DHARVESH Vs. JOSE JOHN

JUDGEMENT

(1.) 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 Sec. 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 Sec. 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.