The interpretation of the term 'used' in the context of commercial disputes under the Commercial Courts Act, 2015 is crucial in determining the jurisdiction of the Commercial Court.

JUDGMENT :

The petitioner herein is the defendant in C.S.No. 119/2022 pending before the Principal Sub Court, Thiruvananthapuram. The petitioner is aggrieved by Ext.P8 order, which declined a challenge made by the petitioner/defendant as regards the maintainability of the said suit. Maintainability was challenged on the premise that, the suit in question is not a commercial suit, or in other words, the dispute is not a commercial dispute in terms of section 2(1)(c)(vii) of the Commercial Courts Act, 2015. The said contention was repelled by the impugned Ext.P8 order, holding that the dispute is a commercial one and the suit filed before the Commercial Court is maintainable.

2. Heard Sri.Rinu S. Aswan, learned counsel for the petitioner and Sri. V.Suresh, learned counsel for the respondent.

3. Learned counsel for the petitioner would submit that the suit was one for return of advance sale consideration, pursuant to an agreement for sale in respect of a shop room. It was specifically pointed out that, at the time of entering into the agreement, there was no tenant in the shop room; that the shop room was got vacated from the then existing tenant before entering into the agreement and that no commercial or business activity was going on in the scheduled shop room at the time when the agreement was entered into, or for that matter, at the time when the suit was instituted. Learned counsel would invite the attention of this Court to the expression “used” as employed in sub-clause (vii) of Section 2(1)(c), to point out that the immovable property should have been actually used at the time of entering into the agreement, so as to make the dispute a commercial one. In this regard, the judgment of the Hon'ble Supreme Court in Ambalal Sarabhai Enterprises Ltd. v. K.S.Infraspace LLP and Others [(2020) 15 SCC 585] and that of the High Court of Gujarat in Vasu Healthcare Private Limited v. Gujarat Akruti TCG Biotch Limited and Others [AIR 2017 Guj 153] were relied on. Attacking the impugned order, learned counsel would submit that the learned Sub Judge took stock only of the pleadings in the plaint, without relying on the documents produced along with it. It was also pointed out that the documents, which are now produced in this Court along with the counter affidavit, were not produced before the court below and hence cannot be looked into. Learned counsel invited the attention of this Court to the misuse of the provisions of the Commercial Courts Act, in portraying ordinary civil disputes as commercial disputes.

4. Refuting the above submissions, learned counsel for the respondent would first distinguish between the character of the subject matter and the character of the parties, wherein the former is relevant in considering, whether the suit in question is a commercial one or not, since it has a bearing on the jurisdiction of the Court. Referring to the definition of a commercial dispute under Section 2(1)(c)(vii), it was pointed out that, any dispute arising out of agreements relating to immovable property used exclusively in trade or commerce are commercial disputes, which are liable to be tried by the Commercial Courts. Learned counsel then invited the attention of this Court to Ext.P1 agreement for sale, wherein the subject matter of the sale is un-mistakably a shop room (). A shop in vernacular called essentially means a place where trade or commerce is conducted, is the submission made by the learned counsel, in which regard learned counsel would also refer to the Kerala Shops and Commercial Establishments Act, to reiterate that, a shop can only mean a place where a commercial activity is going on. It was then contented that there is no dispute with respect to the fact that the subject matter is a shop room, as could be seen from Ext.P2 lawyer's notice, wherein, there is specific reference to agreement for sale of a “shop room”. The pleading as regards the commercial nature of the transaction and the maintainability of the suit before