# Mamta Kapoor & Anr v. Vinod Kumar Rai

- **Citation:** (2024) 5 ILRA 845
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2024-05-27
- **Case number:** Matter Under Article 227 No. 4127 of 2023
- **Bench:** Shekhar B. Saraf
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/mamta-kapoor-anr-v-vinod-kumar-rai-52006
- **Pages:** 9

## Headnote

Civil Law - Commercial Courts Act, 2015
- Section 2(1)(c)(vii) - Definition -
Commercial Dispute - Petitioners and
Respondent
entered
into
business
agreement for running Hotel - In
pursuance of this, a total amount of
Rs.30,00,000/- was to be paid by
petitioners to respondent as security -
Thereafter, the petitioners approached
electricity department for verification
of
dues
and
to
obtain
electricity
connection
-
The
Petitioners
were
informed about installation of separate
transformer for electricity supply -
Petitioners informed the Respondent,
asked to obtain necessary certification
from electricity department - Disputes
arose
between
them
-
Petitioners
approached
Commercial
Court
-
Refused, on the ground that it was not
used for trade or commerce - Impugned
order - Held, agreement between both
parties was for business operation and
management of Hotel - Disputes of
846 INDIAN LAW REPORTS ALLAHABAD SERIES
immovable properties, such as hotels,
resorts,
office
buildings,
shopping
centres, etc fall within definition of
commercial
dispute
-
As
per
Agreement, purpose was to facilitate
and manage commercial activities - The
Commercial
Court's
narrow
interpretation, overlooks the broader
commercial context of agreement, fails
to recognize commercial nature of
dispute
-
Impugned
order
was
quashed. (Para 2, 14, 16)

Petition allowed. (E-13)

List of Cases cited:

## Text

5 All. Mamta Kapoor & Anr. Vs. Vinod Kumar Rai
845
13. From a bare reading of various
paragraphs of miscellaneous application
filed under Order XXI Rule 97 C.P.C., the
only pleading is that he was given
possession with a tacit consent of the decree
holder, otherwise every transaction was
claimed between the petitioner and the
erstwhile tenant. This application has been
considered on merits and it has been held
that petitioner was required earlier under
order dated 2nd August, 2022 to produce the
necessary documents but he failed to
produce
any
document
except
an
unregistered agreement and the tax receipts.

14. The Court has categorically
recorded a finding that these documents do
not give any conclusive proof of title to
sustain possession of the petitioner so as to
entitle him to resist recovery of possession.

The court sitting in revision has
affirmed the order of the trial court and held
that the court cannot go beyond the decree
as the plea was taken that the court passing
the decree had no jurisdiction to pass it.

15. I, therefore, do not find any
error in the findings returned even by the
court sitting in revision.

16. Insofar as the judgment in the
case of Salik Ram (supra) is concerned, that
case is in the setting of different facts and,
therefore, distinguishable. It is to be borne in
mind that merely because the provisions are
there entitling a third party to resist the
recovery of possession, does not mean that
the court will embark upon an inquiry in
every case in detail. The court as a matter of
fact will have to look into the genuine case
set up and if a third party fails to lead any
evidence, this Court has no option but to
hold him such a party who would be not
entitled to any possession. Order XXI Rule
102 of C.P.C. is very much clear on the
point.

17. Thus, petition lacks merit and is,
accordingly, dismissed.
----------
(2024) 5 ILRA 845
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 27.05.2024

BEFORE

THE HON'BLE SHEKHAR B. SARAF, J.

