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Alex G. Muricken v/s Murickens Marketing System LLP, Represented by Designated Partner, George G. Muricken, Kottayam & Another

    TR. P(C) No. 358 of 2022

    Decided On, 26 July 2022

    At, High Court of Kerala

    By, THE HONOURABLE MR. JUSTICE A. BADHARUDEEN

    For the Petitioner: C. Harikumar, Vizzy George Kokkat, R. Sreemukund, Sandra Sunny, M.A Arun Kumar, Advocates. For the Respondents: B. Krishna Mani, M.S. Dhanuja, N.V. Sandhya, Advocates.



Judgment Text

1. This is a transfer petition filed by the defendant in C.S.No.1/2021 pending before the Commercial Court (Principal Sub Court), Kottayam under Section 15(5) of the Commercial Courts Act, 2015 read with Section 24 of the Code of Civil Procedure to transfer the said Suit to the District Court, Kottayam, having jurisdiction. The plaintiffs in the above Suit are the respondents herein.

2. Heard the learned counsel for the petitioner Sri C.Harikumar as well as Sri B.Krishna Mani, appearing for respondents 1 and 2.

3. Short facts: The petitioner is the defendant in Commercial Suit No.1 of 2021 on the file of the Commercial Court (Principal Sub Court), Kottayam. The suit was one filed alleging Trademark infringement and passing off and for a permanent prohibitory injunction against the defendant from using the marks MG AND MURICKENS GROUP, MURICKENS GROUP, MURICKENS, FLYLINE, MG with or without logo, MURICKENS TRADING COMPANY or any other deceptively similar mark and for accounts of profit and damages. The jurisdictional value of the suit is Rs.6,01,000/- (Six Lakh and One thousand only). The dispute in the suit mainly centers around the right of usage of their family name “Murickens” as trademark.

4. The suit was originally filed and numbered as O.S.No.1 of 2019 before the Additional District Court-IV, Kottayam. While pending so, citing Government Order (Ms.) No.51/2020/Home dated 24.02.2020 published in Kerala Gazette (Extraordinary) No.783 dated 05.03.2020 notifying the Commercial Courts Act, 2015 (Act 4 of 2016) to have jurisdiction over commercial matters having a pecuniary value of Rs.3 lakh and above, the learned District Court, vide order dated 15.12.2020, transferred the case to the Commercial Court, Kottayam in terms of Section 15 of the Commercial Courts Act, 2015.

5. The further contention raised by the petitioner is that as per Annexure A3 Government Order, pecuniary value of a Commercial Suit to be tried by a Commercial Court has been enhanced to Rs.10 lakh and above w.e.f 18.03.2022. Hence the Commercial Court ceased to have jurisdiction in this Suit since the valuation in the present Suit is only Rs.6,01,000/- (below Rs.10 lakh).

6. It is contended further that though the question of jurisdiction was raised before the Commercial Court, during final hearing, the Commercial Court, without passing a speaking order, held that Commercial Court is having jurisdiction. On the above grounds, transfer is sought for.

7. The learned counsel for the petitioner zealously urged that in view of Annexure-A3 Government Order came into force w.e.f 18.03.2022, the pecuniary value of a Suit involved in commercial dispute is Rs.10 lakh and above and therefore the commercial courts have no jurisdiction to entertain a Suit having valuation of Rs.6,01,000/-. Therefore, C.S.1/2021 shall go back to the District Court, where it was originally filed under the Trademarks Act, 1999. The learned counsel has given emphasis to Annexure-A1, the copy of plaint, Annexure-A2, G.O(Ms).No.51/2020/Home dated 24.2.2020 and Annexure-A3 G.O(Ms).No.53/2020/Home dated 18.03.2022 while raising this contention. He has placed decisions reported in [(2019) 14 SCC 526], Om Prakash Agarwal Since Deceased Through Legal Representatives & Ors. v. Vishan Dayal Rajpoot & anr., [2017 SCC OnLine Raj 4240 : AIR 2018 Raj 67], Neelkanth Healthcare Pvt. Ltd., Jodhpur & Ors. v. Neelkanth Minechem Partnership Firm, Jodhpur, [2021 SCC OnLine Cal 35 : AIR 2021 (NOC 524) 194 : (2021) 1 Cal LT 72], Swadha Builders Pvt. Ltd. & Ors. v. Nabarun Bhattacharjee & Ors., [2021 KHC 3597], Kairali Aviation Pvt. Ltd., Bangalore v. Cochin International Airport Ltd. and finally latest judgment of the Apex Court reported in [(2022) 2 SCC 161], Neena Aneja & anr. v. Jai Prakash Associates Limited, in support of his argument.

