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2020 DIGILAW 1688 (KAR)

Syamaraju & Company (india) Pvt Ltd v. Municipal Commissioner City Municipal Council Ilkal Hunagund Taluka Bagalkot Dist

2020-09-03

B.M.SHYAM PRASAD

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JUDGMENT B.M. Shyam Prasad, J. - The petitioner has challenged the order dated 05.03.2018 in Civil Miscellaneous No.486/2017 on the file of the Principal District and Sessions Judge, Bagalkot (for short, 'the District Court'). The District Court by the impugned order has rejected the petitioner's application under Section 24 of the Code of Civil Procedure (for short, 'CPC') for transfer of the suit in O.S. No.130/2013 pending on the file of the Civil Judge, Hungund, to the file of the Court of Senior Civil Judge, Hungund for common trial and disposal along with suits in O.S. No.19/2015 and O.S. No.95/2016. 2. The learned counsel for the petitioner submits that though the application under Section 24 of the CPC is filed by the petitioner for transfer of the suit in O.S. NO.130 of 2013 pending on the file of the Civil Judge, Hungund, to the file of the Senior Civil Judge, Hungund for common trial with the suits in O.S. No.19 of 2015 and O.S. No.95 of 2016, the petitioner would confine the application for transfer of O.S. No.130 of 2013 to the file of the Senior Civil Judge, Hungund, to be tried along with the suit in O.S. No.19 of 2015. 3. The learned counsel further submits that the suits O.S. No.130 of 2013 and O.S. No.19 of 2015, as the suit in OS No. 95 of 2016, partake the colour of a commercial dispute as contemplated under the Commercial Courts Act, 2015 (for short, 'the Commercial Courts Act'). But the suits O.S. No.130 of 2013 and O.S. No.19 of 2015, in view of the provisions of Section 19 of the Commercial Courts, Commercial Division and Commercial Appellate Division of High Courts (Amendment) Act, 2018 (for short, 'the Amendment Act') will have to be decided by the respective Courts and cannot be transferred to Commercial Court. 4. The learned counsel urges that in view of the provisions of the Section 19 of the Amendment Act the provisions of the Commercial Courts Act would apply only to those suits which are instituted after the date of commencement of the Commercial Courts Act viz., 23.10.2015. 4. The learned counsel urges that in view of the provisions of the Section 19 of the Amendment Act the provisions of the Commercial Courts Act would apply only to those suits which are instituted after the date of commencement of the Commercial Courts Act viz., 23.10.2015. The suits in O.S. No.130 of 2013 and O.S. No.19 of 2015 are filed much earlier to 23.10.2015, and therefore, the suit in O.S. No.130 of 2013 (filed on 22.04.2013) and the suit in O.S. NO.19 of 2015 (filed on 13.02.2015) cannot be transferred to the Commercial Court. 5. The learned counsel for the petitioner as regards the requests for common trial of the suits O.S. No.130 of 2013 and O.S. No.19 of 2015 submits that the suit in O.S. No.130 of 2013 is for a declaration that the termination of works contract vide the order dated 26.04.2012 is null and void and for further consequential reliefs; the suit in O.S. No.19 of 2015 is for a decree for damages in a sum of Rs.45,73,08,000/- against the respondents. In view of grounds urged by the petitioner and the defence taken by the respondents, it would be necessary for a common trial lest there be varying findings on similar questions. It would therefore be just and necessary to transfer the suit in O.S. No.130 of 2013 pending on the file of the Civil Judge, Hungund, to the file of Senior Civil Judge, Hungund, before whom O.S. No.19 of 2015 is pending. 6. The learned counsel for the respondents, on the other hand, points out that the suit in O.S. No.130 of 2013 cannot be transferred to the file of the Senior Civil Judge, Hungund because the suit is presently reserved for orders on an Issue as regards the pecuniary jurisdiction of the Civil Judge, Hungund to try the suit; if the suit in O.S. No.130 of 2013 is transferred by this Court while considering the present petition, the respondents' defence that the Civil Judge, Hungund, has no pecuniary jurisdiction to try the suit will be rendered redundant. 7. 7. On hearing the learned counsel for the parties, and on perusal of the pleadings of the plaints in O.S. No.13 of 2013 and O.S. No.19 of 2015 and the impugned order, this Court is of the considered opinion that for effective adjudication of the dispute inter se the parties all the questions raised by the respective parties are decided together. The civil Court has rejected the transfer despite holding that a decision on the validity of the termination of the subject Works Contract could impact the claim for damages in O.S. No.19 of 2015 and in O.S. No.95 of 2016. 