Matter Under Article 227 No. 4127 of 2023

Mamta Kapoor & Anr. ...Petitioners
Versus
Vinod Kumar Rai ...Respondent

Counsel for the Petitioners:
Mr. Ujjawal Satsangi

Counsel for the Respondent:
---

Civil Law - Commercial Courts Act, 2015
- Section 2(1)(c)(vii) - Definition -
Commercial Dispute - Petitioners and
Respondent
entered
into
business
agreement for running Hotel - In
pursuance of this, a total amount of
Rs.30,00,000/- was to be paid by
petitioners to respondent as security -
Thereafter, the petitioners approached
electricity department for verification
of
dues
and
to
obtain
electricity
connection
-
The
Petitioners
were
informed about installation of separate
transformer for electricity supply -
Petitioners informed the Respondent,
asked to obtain necessary certification
from electricity department - Disputes
arose
between
them
-
Petitioners
approached
Commercial
Court
-
Refused, on the ground that it was not
used for trade or commerce - Impugned
order - Held, agreement between both
parties was for business operation and
management of Hotel - Disputes of
846 INDIAN LAW REPORTS ALLAHABAD SERIES
immovable properties, such as hotels,
resorts,
office
buildings,
shopping
centres, etc fall within definition of
commercial
dispute
-
As
per
Agreement, purpose was to facilitate
and manage commercial activities - The
Commercial
Court's
narrow
interpretation, overlooks the broader
commercial context of agreement, fails
to recognize commercial nature of
dispute
-
Impugned
order
was
quashed. (Para 2, 14, 16)

Petition allowed. (E-13)

List of Cases cited:

1. Ambalal Sarabhai Enterprises v KS Infraspace
LLP reported in (2020) 15 SCC 585

2. Vasu Healthcare Pvt. Ltd. Vs Gujarat Akruti
TCG Biotech Limited & 1(S) reported in 2017 SCC
OnLine Guj 724

3. Jagmohan Behl Vs St. Bank of Indore reported
in 2017 SCC OnLine Del 10706

(Delivered by Hon'ble Shekhar B. Saraf, J.)

1. The instant application under Article
227 of the Constitution of India has been
preferred by Mamta Kapoor and Anurag
Kumar Gupta (hereinafter referred to as 'the
Petitioners') against the order dated January
17, 2023 passed by the Presiding Officer,
Commercial Court, Varanasi in Misc. (Civil)
Suit No. 375/2022.

FACTS

2. I have laid down the factual
matrix of the instant lis below:

a. Petitioners and Vinod Kumar
Rai (hereinafter referred to as 'the
Respondent') entered into a business
agreement on July 7, 2022 for running,
operating and managing Hotel Niveditta,
situated at B-30/1-A-1-D, Assi, Varanasi
(hereinafter referred to as 'the Hotel').
b.
In
pursuance
of
the
aforesaid
agreement,
a
total
amount
of
Rs.30,00,000/- was to be paid by the
Petitioners to the Respondent as security
and the possession of the Hotel was to be
taken over by the Petitioners. Thereafter,
the Petitioners, approached the electricity
department for verification of dues and to
obtain appropriate electricity connection
at the Hotel. The Petitioners were
informed about the requirement of the
installation of a separate transformer at the
Hotel
for
electricity
supply.
The
Petitioners informed the Respondent about
the said requirement and asked them to
apply or obtain the necessary certification
from the electricity department.
c.
However,
disputes
and
differences arose between the parties and
the
Petitioners
approached
the
Commercial Court, Varanasi.
d.
The
Commercial
Court,
Varanasi vide order dated January 17,
2023 refused to entertain the suit filed by
the Petitioners on the ground that since the
Hotel was not being used for trade or
commerce,
the
dispute
cannot
be
considered as falling within the ambit of
Section 2(1)(c)(vii) of the Commercial
Courts Act, 2015 (hereinafter referred to
as 'the CC Act').
e. Aggrieved by the aforesaid
order dated January 17, 2023, the
Petitioners have preferred the instant
application under Article 227 of the
Constitution of India before this Court.