8. Repelling this contention, the learned counsel for the respondents vehemently argued that when a statute is amended without giving retrospective effect, the same is prospective in operation and, therefore, the said amendment shall not affect the pending proceedings. Thus it is argued that C.S.No.1/2021 shall continue before the Commercial Court, Kottayam. In this regard, he has highlighted decisions reported in [1953 KHC 342 : AIR 1953 SC 221 : 1953 SCR 987 : 1953 (4) STC 114], M/s.Hoosein Kasam Dada (India) Ltd. v. State of M.P & Ors., [1957 KHC 452 : 1957 KLT SN 137 : AIR 1957 SC 540 : 1957 SCR 488 : 1957 (2) MLJ (SC) 1], Garikapapati Veeraya v. Subbiah Choudhry, [1960 KHC 336 : 1960 KLT SC 18 : AIR 1960 SC 980 : 1960 (3) SCR 640 : 1960 (2) KLR 306], State of Bombay v. Supreme General Films Exchange Ltd., [1966 KHC 693 : AIR 1966 SC 1738 : 1966 (3) SCR 582 : 1966 (61) ITR 187 : 1966 (18) STC 1], State of Kerala v. M/s. N.Ramaswami Iyer and Sons, [1969 KHC 722 : AIR 1969 SC 560 : 1969 (1) SCR 573 : 1969 Mah LJ 495 : 71 Bom LR 693], Dewaji v. Ganpatlal, [1997 KHC 47 : 1997 (1) KLT 264 : 1997 (1) KLJ 58 : ILR 1997 (2) Ker. 135], Usha v. Food Corporation of India, [1992 KHC 46 : 1992 (1) KLT 283 : 1992 (1) KLJ 99 : 1992 (1) SCC 731 : AIR 1992 SC 1526], Sujir Keshav Nayak v. Sujir Ganesh Nayak, [1997 (1) KLT 264], Usha v. Food Corporation of India, [2003 KHC 1134 : 2003 (3) KLT 433 : 2003 (2) KLJ 888], Sasi v. Saudamini and judgment of a learned Single Judge of this Court dated 17.09.2021 in CRP.No.146/2021. The learned counsel also placed a book titled “Principles of Statutory Interpretation” written by Justice G.P.Singh revised by Justice A.K.Patnaik. In the said book, in page No.628, under the head `Pending Proceedings' it has been recited that a retrospective statute which affects rights in existence is not readily construed to affect adjudication of pending proceedings [(United Provinces v. Atiqa Begum (Mt.), [AIR 1941 FC 16] is given reference]. The courts insist that to have that result the language should be sufficiently clear, although it need not be expressed. [AIR 1960 SC 655], Moti Ram v. Suraj Bhan; [AIR 1995 SC 1012], K.S.Paripoornan v. State of Kerala, etc. are referred]. In page No.630, it is stated that a new law bringing about a change in forum does not affect pending actions. Decisions reported in [AIR 1967 SC 1419], Manujendra v. Purnendu Prasad; [AIR 1996 SC 3199], CIT v. R.Shardamma (Smt.) and [AIR 2003 SC 565], R.Kapilnath v. Krishna, are referred. It was stated further that unless a provision is made in it for change over of proceedings or there is some other clear indication that pending actions are affected, a new law bringing about a change in forum does not affect pending actions.