8. The request on behalf of the petitioner, as is obvious from the submissions of the learned counsel for the petitioner, is transfer of the suit in O.S. No.130 of 2013 pending on the file of the Civil Judge, Hungund, to the file of the Senior Civil Judge, Hungund, before whom the suit in O.S. No.19 of 2015 is pending consideration. The respondents' defence is that the suit in O.S. NO.130 of 2013 cannot be maintained before the Civil Judge, Hungund, because of the pecuniary jurisdiction and could only lie before the Senior Civil Judge, Hungund. 9. The learned counsel for the petitioner in making the request for the transfer of the suit in O.S. No.130 of 2013 to the board of the Senior Civil Judge, Hungund is acceding to the submission as regards the lack of pecuniary jurisdiction in the Civil Judge, Hungund try the suit in OS No. 130/2013. Further, merely because the suit in O.S. No.130/2013 is reserved for orders on question of pecuniary jurisdiction, though there is no dispute about lack of jurisdiction in the Civil Judge, Hungund to try the suit in OS No. 130/2013, cannot be a reason to reject the request. 10. However, the more important question is whether the suits in O.S. No.130 of 2013 and O.S. No.19 of 2015 should also be transferred to the Commercial Courts. The provisions of section 19 of the amendment Act reads as follows: 19. Save as otherwise provided, the provisions of this Act shall apply only to cases relating to commercial disputes filed on or after the date of commencement of this Act. The Amendment Act refers to the Commercial Courts Act as the 'Principal Act' and to itself as the 'Act'. The Amendment Act has come into force on 03.05.20181. Save as otherwise provided, the provisions of this Act shall apply only to cases relating to commercial disputes filed on or after the date of commencement of this Act. The Amendment Act refers to the Commercial Courts Act as the 'Principal Act' and to itself as the 'Act'. The Amendment Act has come into force on 03.05.20181. Section 19 of the Amendment Act only refers to the amendments brought on by that Act, and the provisions thereof it cannot be read to conclude that the legislature has postponed the date of the application of the provisions of the Commercial Courts Act. The submission that the suits O.S. No.130 of 2013 and O.S. No.19 of 2015 cannot be transferred to Commercial Court because of Section 19 of the Amendment Act cannot be accepted. The question whether the suits Section 1 (2) of the Amendment Act O.S. No.130 of 2013 and O.S. No.19 of 2015 should be transferred to the Commercial Court will have to be examined in the light of the provisions of Section 15 of the Commercial Courts Act. However, whether all the Courts seized of the Suits in O.S. No.130 of 2013, O.S. No.19 of 2015 and OS No. 95/2016 have examined this question in the light of the provisions of Section 15 of the Commercial Courts Act is not forthcoming from the submissions. 11. This Court is of the considered opinion that for effective adjudication of the dispute inter se the parties all the questions raised by the respective parties should be decided together and the civil Court has erred in rejecting the transfer despite holding that a decision on the validity of the termination of the subject Works Contract could impact the claim for damages in O.S. No.19 of 2015 and in O.S. No.95 of 2016. Further, in view of the provisions of Section 15 of the Commercial Courts Act, the following order is made to subserve the interests of justice and equity: ORDER a) The petition is allowed in part and the order dated 5th March 2018 in Civil Miscellaneous No.486 of 2017 on the file of the Principal and District and Sessions Judge, Bagalkot, is modified transferring the suit in O.S. No.130 of 2013 pending on the file of the Civil Judge, Hungund, to the Senior Civil Judge, Hungund, to be tried along with the suit in O.S. NO.19 of 2015; b) The Senior Civil Judge, Hungund shall before proceeding with these the suits O.S. No.130 of 2013 and O.S. No.19 of 2015 or the suit in 95/2016 consider whether it would be competent to try these suits in view of the provisions of Section 15 of the Commercial Courts, 2015, and if it opines it has no jurisdiction, it shall take necessary steps to comply with the provisions thereof.