Contentions By The Petitioners

3. Shri Ujjawal Satsangi, learned
counsel appearing for the Petitioners has made
the following submissions before this Court:
5 All. Mamta Kapoor & Anr. Vs. Vinod Kumar Rai
847
a. A perusal of the agreement
between the parties would show that
although the nomenclature used for referring
it is "Rent Agreement" but the clauses
therein refer to a business operation and
management agreement.
b. Clause 4 of the agreement
between the parties specifies that the
Petitioners will be permitted to use the
premises of the Hotel only for running a
hotel and for no other purpose. Moreover,
Clause
18
further
clarifies
that
the
Petitioners were prohibited from keeping the
Hotel closed for over a period of 15 days. It
was further provided therein that if the
Petitioners keep the Hotel closed for more
than 15 days, then the Respondent would
have the right to take over the Hotel and only
if the Petitioners, upon notice, agree to run
the Hotel, the agreement will continue
otherwise it would be deemed that the
Petitioners are not interest in running the
Hotel and as such the agreement will be
terminated. A combined reading of all these
clauses goes on to show that though the
nomenclature used in the agreement dated
July
7, 2021
is
"tenancy/rent",
the
agreement is in the nature of operation and
management of a hotel.
c. It is apparent from the perusal of
the facts and circumstances that the dispute
in the instant case relates to a commercial
dispute under Section 2(1)(c) of the CC Act
and therefore, the Commercial Court was
required to register the suit as a proper suit
and thereafter afford an opportunity to the
Petitioners to argue on merits.
d. Rather than marking the suit as a
Commercial Suit, as warranted under law,
the Commercial Court, registered the suit as
a Misc. Civil Case, which is an anomaly, and
unrecognised under the eyes of law.
e. Commercial Court incorrectly
applied the law laid down by the Hon'ble
Supreme Court in Ambalal Sarabhai
Enterprises
-v-
KS
Infraspace
LLP
reported in (2020) 15 SCC 585 to conclude
that the Hotel was never used for trade and
commerce and therefore the suit instituted
by the Petitioners was unmaintainable.
f. A perusal of the agreement would
show that it was for the operation and
management of a hotel, along with its
equipment and assets. Therefore, evidently,
the Hotel was being used for trade and
commerce.
g. In light of the aforesaid facts, it is
expedient in the interest of justice that the
impugned order dated January 17, 2023
passed
by
the
Presiding
Officer,
Commercial Court, Varanasi in Misc. (Civil)
Suit No. 375/2022, be set aside. The
Petitioners have no other equally efficacious
and
alternative
remedy,
other
than
approaching this Court under Article 227 of
the Constitution of India.

Analysis and Conclusion

4. I have heard the learned counsel
appearing on behalf of the Petitioner and
perused the materials on record.

5. Before dealing with the instant
case on merits, this Court would like to put
on record that despite several opportunities
afforded to the Respondent, none appeared
to argue on his behalf. The fate of the
Petitioners cannot be left at the mercy of the
Respondent who does not seem to be
interested in the instant matter. The failure
on part of the Respondent suggests a
disregard for this Court's process and time.
Therefore, this Court, despite the fact that no
arguments
have
been
made
by
the
Respondent, has proceeded to adjudicate the
instant case on merits.

6. The main issue in the instant case
is that whether the Hotel was being used by
848 INDIAN LAW REPORTS ALLAHABAD SERIES
the Petitioners for trade and commerce, and
therefore, the Commercial Court erred in
dismissing the suit filed by the Petitioners.

7. Since the definition of a
commercial dispute is contained in Section
2(c) of the CC Act, I have extracted it below:

"2. Definitions.-(1) In this Act,
unless the context otherwise requires,-
***
(c) "commercial dispute" means a
dispute arising out of-
(i)
ordinary
transactions
of
merchants, bankers, financiers and traders
such as those relating to mercantile
documents, including enforcement and
interpretation of such documents;
(ii) export or import of merchandise
or services;
(iii) issues relating to admiralty and
maritime law;
(iv) transactions relating to aircraft,
aircraft engines, aircraft equipment and
helicopters, including sales, leasing and
financing of the same;
(v) carriage of goods;
(vi) construction and infrastructure
contracts, including tenders;
(vii)
agreements
relating
to
immovable property used exclusively in
trade or commerce;
(viii) franchising agreements;
(ix)
distribution
and
licensing
agreements;
(x) management and consultancy
agreements;
(xi) joint venture agreements;
(xii) shareholders agreements;
(xiii) subscription and investment
agreements pertaining to the services
industry including outsourcing services and
financial services;
(xiv)
mercantile
agency
and
mercantile usage;
(xv) partnership agreements;
(xvi)
technology
development
agreements;
(xvii) intellectual property rights
relating to registered and unregistered
trademarks, copyright, patent, design,
domain names, geographical indications
and semiconductor integrated circuits;
(xviii) agreements for sale of goods
or provision of services;
(xix) exploitation of oil and gas
reserves
or
other
natural
resources
including electromagnetic spectrum;
(xx) insurance and re-insurance;
(xxi) contracts of agency relating to
any of the above; and
(xxii)
such
other
commercial
disputes as may be notified by the Central
Government.
Explanation.-A
commercial
dispute shall not cease to be a commercial
dispute merely because-
(a) it also involves action for
recovery of immovable property or for
realisation of monies out of immovable
property given as security or involves any
other relief pertaining to immovable
property;
(b) one of the contracting parties is
the State or any of its agencies or
instrumentalities, or a private body carrying
out public functions;"
(Emphasis Added)

8.