9. In this matter, Annexure-A2 is the Government Order vide G.O(Ms).No.51/2020/Home dated 24.02.2020, whereby the Government of Kerala had constituted commercial courts for the districts specified in column 3 of the schedule and designated the Subordinate Judges Court mentioned in column 2 as commercial courts for the purpose of exercising jurisdiction and powers conferred on those courts under the Commercial Courts Act, 2015. As per S.R.O No.176/2020, the Government of Kerala in consultation with the High Court of Kerala specified the pecuniary value to be not less than Rs.3 lakh for the whole State for the purposes of the Act. Thereafter, as per SRO 336/2022 dated 18.03.2022, the Government of Kerala designated all Subordinate Judges' Courts in the State as commercial courts for the purpose of trying commercial disputes arising within their respective jurisdiction and also increased the pecuniary value to be not less than Rs.10 lakh for the whole of the State for the purpose of the Act and accordingly G.O(Ms).No.51/2020/Home dated 24.02.2020 (Annexure-A2) was amended. So, at present the specified value determining the commercial dispute to be tried by a commercial court is Rs.10 lakh and above w.e.f 18.03.2022.

10. Now the seminal query is whether the amendment as per Annexure-A3 is retrospective in nature and the same would apply to all pending cases, so as to transfer the present Suit back to the District Court, since the Commercial Court lacks jurisdiction to entertain the present Suit having valuation comes to Rs.6,01,000/- (less than Rs.10 lakh specified as per Annexure-A3).

11. The learned counsel for the petitioner relying on the decision reported in Om Prakash Agarwal Since Deceased Through Legal Representatives & Ors. v. Vishan Dayal Rajpoot & anr.'s case (supra) contented that the present Suit cannot be entertained by the Commercial Court and the same shall go back to the District Court. In Om Prakash Agarwal Since Deceased Through Legal Representatives & Ors. v. Vishan Dayal Rajpoot & anr.'s case (supra), the facts dealt with the Apex Court is as under:

“The facts necessary to be noticed for deciding these appeals are: the appeallant, the landlord of premises in question filed Small Causes Suit No.1 of 2008 in the Court of Civil Judge (Senior Division), Small Cause Court, Firozabad praying for the decree of eviction, rent and damages. By order dated 5.4.2010 passed by the District Judge, the suit was transferred to the Court of Additional District Judge, Firozabad and was registered as SCC Suit No.1 of 2010. The pecuniary jurisdiction of a Judge, Small Cause Court, which at the time of filing of the suit was Rs.25,000 was raised from Rs.25,000 to Rs.1 lakh w.e.f 7.12.2015 vide the U.P. Civil Laws (Amendment) Act, 2015. The Additional District Judge to whom the suit was transferred eaerlier on the ground that pecuniary jurisdiction of the suit is more than Rs.25,000 i.e. Rs.27,775/- proceeded to decide the suit vide his judgment and order dated 22.10.2016 and the suit for eviction, rent and compensation was decreed.

3. Aggrieved against the judgment of the Additional District Judge, revision under Section 25 of the Provincial Small Cause Courts Act, 1887 was filed by the tenant (respondents to this appeal). One of the grounds taken in the revision was that after the enactment of the U.P.Civil Laws (Amendment) Act, 2015, the Court of the Additional District Judge ceased to have any jurisdiction to try the suit between lessor and lessee of a value up to Rs.1 lakh. The assumption subsequent thereto of the jurisdiction by the Additional District Judge is without jurisdiction.

4. Some other grounds were also taken for challenging the judgment dated 22.10.2016. The High Court vide its impugned judgment dated 7.12.2016 allowed the small cause court revision taking a view that the order passed by the Additional District Judge was without jurisdiction in view of the U.P. Civil Laws (Amendment) Act, 2015 w.e.f 7.12.2015, after which date, such cae of valuation of Rs.27,775/- could have been decided by the Civil Judge (Senior Division) working as the Judge, Small Causes Court. The High Court relied on the earlier judgment of the High Court in Shobhit Nigam v. Batulan decided on 29.08.2016. The High Court remanded back the revision for a fresh decision by the Small Cause Court presided over by a Civil Judge (Senior Division). The landlord aggrieved by the said judgment has come up in this appeal.”

