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Jayprakash Associates v/s State of Gujarat (Irrigation Department), Secretary & Others

    Special Civil Application No. 8896 of 2017

    Decided On, 02 May 2017

    At, High Court of Gujarat At Ahmedabad

    By, THE HONOURABLE MR. JUSTICE M.R. SHAH & THE HONOURABLE MR. JUSTICE B.N. KARIA

    For the Petitioner: Kashyap R. Joshi, Advocate. For the Respondents: R1, Advance Copy Served to GP/PP.



Judgment Text

M.R. Shah, J.

Oral:

1. By way of this petition under Article 226/227 of the Constitution of India, the petitioner has prayed for appropriate writ, order and/or direction to quash and set aside the impugned order passed by the learned Principal District Judge, Rajpipla dated 6/8/2016, by which, the learned Principal District Judge, Rajpipla has transferred the Special Civil Suit No. 2 of 2006 to the Commercial Court, Vadodara constituted under the provisions of the Commercial Courts, Commercial Division and Commercial Appellate Division of High Courts Act, 2015.

2. It is not in dispute that the suit is arising out of contract of

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construction executed between the original plaintiff and the defendants. It is also not in dispute that the suit value is above Rs. 1 Crore. On establishment of the Commercial Court, Vadodara and according to the learned Principal District Judge, Rajpipla, the dispute can be said to be a commercial dispute within the meaning of section 2(1)(c) of the Commercial Courts Act and that the suit is value is above Rs. 1 Crore and, therefore, the suit was required to be transferred to the Commercial Court, Vadodara and therefore, in exercise of the powers under section 15 of the Commercial Courts Act, the learned Principal District Judge, Rajpipla has passed an order on administrative side to transfer Special Civil Suit No. 2 of 2006 to the Commercial Court, Vadodara.2.1 Feeling aggrieved and dissatisfied with the impugned order passed by the learned Principal District Judge, Rajpipla, the original plaintiff has preferred the present Special Civil Application.3. Mr. Joshi, learned advocate appearing on behalf of the petitioner has vehemently submitted that the impugned order passed by the learned Principal District Judge, Rajpipla transferring the Special Civil Suit No. 2 of 2006 to the Commercial Court, Vadodara is ex-facie illegal and in violation of the principles of natural justice.3.1 Mr. Joshi, learned advocate appearing on behalf of the petitioner has further submitted that before transferring the Special Civil Suit No. 2 of 2006 to the Commercial Court, Vadodara, the learned Principal District Judge, Rajpipla has not given any opportunity to the plaintiff.3.2 Mr. Joshi, learned advocate appearing on behalf of the petitioner has further submitted that even otherwise, as the contract is a Public Works Contract and for which a separate tribunal is constituted under the Gujarat Public Works Contracts Disputes Arbitration Tribunal Act, 1992 and, therefore, the dispute between the plaintiff and the defendants cannot be said to be a commercial dispute within the definition of section 2(1)(c) of the Commercial Courts Act. It is submitted that as the dispute is arising out of the Public Works Contract executed between the plaintiff and the defendants, the suit is not required to be transferred to the Commercial Court, Vadodara.4. Heard Mr. Joshi, learned advocate appearing on behalf of the petitioner herein - original plaintiff.4.1 What is challenged in the present Special Civil Application is the impugned order passed by the learned Principal District Judge, Rajpipla, passed on administrative side transferring Special Civil Suit No. 2 of 2006 to the Commercial Court, Vadodara. It is not in dispute that the dispute between the plaintiff and the defendants is arising out of the Public Works Contract for construction of Dam etc. It is also not in dispute that the suit claim is above Rs. 1 Crore. Under the circumstances, considering section 15(2) of the Commercial Courts Act, all suits and applications, 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 instituted, shall be transferred to such Commercial Court. Thus, as per section 15(2) of the Commercial Courts Act, such suit relating to a commercial dispute for specified value pending in any Civil Court shall stand transferred to such Commercial Court. For the aforesaid, the plaintiff and/or party to the suit is not required to be heard and/or given any opportunity of being heard. Moment condition precedent as mentioned in section 15 of the Commercial Courts Act are satisfied, the suit pending in any Civil Court shall automatically stand transferred and/or required to be transferred to the concerned Commercial Court. Under the circumstances, the impugned order passed on administrative side cannot be said to be in violation principle of natural justice and/or on the aforesaid ground, the impugned order is not required to be quashed and set aside.4.2 Now, so far as the submission on behalf of the petitioner that as dispute is arising out of the Public Works Contract and for which a separate tribunal has been constituted and therefore, the dispute arising out of such Public Works Contract cannot be said to be a commercial dispute within the definition of section 2(1)(c) of the Commercial Courts Act and therefore, even if the suit value is above the specified value, the suit is not required to be transferred to the Commercial Court, is concerned, the same has no substance. There is no distinction in section 2(1)(c) whether the contract is a Public Works Contract or other contract. Section 2(1)(c) of the Commercial Courts Act provides that "a dispute arising out of ...... (vi) construction and infrastructure contracts, including tenders". It is not in dispute that the contract between the plaintiff and the defendants was for construction of Dam etc. Therefore, it can be said to be a commercial dispute within the definition of section 2(1)(c) of the Act.4.3 At this stage it is required to be noted that so far as the petitioner herein - original plaintiff is concerned, earlier the petitioner herein submitted an application before this Court to transfer the suit before the tribunal constituted under the Gujarat Public Works Contracts Disputes Arbitration Tribunal Act, 1992. However, the same came to be dismissed. Therefore, the suit continued to be with the Civil Court. Under the circumstances, as the dispute is arising out of the Public Works Contract / contract of construction of Dam and the suit claim is above Rs. 1 Crore (above specified value), no error has been committed by the learned Principal District Judge, Rajpipla transferring the Special Civil Suit No. 2 of 2006 to the Commercial Court, Vadodara.5. In view of the above and for the reasons stated above, there is no substance in the present petition and the same deserves to be dismissed and is accordingly dismissed.Petition dismissed.
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