Apollo Real Estate Llp v. Dr. Arun Waghmare And Others

1. All parties are served. The matter be disposed of with the consent of parties at motion hearing stage itself.

2. THE applicant has filed the present application under Section 15(5) of the Commercial Courts, Commercial Division and Commercial Appellate Division of High Courts Act, 2015 [in brief “the Act of 2015”] read with Section 24 of the Civil Procedure Code, 1908 for transfer of Arbitration Case MJC No. 87/2018.

3. The applicant Apollo Real Estate LLP was earlier a Private Limited Company and subsequently it has been registered as Limited Liability Partnership. The Memorandum of Association reflects the object for incorporation and the same reads as under:—

“1. To acquire by purchase, lease, exchange, hire or otherwise lands and property of any tenure or any interest in the same, and to erect and construct houses, buildings or works on any land of the Company, or upon any other lands or property, and to pull down, rebuild, enlarge, alter and improve existing house, buildings of works thereon, to convert and appropriate any such land into roads, streets, squares, garden and other conveniences, and to generally deal with and improve the property of the company and to sell, lease, let and/or otherwise dispose of the lands, houses, buildings and other property of the company to others.”

4. That an agreement was executed between the applicant and Non-applicants on 05.07.2004 for purchase of immovable property comprised in Survey Nos. 367, 382 and 382/437 situated at Village Chhoti Khajrani, Tehsil and District Indore and dispute arose between the parties.

5. Hon'ble Justice Shri N.K. Jain (Retired) was appointed as Sole Arbitrator on 17.01.2014 by this Court vide order passed in A.C. No. 23 of 2011 and finally an award has been passed on 15.04.2018 and 12.06.2018. The Non-applicant Nos. 1 to 4 have submitted an objection under Section 34 of the Arbitration and Conciliation Act, 1996 before the learned District Judge, Indore and the same has been transferred to the Court of IV Additional District Judge, Indore. The dispute is at present pending before XXVI Additional District Judge, Indore i.e. MJC No. 87/2018.

6. The contention of the learned counsel is that under Section 10 of the Act of 2015, the Commercial Courts have been conferred with jurisdiction to hear and decide applications arising out of arbitration matters under the Arbitration and Conciliation Act, 1996 and Section 15(2) of the Act of 2015 provides for transfer a pending applications under the Arbitration Act, 1996 to Commercial Courts constituted under the provisions of the Act of 2015 and a prayer has been made accordingly.

7. Learned counsel for the Non-applicants have fairly stated before this Court that the matter be transferred to the Commercial Courts.

8. Section 10 of the Act of 2015 reads as under:—

“10. Jurisdiction in respect of arbitration matters - Where the subject-matter of an arbitration is a commercial dispute of a Specified Value and-

(1) If such arbitration is an international commercial arbitration, all applications or appeals arising out of such arbitration under the provisions of the Arbitration and Conciliation Act, 1996 that have been filed in a High Court, shall be heard and disposed of by the Commercial Division where such Commercial Division has been constituted in such High Court.

(2) If such arbitration is other than an international commercial arbitration, all applications or appeals arising out of such arbitration under the provisions of the Arbitration and Conciliation Act, 1996 that have been filed on the original side of the High Court, shall be heard and disposed of by the Commercial Division where such Commercial Division has been constituted in such High Court.

(3) If such arbitration is other than an international commercial arbitration, all applications or appeals arising out of such arbitration under the provisions of the Arbitration and Conciliation Act, 1996 that would ordinarily lie before any principal civil court of original jurisdiction in a district (not being a High Court) shall be filed in, and heard and disposed of by the Commercial Court exercising territorial jurisdiction over such arbitration where such Commercial Court has been constituted.

9. The aforesaid statutory provision of law makes it very clear that the present dispute, which is pending between the parties, has to be decided by the Commercial Courts. Section 15(2) of the Act of 2015 reads as under:—

“(2) All suits and applications, including applications under the Arbitration and Conciliation Act, 1996, relating to a commercial dispute of a Specified Value pending in any civil court in any district or area in respect of which a Commercial Court has been constituted, shall be transferred to such Commercial Court:

Provided that no suit or application where the final judgment has been reserved by the Court prior to the constitution of the Commercial Division or the Commercial Court shall be transferred either under sub-section (1) or sub-section (2).”

10. The aforesaid statutory provision of law provides for transfer of the pending matters and it is the High Court which can pass an order in the matter. Another important aspect is that the learned Judge who is trying the matter has also sought clarification from the learned District Judge vide letter dated 27.07.2019 and he has categorically stated that the dispute involved in the present case is a commercial transaction and has to be heard by Commercial Courts only.

11. In the light of the aforesaid, MJC No. 87/2018 as well as the connected Execution Case i.e. Case No. 173/2019 be transferred to the Commercial Court. Record be transmitted to the Commercial Court. The parties will appear before the Commercial Court on 30.09.2019.

12. It is made clear that the Courts below will transmit the record positively before 30.09.2019.

13. Shri B.L. Pavecha, learned Senior Counsel has argued before this Court that on account of amendment under the Arbitration and Conciliation Act, 1996, the MJC should have been decided within a period of one year which has already come to an end on 29.08.2019 and, therefore, a direction be issued to the Commercial Court to decide the matter as expeditiously as possible.

14. Resultantly, the Commercial Court is directed to decide the matter as expeditiously as possible, preferably within a period of four months from the date of receipt of certified copy of this order. The Commercial Court will not grant any unnecessary adjournment in the matter and in case need so arises for grant of adjournment, shall record reasons in writing in the order-sheet for granting such an adjournment.

15. With the aforesaid, transfer application stands allowed.