12. While answering the query, the Apex Court held that the Additional District Judge was not competent to decide the small causes Suit in question on the ground that the pecuniary jurisdiction is vested in the court of small causes i.e Civil Judge (Senior Division) w.e.f 07.12.2015.

13. In Kairali Aviation Pvt. Ltd., Bangalore v. Cochin International Airport Ltd.'s case (supra) this Court considered transfer of pending matters with reference to Section 15 of the Commercial Courts Act regarding the rider made on the basis of transfer to the effect that only those matters which have been reserved for final judgment by the court prior to the constitution of the commercial court shall not be transferred. In fact, the rider would apply only in cases where final hearing was completed and the case reserved for judgment.

14. In this matter, a report from the learned Commercial Court Judge was obtained and whereby it was reported that final hearing of C.S.No.1/2021 so far not completed.

15. During conclusion of the argument, the learned counsel for the petitioner placed a latest decision of the Apex Court reported in [(2022) 2 SCC 161], Neena Aneja & anr. v. Jai Prakash Associates Ltd. & anr., which dealt with many decisions dealing with question of jurisdiction.

16. Before addressing the said issue, it is necessary in the interest of justice to go through the relevant decisions highlighted by the learned counsel for the respondents. The learned counsel for the respondents placed a decision reported in [1953 KHC 342 : AIR 1953 SC 221 : 1953 SCR 987 : 1953 (4) STC 114], M/s.Hoosein Kasam Dada (India) Ltd. v. State of M.P & Ors. to assert the point that unless the contrary can be shown, the provision which takes away jurisdiction is itself saving the litigant's right. Another decision reported in [1957 KHC 452 : 1957 KLT SN 137 : AIR 1957 SC 540 : 1957 SCR 488 : 1957 (2) MLJ (SC) 1], Garikapapati Veeraya v. Subbiah Choudhry's case (supra) is highlighted to assert the point that vested right of appeal can be taken away only by a subsequent enactment if it so provides expressly or by necessary intendment and not otherwise. Another decision [1960 KHC 336 : 1960 KLT SC 18 : AIR 1960 SC 980 : 1960 (3) SCR 640 : 1960 (2) KLR 306], State of Bombay v. Supreme General Films Exchange Ltd. is highlighted to urge that amendment without retrospective effect cannot affect an appeal of a suit filed before amendment and the court fee payable is also according to the law in force at the date of filing the suit. Decision reported in [1997 KHC 47 : 1997 (1) KLT 264 : 1997 (1) KLJ 58 : ILR 1997 (2) Ker. 135], Usha v. Food Corporation of India, is also highlighted to buttress the point that as per Section 52 of the Kerala Court Fees and Suits Valuation Act, 1959, provision for payment of higher court fee by amendment would apply only to proceedings instituted after the amendment and not to pending proceedings instituted before the amendment. Another decision reported in [1992 KHC 46 : 1992 (1) KLT 283 : 1992 (1) KLJ 99 : 1992 (1) SCC 731 : AIR 1992 SC 1526], Sujir Keshav Nayak v. Sujir Ganesh Nayak also is highlighted in support of this contention.

