defendant No.1 to deposit the arrears of rent at the rate of 10,00,000/- (Rupees Ten Lakhs only) per month from the date of the suit till disposal of the suit, the learned Senior Counsel for the petitioner submitted that reasonable time may be granted to the petitioner/ defendant No.1 to deposit the same.

Insofar as I.A.No.15 is concerned, the learned Senior Counsel appearing for the petitioner has fairly submitted that the issue stands covered by a judgment of the Hon’ble Supreme Court which has been taken into consideration in the impugned order.

Consequently, the writ petitions stand disposed of while permitting the petitioner/defendant No.1 to deposit the arrears of rent as directed by the Commercial Court within a period of sixty (60) days from the date of receipt of a copy of this order. Ordered accordingly.

Pending I.As., if any, stand disposed of. (R DEVDAS) JUDGE DL