- In M/S. Kushal Ltd. v. M/S. Tirumala Technocast Pvt. Ltd, the Gujarat High Court held that in order to find out whether a dispute relating to property is a 'commercial dispute' or not under the Commercial Courts Act, 2015, what has to be checked is if the concerned property is used 'exclusively' in trade or commerce.
- A Division Bench comprising Justices NV Anjaria and Samir Dave noted that a dispute arising out of agreements relating to property used in trade and commerce exclusively would form a commercial dispute.
- In this case, the respondent plaintiff has bought a property from the petitioner-defendant through a sale deed of 2019 to be used by the latter as a warehouse for business.
- Subsequently, a Leave and License Agreement was signed between the two parties for a monthly fee which was due from the defendant.
- Thereafter, a legal notice was sent to the Defendant to pay the due amount and to return the suit property but he continued possession of the property.
- Consequently, the plaintiff filed a suit for permanent injunction.
- The petitioner-defendant contended that just because the respondent sought for recovery of an immovable property, it should not be treated as a commercial suit as it has no characteristics of one.
- The defendant relied upon Ambalal Sarabhai Enterprises Limited Vs. K. S. Infraspace LLP and Another [(2020) 15 SCC 585] to support its contentions.
- He further contended that according to Sec 2(1)(c), the premises of the immovable property should be used for trade and commerce exclusively for the suit to be termed a commercial suit.
- The Court observed that a dispute would not cease to be a commercial dispute just because it included recovery of an immovable property.
- The Court further observed that the defendant was using the concerned property as a warehouse for business purposes.
- The Ld. Court then referred to section 2(1)(c) of the 2015 Act which talks about commercial disputes and noted that even if any one of the ingredients in the sub-clauses of the section are satisfied, the dispute would be called a commercial dispute.
- The Hon'ble Court agreed with the decision of the commercial Court and held that the suit attracts the material ingredients of a commercial dispute.
- Accordingly, the appeal was dismissed.
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