Agreements
relating
to
immovable property used exclusively in
trade or commerce fall under the purview of
"commercial disputes" as defined by
Section 2(c)(vii) of the CC Act. This
categorization highlights the specific nature
of such agreements and their inherent
connection
to
commercial
activities.
Immovable property in this context usually
refers to land and buildings used solely for
business purposes, such as offices, factories,
5 All. Mamta Kapoor & Anr. Vs. Vinod Kumar Rai
849
warehouses,
retail
spaces,
and
other
commercial
establishments.
These
properties are distinct from residential or
mixed-use properties, emphasizing their
exclusive dedication to facilitating business
operations.

9. Commercial disputes involving
immovable property typically arise from
agreements
like lease contracts, sale
agreements, joint development agreements,
and
mortgage
arrangements.
Lease
agreements for commercial properties can
lead to disputes over rent payments, lease
renewals,
property
maintenance,
and
compliance with lease terms. For instance,
conflicts may occur if a tenant defaults on
rent or violates lease conditions, or if a
landlord fails to provide agreed-upon
services or attempts to unlawfully evict a
tenant. Similarly, sale agreements for
commercial properties can result in disputes
concerning payment terms, transfer of
property titles, and fulfilment of contractual
obligations.
Issues
such
as
misrepresentation of property conditions,
delays in possession, and breaches of
contractual terms are common points of
contention.

10. The expression "used" in
Section 2(c)(vii) of the CC Act makes it
clear that the immovable property must be
actually used or being used for the purpose
of "trade or commerce" and not "likely to be
used" or "to be used". In legal parlance,
"used" generally implies active and current
utilization rather than hypothetical or
intended future use. This interpretation
aligns with the principle that a legislation is
designed to address present conditions and
real-world
applications
rather
than
speculative scenarios. Reference in this
regard can be made to the judgment of the
Gujarat High Court in Vasu Healthcare
Private Limited -v- Gujarat Akruti TCG
Biotech Limited & 1(S) reported in 2017
SCC OnLine Guj 724. Relevant paragraph is
extracted herein:

"33. Therefore, if the dispute falls
within any of the clause 2(c) the dispute can
be said to be "commercial dispute" for
which the Commercial Court would have
jurisdiction. It is required to be noted that
before the learned Commercial Court the
original plaintiff relied upon section 2(c)(i),
2(c)(ii) and 2(c)(xx) of the Commercial
Courts
Act
only.
Learned
Counsel
appearing on behalf of the original plaintiff
has candidly admitted and/or conceded that
the case shall not fall within clause 2(c)(i);
2(c)(ii) or 2(c)(xx) of the Commercial
Courts Act. It is required to be noted that
before the learned Commercial Court it was
never the case on behalf of the original
plaintiff that case would fall within section
2(c)(vii) of the learned Commercial Court.
Despite the above we have considered on
merits whether even considering section
2(c)(vii) of the Commercial Courts Act, the
dispute between the parties can be said to be
"commercial dispute" within the definition
of section 2(c) of the Commercial Courts Act
or not? Considering section 2(c)(vii),
"commercial dispute" means a dispute
arising out of the agreements relating to
immovable property used exclusively in
trade
or
commerce.
As
observed
hereinabove, at the time of filing of the suit
and even so pleaded in the plaint, the
immovable property/plots the agreements
between the parties cannot be said to be
agreements relating to immovable property
used exclusively in trade or commerce. As
per the agreement between the party after
getting the plots on lease from the GIDC, the
same was required to be thereafter
developed by the original defendant No. 1
and after providing all infrastructural
850 INDIAN LAW REPORTS ALLAHABAD SERIES
facilities and sub-plotting it, the same is
required to be given to other persons like the
original plaintiff. It is the case on behalf of
the original plaintiff that as the original
defendant No. 1 has failed to provide any
infrastructural facilities and develop the
plots and therefore, a civil suit for specific
performance of the agreement has been
filed. There are other alternative prayers
also. Therefore, it cannot be said that the
agreement is as such relating to immovable
property used exclusively in trade or
commerce. It is the case on behalf of the
original plaintiff that as in clause (vii) of
section 2(c), the pharseology used is not
"actually used" or "being used" and
therefore, even if at present the plot is not
used and even if it is likely to be used even
in future, in that case also, section 2(c)(vii)
shall be applicable and therefore, the
Commercial Court would have jurisdiction.
The aforesaid has no substance. As per the
cardinal principle of law while interpreting
a particular statute or the provision, the
literal and strict interpretation has to be
applied. It may be noted that important
words used in the relevant provisions are
"immovable property used exclusively in
trade or commerce". If the submission on
behalf of the original plaintiff is accepted in
that case it would be adding something in
the statute which is not there in the statute,
which is not permissible. On plain reading
of the relevant clause it is clear that the
expression "used" must mean "actually
used" or "being used". If the intention of the
legislature was to expand the scope, in that
case the phraseology used would have been
different as for example, "likely to be used"
or "to be used". The word "used" denotes
"actually used" and it cannot be said to be
either "ready for use" or "likely to be
used"; or "to be used". Similar view has
been taken by the Bombay High Court
(Nagpur Bench) in the case of Dineshkumar
Gulabchand Agrawal (Supra) and it is
observed and held that the word "used"
denotes "actually used" and not merely
"ready for use". It is reported that SLP
against the said decision has been dismissed
by the Hon'ble Supreme Court."