17. In Neena Aneja & anr. v. Jai Prakash Associates Ltd.'s case (supra), the Apex Court harmonised Section 6 of the General Clauses Act with the amendment brought into Consumer Forums w.e.f 2019. In the said decision, the Apex Court referred many decisions starting from 1943 onwards. [AIR 1943 FC 24], Venugopala Reddiar v. Krishna Swami Reddiar, with special reference to other decisions reported in [1957 KHC 452 : 1957 KLT SN 137 : AIR 1957 SC 540 : 1957 SCR 488 : 1957 (2) MLJ(SC) 1], Garikapati Veeraya v. Subbiah Choudhry, [(1966) 3 SCR 15 : AIR 1966 SC 1499], Mohd. Idris v. Sat Narain, [(1967) 1 SCR 475 : AIR 1967 SC 1419], Manujendra Dutt v. Purnedu Prosad Roy Chowdhury, [(1975) 2 SCC 840], New India Assurance Co. Ltd. v. Shanti Misra, [(1979) 1 SCC 92], Maria Cristina De Souza Sodder v. Amria Zurana Pereira Pinto and other decisions. The facts of the case are as under:

On 18.06.2020, the appellants instituted a consumer complaint before NCDRC – NCDRC held that following the enforcement of the 2019 Act on 20.07.2020, the limits of its pecuniary jurisdiction stand enhanced from rupees one crore to rupees ten crores and the complaint instituted by the appellants is consequently not maintainable – In the present case, order of NCDRC directing the previously instituted consumer case under the 1986 Act to be filed before the appropriate forum in terms of the pecuniary limits set under the 2019 Act, set aside.

Upon the payment of an advance of Rs.3.50 lakhs on 25.11.2011 by the appellants, the respondent provisionally allotted a residential unit in a real estate project. The total consideration was fixed at Rs.56.45 lakhs and possession was intended to be conveyed within a period of 42 months from the execution of the agreement of the provisional allotment letter. The appellants stated that between December 2011 till date, they paid an amount of Rs.53.84 lakhs out of the total consideration of Rs.56.45 lakhs. On 13.6.2017 and 27.4.2020, the appellant sought a refund of the consideration together with interest at 18%. On 18.06.2020, the appellants instituted a consumer complaint before NCDRC for refund with interest. The consumer complaint was dismissed by an order dated 30.07.2020 for want of pecuniary jurisdiction. A single member Bench of NCDRC held that following the enforcement of the 2019 Act on 20.07.2020, the limits of its pecuniary jurisdiction stand enhanced from rupees one crore to rupees ten crores and the complaint instituted by the appellants is consequently not maintainable. The appellants instituted a petition seeking a review of the order. The review petition was dismissed on 5.10.2020 leading to the institution of the appeal.

On being enacted by Parliament, the Consumer Protection Act, 2019 (“the 2019 Act”) was published in the Gazette of India on 9.8.2019. By S.O. 2351(E) dated 15.07.2020, the material provisions of the 2019 Act were notified to come into force on 20.07.2020. By S.O.2421(E) dated 23.07.2020 several other provisions were brought into force, with effect from 24.07.2020.

18. While laying the law the Apex Court held as under:

In considering the myriad precedents that have interpreted the impact of a change in forum on pending proceedings and retrospectivity – a clear position of law has emerged: a change in forum lies in the realm of procedure. Accordingly, in compliance with the tenets of statutory interpretation applicable to procedural law, amendments on matters of procedure are retrospective, unless a contrary intention emerges from the statute.

A litigant's vested rights (including the right to an appeal) prior to the amendment or repeal are undoubtedly saved, in addition to substantive rights envisaged under Section 6 of the General Clauses Act. This protection does not extend to pure matters of procedure. Repeals or amendments that effect changes in forum would ordinarily affect pending proceedings, unless a contrary intention appears from the repealing or amending statute.”

19. However, while summing up the question considered by the Apex Court as to whether repeal of 1986 Act enhancing pecuniary jurisdiction of consumer forums by virtue of new enactment, ie., 2019 Act, the Apex Court held that proceedings instituted before the commencement of 2019 Act, shall continue before the consumer forums corresponding to those under the 1986 Act. The relevant observations are as under:

“Proceedings instituted before the commencement of the 2019 Act on 20-7-2020 would continue before the fora corresponding to those under the 1986 Act (the National Commission, State Commissions and District Forums) and not be transferred in terms of the pecuniary jurisdiction set for the fora established under the 2019 Act – Further, though Ss. 34, 47 and 58 of the 2019 Act indicate that the respective Consumer Forums can entertain complaints within the pecuniary limits of their jurisdiction, the mere use of the word “entertain” in defining jurisdiction is not sufficient to counteract the overwhelming legislative intention – To ensure consumer welfare and deliberately not provide for a provision for transfer of pending proceedings in the 2019 Act.

