Interim Order 1

Order Details: Order below exhibit
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IN THE COURT OF CITY CIVIL COURT AT GREATER BOMBAY
ORDER BELOW EXHIBIT-06
IN
SUMMARY SUIT NO. 238 OF 2018
(CNR NO. MHCC01-000526-2018)
Mr. Chittaranjan H. Malakar …Plaintiff
V/s.
M/s. Midas Construction & Ors. ...Defendants.
Coram : Dr. Shri S.D. Tawshikar
(Court No. 61)
Date : 02-02-2023
Appearance:
Ld. Adv. Mr. Abhaysingh A. Shinde for plaintiff.
Ld. Adv. Rajesh Singh for defendants.
ORDER
By way of present application, defendants pray to
transfer the present suit to the Commercial Court.
2. The application is objected by the plaintiff by way of
reply at Exh.6A.
3. Heard both the side.
4. Mr. Rajesh Singh, learned advocate for the defendants
submits that the suit is filed for recovery of certain amount out of
a commercial transaction. In view of section 15 of the Commercial
Courts Act, 2015, (“CC Act” for short) the subject matter is
squarely covered under section 2(c) i.e. ‘commercial dispute’, and
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therefore suit needs to be tried by the Designated Commercial
Court.
5.
Per contra, Mr. Abhay Shinde, Ld advocate for plaintiff
concedes on the point that the nature of the dispute may be of
‘commercial dispute’ as defined under the Commercial Act,
however as defendants failed to make such application at earliest
possible opportunity, at this belated stage, when Summons for
Judgment is ready for hearing, the application may not be
considered. He places reliance on Rule 231 of Bombay High Court
Practice Note, which reads as under-
“ 231. Transfer of summary suits to Commercial List- At
the hearing of a Summons for Judgment in a Summary
suit, the Judge may, if he grants leave to the defendant
to defend, transfer the suit to the list of Commercial
Causes.”
He ultimately submits that if the Court at all comes to the
conclusion that the matter needs to be transferred to the
Commercial Court, same shall be done after deciding the pending
Summons for Judgment.
6. In reply, Ld advocate for defendant submits that the
practice notes issued under of High Court Original Side cannot be
made applicable to the City Civil Court. He submitted that in view
of mandate of Section 15 of CC Act, the matter cannot be heard by
this Court and same needs to be transferred to the Commercial
Court.
7. After hearing both the sides, it can be gathered that
the dispute raised by the plaintiff being ‘a commercial dispute’, is
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amenable to the jurisdiction of the Commercial Court established
under the CC Act. So far as the contention of the defendants that
first this Court must decide the Summons for Judgment and
thereafter to transferred the suit is concerned, same cannot be
accepted simply because there is no such binding rule which
requires hearing of Summons for Judgment by the Civil Court
before transferring suit. The Bombay High Court Practice notes are
not applicable to this court.
8. It is needless to say that the Commercial Courts are
also competent to try and decide pending Summons for Judgment.
Therefore, in view of section 15 of the CC Act, I find this to be a fit
case to transfer to the Designated Commercial Court having the
jurisdiction. Hence, the order.
ORDER
1. Application (Exh.6) is allowed and thereby the matter is
transferred to the Commercial Court.
2. The Registrar (Civil) of this Court to do needful to place the
matter before appropriate Commercial Court at earliest.
3. The parties to appear before the Commercial Court on
09-03-2023.
4. Ld. advocate for plaintiff undertakes to intimate the
defendants about the Court number where the matter
would be transferred.
(Dr. S. D. Tawshikar)
Judge, City Civil Court, Gr. Mumbai.
Dated:02-02-2023 Court Room No.61
Dictated on : 02-02-2023
Transcribed on : 03-02-2023
Signed on : 04-02-2023
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“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER”
UPLOAD DATE AND TIME NAME OF STENOGRAPHER
04-02-2023 at 5.30p.m. Mrs. V. V. Malgaonkar
Name of the Judge
(with Court Room No.)
Dr. S.D. Tawshikar
C.R. No.61
Date of Pronouncement of JUDGMENT/
ORDER
02-02-2023
JUDGMENT/ORDER signed by P. O. on 04-02-2023
JUDGMENT/ORDER uploaded on 04-02-2023
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