11. The Delhi High Court in
Jagmohan Behl -v- State Bank of Indore
reported in 2017 SCC OnLine Del 10706
held that a harmonious reading of Section
2(c)(vii) of the CC Act would include all
disputes arising out of an agreement relating
to an immoveable property being used
exclusively for trade and commerce, be it a
dispute for realisation of money given in the
form of security or any other relief
pertaining to such an immoveable property.
Relevant paragraphs are extracted below:

"9. In order to appreciate the
controversy, we would first reproduce the
relevant definition clause, i.e. 2(1)(c)(vii),
as also the explanation thereto:-
"Definitions.-(1) In this Act, unless
the context otherwise requires
(c) "commercial dispute" means a
dispute arising out of-
(vii)
agreements
relating
to
immoveable property used exclusively in
trade or commerce;

Explanation.-A commercial dispute
shall not cease to be a commercial dispute
merely because-
(a) It also involves action for
recovery of immoveable property or for
realisation of monies out of immoveable
property given as security or involves any
other relief pertaining to immoveable
property;
(b) One of the contracting parties is
the State or any of its agencies or
instrumentalities, or a private body carrying
out public functions;
5 All. Mamta Kapoor & Anr. Vs. Vinod Kumar Rai
851
10. The explanation in the present
case has to be read as part and parcel of
clause (vii), for the language of the
explanation shows the purpose, and the
construction consistent with the purpose
which should be placed on the main
provision. The main provision, therefore,
has to be construed and read in the light of
the explanation and accordingly the scope
and ambit of sub-clause (vii) to clause(c),
defining
the
expression
"commercial
dispute", has to be interpreted. The
explanation harmonises and clears up any
ambiguity or doubt when it comes to
interpretation of the main provision. In S.
Sundaran Pillai v. V.R. Pattabiraman (1985)
1 SCC 591, it was observed that explanation
to a statutory provision can explain the
meaning and intendment of the provision
itself and also clear any obscurity and
vagueness to clarify and make it consistent
with the dominant object which the
explanation seems to sub-serve. It fills up
the gap. However, such explanation should
not be construed so as to take away the
statutory right with which any person under
a statute has been clothed or to set at naught
the working of the Act by becoming a
hindrance in the interpretation of the same.
11.
Clause
(c)
defines
the
"commercial dispute" in the Act to mean a
dispute arising out of different sub-clauses.
The expression "arising out of" in the
context of clause (vii) refers to an agreement
in relation to an immoveable property. The
expressions "arising out of" and "in
relation to immoveable property"1 have to
be given their natural and general contours.
These are wide and expansive expressions
and are not to be given a narrow and
restricted meaning. The expressions would
include
all
matters
relating
to
all
agreements in connection with immoveable
properties. The immoveable property should
form the dominant purpose of the agreement
out of which the dispute arises. There is
another significant stipulation in clause (vii)
relating to immoveable property, i.e., the
property should be used exclusively in trade
or commerce. The natural and grammatical
meaning of clause (vii) is that all disputes
arising out of agreements relating to
immoveable property when the immoveable
property is exclusively used for trade and
commerce would qualify as a commercial
dispute. The immoveable property must be
used exclusively for trade or business and it
is
not
material
whether
renting
of
immoveable property was the trade or
business activity carried on by the landlord.
Use of the property as for trade and business
is determinative. Properties which are not
exclusively used for trade or commerce
would be excluded
12. The explanation stipulates that a
commercial dispute shall not cease to be a
commercial dispute merely because it
involves recovery of immoveable property,
