A dispute involving immovable property intended for commercial use is a commercial dispute under the Commercial Courts Act, even if not currently in use, contradicting the lower court's interpretation.

JUDGMENT :

VIJAYKUMAR A. PATIL, J.

This appeal is filed by the appellant/plaintiff under Section 13 (1-A) of the Commercial Courts Act, 2015 (for short 'the Act') read with Order XLIII Rule 1(a) of the Code of Civil Procedure, 1908 (for short 'CPC') challenging the order dated 02.08.2024 passed on I.A.No.4 in Com.O.S.No.1171/2023 by the LXXXVII Additional City Civil and Sessions Judge (Exclusively Dedicated Commercial Court) at Bengaluru (CCH-88) (for short 'Commercial Court').

2. Sri. R.V.S. Naik, learned Senior counsel appearing for the appellant submits that the Trial Court has rightly held that the nature of premises as per the Memorandum of Understanding (for short 'MoU') is termed as the 'commercial premises' with exclusive statement that the premises is sought to be used for apparel business. However, the Trial Court proceeded to hold that the dispute cannot be classified as a commercial dispute as the premises were sought to be used but not 'already in use'. It is submitted that the MoU makes it clear on many accounts that the premises were sought to be used for trade and commerce and that the property is a commercial property, which has not been rightly appreciated by the Commercial Court. It is further submitted that the premises in question was already in use for commercial purpose. However, the Commercial Court, merely on the ground that the subject premises were not in actual use by the parties to the suit, proceeded to interpret Section 2 (1)(c)Vii of the Act in an incorrect manner contrary to the object of the Act. It is also submitted that the Hon'ble Supreme Court in the case of AMBALAL SARABHAI ENTERPRISES LIMITED V K.S.INFRASPACE LLP AND ANOTHER , (2020) 15 SCC 585 has held that the plaint averments are required to be looked into to decide the jurisdiction of the Commercial Court. However, the Commercial Court, under the impugned order, in a cryptic manner has proceeded to hold that the suit filed by the appellant is not a commercial suit and ordered to return the plaint. Hence, he seeks to allow the appeal and consequently dismiss I.A.No.4.

3. Sri.H.S.Dwarakanath, learning counsel appearing for Sri.Sudhakar G.V, learned counsel for the respondent Nos.1 to 3 supports the decision of the Commercial Court and submits that the Commercial Court has rightly appreciated the law on the point and proceeded to allow I.A.No.4. It is submitted that the Commercial Court has rightly held that the law laid down by the Hon'ble Supreme Court makes it clear that in order to consider an immovable property under a commercial dispute, the said premises must already be in use for the purposes of trade/commerce and not 'ready to be used' or 'sought to be used'. In support of his contentions he places reliance on the decision of the Hon'ble Supreme Court in the case of AMBALAL SARABHAI ENTERPRISES LIMITED referred supra. He further places reliance on the decision of this Court in the case MRS.GEETA PETER KHUBANI Vs. M/s. MAXWORTH REALTY INDIA LIMITED AND OTHERS , Com.AP.No.188/2021 dt. 04.10.2023. Hence, he seeks to dismiss the appeal.

4. We have heard the arguments of the learned counsel appearing for the appellant, the learned counsel appearing for the respondents Nos.1 to 3, perused the material available on record and have given our anxious consideration to the submissions advanced, judgments relied and the material on record.

5. The point that arises for our consideration in this appeal is:

"Whether the order dated 02.08.2024 passed by the Commercial Court on I.A.No.4 in Com.O.S.No.1171/2023 seeks an interference?

6. On perusal