The court affirmed that disputes arising from the import of merchandise qualify as commercial disputes under the Commercial Courts Act, allowing for transfer to the Commercial Court.

JUDGMENT

The plaintiff in O.S.No.21/2017 on the file of the Subordinate Judge’s Court, Kottarakara is the petitioner. The Defendants are the respondents. Defendant No.1 is a limited company located in Tanzania doing the business of exporting of raw cashew in shell. Defendant No.2 is managing the affairs of defendant No.1 company. Defendant No.3 is the owner of M/s. Emmanuel Cashew Industries, who is an agent of defendant Nos.1 and 2. The plaintiff entered into an agreement with defendant No.1 for the import of raw cashew from Tanzania. On 05.12.2016, the plaintiff transferred USD 1,080,000,00 (US Dollar one million and eighty thousand only) to the account of defendant No.1 from the account maintained by it in Abu Dhabi Islamic Bank. The plaintiff transferred the amount to the account of defendant No.1 upon assurance made by defendant No.3 that he would indemnify the plaintiff if the first defendant violates any conditions of the agreement between defendant No.1 and the plaintiff. The plaintiff did not get raw cashew as promised. The plaintiff demanded defendant No.3 to make arrangements to return the amount. Defendant No.1 returned USD 6,47,134 to the plaintiff in four instalments. The plaintiff instituted the Original Suit for realizing the balance amount.

2. Defendant No.3 filed an application before the trial Court seeking transfer of the suit to the Commercial Court, contending that the transaction arose from a commercial dispute. The learned Trial Judge allowed the application and ordered transfer of the suit to the Commercial Court. This order is under challenge in this Original Petition.

3. I have heard the learned counsel for the petitioner/plaintiff and the learned counsel for the respondents/defendants.

4. The learned counsel for the petitioner/plaintiff submits that the transaction involved does not come under commercial dispute and the trial Court was not empowered to transfer a suit to the Commercial Court on the application of the parties.

5. The learned counsel for the respondents submitted that the transaction comes under Section 2 (1)(c)(ii)

of the Commercial Courts Act.

6. The transaction arises from a contract entered between the defendants and the plaintiff in respect of import of raw cashew from Tanzania.

7. “Commercial dispute” is defined in section 2 (1)

(c) of the Commercial Courts Act, which reads thus:-

“2(1)(c) "commercial dispute" means a dispute arising out of-

(i) ordinary transactions of merchants, bankers, financiers and traders such as those relating to mercantile documents, including enforcement and interpretation of such documents;

(ii) export or import of merchandise or services;

(iii) issues relating to admiralty and maritime law;

(iv) transactions relating to aircraft, aircraft engines, aircraft equipment and helicopters, including sales, leasing and financing of the same;

(v) carriage of goods;

(vi) construction and infrastructure contracts, including tenders;

(vii) agreements relating to immovable property used exclusively in trade or commerce;

(viii) franchising agreements;

(ix) distribution and licensing agreements;

(x) management and consultancy agreements;

(xi) joint venture agreements;

(xii) shareholders agreements;

(xiii) subscription and investment agreements pertaining to the services industry including outsourcing services and financial services;

(xiv) mercantile agency and mercantile usage;

(xv) partnership agreements;

(xvi) technology development agreements;

(xvii) intellectual property rights relating to registered and unregistered trademarks, copyright, patent, design, domain names, geographical indications and semi-conductor integrated circuits;

(xviii) agreements for sale of goods or provision of services;

(xix) exploitation of oil and gas reserves or other natural resources including electro-magnetic spectrum;

(xx) insurance and re-insurance;

(xxi) contracts of agency relating to any of the above; and (xxii) such other commercial disputes as may be notified by the Central Government.”

8. As per Sectio