or is for realisation of money out of
immoveable property given as security or
involves any other relief pertaining to
immoveable property, and would be a
commercial dispute as defined in sub-clause
(vii) to clause (c). The expression "shall not
cease", it could be asserted, has been used
so as to not unnecessarily expand the ambit
and scope of sub-clause (vii) to clause (c),
albeit it is a clarificatory in nature. The
expression seeks to clarify that the
immoveable property should be exclusively
used in trade or commerce, and when the
said condition is satisfied, disputes arising
out of agreements relating to immoveable
property involving action for recovery of
immoveable property, realization of money
out of immoveable property given as
security or any other relief pertaining to
immoveable
property
would
be
a
commercial dispute. The expression "any
other relief pertaining to immoveable
852 INDIAN LAW REPORTS ALLAHABAD SERIES
property" is significant and wide. The
contours are broad and should not be made
otiose while reading the explanation and
sub-clause (vii) to clause (c) which defines
the expression "commercial dispute". Any
other
interpretation
would
make
the
expression "any other relief pertaining to
immoveable property" exclusively used in
trade or commerce as nugatory and
redundant.

13.
Harmonious
reading
of
the
explanation with sub-clause (vii) to clause (c)
would include all disputes arising out of
agreements relating to immoveable property
when used exclusively for trade and commerce, be
it an action for recovery of immoveable property
or realization of money given in the form of
security or any other relief pertaining to
immoveable property."

12. In Ambalal Sarabhai (supra), the
Hon'ble Supreme Court propounded that a
dispute relating to an immovable property if it
falls under Section 2(1)(c)(vii) of the CC Act,
would qualify as a commercial dispute. Relevant
paragraph is extracted below:

"37. A dispute relating to immovable
property per se may not be a commercial dispute.
But it becomes a commercial dispute, if it falls
under sub-clause (vii) of Section 2(1)(c) of the Act
viz. "the agreements relating to immovable
property used exclusively in trade or commerce".
The words "used exclusively in trade or
commerce" are to be interpreted purposefully.
The word "used" denotes "actually used" and it
cannot be either "ready for use" or "likely to be
used" or "to be used". It should be "actually
used". Such a wide interpretation would defeat
the objects of the Act and the fast tracking
procedure discussed above."

13. What emerges from a reading of
the aforesaid judicial pronouncements is
that, for a dispute arising out of an
immovable property to be qualified as a
commercial dispute, following conditions
must be satisfied:-

a. For a dispute arising out of an
immovable property to be qualified as a
commercial dispute, an immovable property
must be actually used or being used for the
purpose of "trade or commerce" rather than
being merely "likely to be used" or "to be
used" This interpretation emphasizes the
necessity for active and current utilization of
the immovable property in commercial
activities. The term "used" in Section
2(c)(vii) of the CC act excludes the notion
of mere readiness or potential for future
utilization.
b. The immovable property in
question must be exclusively used for trade
or commerce. Any other incidental or noncommercial use may disqualify the dispute
from being categorized as a commercial
dispute.
c. The question that whether a
dispute arising out of an agreement relating
to an immovable property would qualify as
a commercial dispute would necessitate a
contextual analysis, and consideration of the
specific language and purpose of the
contractual provisions of the agreement in
question.
d. Commercial disputes encompass
all
relevant
disputes
arising
from
agreements relating to immovable property
exclusively used for trade and commerce.
This includes disputes for recovery of
property, realization of money, or any other
relief pertaining to commercial activities.