While S.6(e) of the General Clauses Act protects the pending legal proceedings for the enforcement of an accrued right from the effect of a repeal, this does not mean that the legal proceedings at a particular forum are saved from the effects from the repeal – However, there is no express language indicating that all pending cases would stand transferred to the fora created by the 2019 Act by applying its newly prescribed pecuniary limits.

20. Further it has been held that,

“something specific in terms of statutory language: either express words or words indicative of a necessary intendment would have been required for mandating the transfer of pending cases – Also, it would be difficult to attribute to Parliament, whose purpose in enacting the 2019 Act was to protect and support consumers, an intent that would lead to financial hardship, uncertainty and expense in the conduct of consumer litigation.”

21. In the decision reported in [1996 KHC 271], Kunnapadi Kalliani v. Lekharaj this Court considered the retrospective effect of an amendment to the Kerala Civil Courts Act, 1957. In the said decision, a Division Bench of this Court considered the view expressed in another Division Bench ruling reported in [1984 KLT 377], Clara v. Augustine. Then it was held that there was nothing in the amending Act of 1984 either expressly or by necessary implication taking away the right of appeal which had accrued to the appellant on his commencement of the lis. While making the amendment of 1996, the legislature had adopted the same device by merely enhancing the valuation of the subject matter from Rs.25,000/- to Rs.2 lakh. It must be taken that the legislature was aware of the legal position laid down by this Court when the same device was adopted by it later in 1984, no intention could now be attributed to the legislature that it was intended by the amendment of Section 13(1) of the Civil Courts Act to interfere with the accrued right of the litigants to appeal to this Court.

22. The learned counsel for the respondent also highlighted d

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ecision reported in Sasi v. Saudamini's case (supra) to buttress this point. However, in the latest decision of the Apex Court in Om Prakash Agarwal Since Deceased Through Legal Representatives & Ors. v. Vishan Dayal Rajpoot & anr.'s case (supra) it was categorically held that a change in forum lies in the realm of procedure. Accordingly, in compliance with the tenets of statutory iterpretation applicable to procedural law, amendments on matters of procedure are retrospective, unless a contrary intention emerges from the statute. Thus it has to be held that the amendment as per Annexure-A3, being procedural in nature, is retrospective and, therefore, the jurisdiction is governed by the new pecuniary value fixed as per Annexure-A3. 23. However, in Neena Aneja & anr. v. Jai Prakash Associates Ltd.'s case (supra), while giving quietus to the issue, the Apex Court held that proceedings instituted before commencement of the 2019 Act on 20.07.2020 would continue before the fora corresponding to those under the 1986 Act (the National Commission, State Commissions and District Commissions) and not be transferred in terms of the pecuniary jurisdiction set for the fora established under the 2019 Act. 24. Although the law is settled that Annexure-A3 amendment is procedural in nature, it has to be held that there is no express language in Annexure-A3 indicating that all pending cases to be transferred. Further, something specific in terms of statutory language, either by express words or words indicative of a necessary intendment, would have been required for mandating the transfer of pending cases. In Annexure-A3 nothing in this regard is mentioned mandating transfer of pending cases. Therefore, the pending cases as on 18.03.2022, having valuation less than Rs.10 lakh involving commercial dispute shall continue before the Commercial Courts concerned. In view of the matter, the transfer sought for on the ground of want of jurisdiction, cannot succeed. 25. In the result, this Transfer Petition stands dismissed. However, it is made clear that this Court on the administrative side can make orders regarding pending matters, since as per Annexure-A3 all the Sub Courts in the State have been notified as Commercial Courts, if such a course of action is necessary in the interest of justice and this order shall not stand as a rider in the said exercise.
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