14. Coming to the factual matrix of
the instant case at hand, it is apparent that
the agreement between the Petitioners and
the Respondent was exclusively for the
business operation and management of the
5 All. Shri Shreee Chand Jain Vs. Rent Tribunal 13th Adj Agra & Ors.
853
Hotel, which would make any dispute
arising out of the said agreement fall within
the definition of a commercial dispute.
Disputes arising out of business operation
and management agreements of immovable
properties, such as hotels, resorts, office
buildings, shopping centres, and other
commercial real estate, fall within the
definition of a commercial dispute as
outlined in Section 2(c)(vii) of the CC Act.

15. However, the Commercial
Court, Varanasi held that the Hotel was
never "actually used" for the purposes of
trade or commercial and dismissed the suit
filed by the Petitioners. Relevant portion
from the impugned order dated January 17,
2023 passed by the Commercial Court,
Varanasi is extracted herein:

"mijksDr foospuk ls Li"V gksrk gS fd okfnuh }kjk
izLrqr okn esa mYysf[kr ifjlj la[;k mijksDr gksVy
dk lapkyu okf.kfT;d fo|qr dh vkiwfrZ u gksus ds
dkj.k O;kikj o okf.kfT;d :i ls okLrfod iz;ksx dHkh
ugha fd;k x;k rFkk ekuuh; mPpre U;k;ky; }kjk
Ambalal Sarabhai Enterprises Limited ds vUrxZr
lqLFkkfir fof/k O;oLFkk ds vuqlkj okfnuh }kjk izLrqr
okn tks izdh.kZ flfoy okn la[;k 375@2022 ds :i
esa ntZ gS dh lquokbZ dk {ks=kf/kdkj okf.kfT;d U;k;ky;
okjk.klh dks izkIr ugha gS rFkk okfnuh dk mijksDr
izdh.kZ flfoy okn rFkk mlds lkFk layXu okn i=
vLohdkj fd;s tkus ;ksX; gSA
vkns'k
izdh.kZ flfoy okn la[;k 375@2022 eerk diwj o
vU; cuke fouksn dqekj jk; okf.kfT;d U;k;ky; dks
lquokbZ dk {ks=kf/kdkj u gksus ds dkj.k vLohdkj fd;k
tkrk gSA dk;kZy; dks funsZf'kr fd;k tkrk gS fd og
okfnuh dh lEiw.kZ i=koyh fu;ekuqlkj okfnuh vFkok
mlds vf/kd`r O;fDr dks okil izkIr djk;sA"

16. A perusal of the factual matrix
of the instant case would show that the
Commercial Court, Varanasi was not
justified in dismissing the suit filed by the
Petitioners which would warrant the
exercise of this Court's powers under Article
227 of the Constitution of India. The Hotel
was actually being used for trade and
commerce, and the agreement between the
parties was for the purpose of business
management and operations exclusively. It
is evident from the nature of the agreement
that the primary purpose was to facilitate
and manage commercial activities related to
the Hotel. Therefore, the argument that the
Hotel was not "actually used" for trade or
commerce lacks merit, as the very purpose
of the agreement was to engage in
commercial
activities
related
to
the
operation of the Hotel. The Commercial
Court's narrow interpretation overlooks the
broader
commercial
context
of
the
agreement and fails to recognize the
commercial nature of the dispute.

17. Accordingly, the impugned
order dated January 17, 2023 is quashed and
set aside with a direction upon the
Commercial Court, Varanasi to hear the suit
filed
by
the
Petitioner
on
merits,
expeditiously and preferably, within a
period of 6 months from the date of receipt
of a certified copy of this order.

18. With the above directions, the
instant application is allowed. There shall be
no order as to the costs.
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(2024) 5 ILRA 853
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 22.05.2024

BEFORE

THE HON'BLE NEERAJ TIWARI, J.

Matter Under Article 227 No. 6277 of 2024

Shri Shree Chand Jain ...Petitioner
Versus
Rent Tribunal13th Adj Agra & Ors.
 ...Respondents