Final Order 1

Order Details: Notice of Motion
Pdf Text: 1 Order in NM No. 584/2020
in Sum Suit No.9762/1999
MHCC010015062020
IN THE COURT OF JUDGE, CITY CIVIL COURT
AT GREATER BOMBAY
NOTICE OF MOTION NO. 584 OF 2020
IN
SUMMARY SUIT NO. 9762 OF 1999
Taranjit Singh S/o. Santok ...Plaintiff
Versus
Vijay Prabhakar Joshi ...Defendant
Appearance :
Ld advocate Mr. Mohan Tekavde for plaintiff.
Ld advocate Mr. Chaitanya Chavhan for defendant.
Coram : DR. S. D. TAWSHIKAR
C. R. NO : 61
Heard on : 14/03/2023.
Decided on : 14/03/2023
ORDER
(Dictated and pronounced in open Court)
Defendant sole has taken out present Notice of Motion with
following two prayers-
(a) that this Hon’ble Court may please to dismiss the above suit
as a summary suit and transfer the above suit as a commercial
cause and give appropriation directions in that behalf;
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(b) that pending hearing and final disposal of the present
notice of motion and further proceedings in the above summary
suit be stay on such terms and conditions as to this Hon’ble
Court may deem fit and proper.
2. The Notice of Motion is strongly objected by the plaintiff by
filing affidavit-in-reply.
3. Heard both the sides.
4. Ld advocate Mr. Chavhan for the defendant/applicant
submits that plaintiff has filed present suit for recovery of certain
amount out of alleged transaction of immovable property between the
plaintiff and defendant. He submits that in view of section 15 of
Commercial Court Act r/w. Section 2, 1(a) (c), transaction
per se is the
commercial dispute and therefore suit needs to be transferred to the
Commercial Court. He further submits that though the defendant
admittedly failed to file written statement, however, that would not bar
the defendant to file the present NM seeking transfer of the suit to
Commercial Court.
5. Mr. Chavan, vehemently submits that Section 19 of the
Commercial Court, Commercial Division and Commercial Appellate
Division of High Courts (Amendment) Act 2018 (“Amendment Act” for
short) cannot be applicable to the present suit, as section 19 starts the
order “
save as otherwise provided...”. He further submits that section 19
of the Amendment Act would not over ride section 15 of the
Commercial Courts Act, 2015. (“CC Act” for short). He thus submits
that the suit is covered under the definition of Commercial dispute
needs to be transferred to the Commercial Court.
6. Per contra, Mr. Tekavade, Ld advocate for plaintiff submits
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that the suit is of year 1999. The Hon’ble Bombay High Court vide order
dated 15-10-2008 had granted unconditional leave to defend, however,
still defendant failed to file written statement. Therefore, suit proceeded
without written statement. He further points out that defendant had
filed Notice of Motion No.452 of 2014 for condonation of delay of 4
years in filing written statement. By pointing out order dated
17-11-2015 Ld. advocate for the plaintiff submits that this Court
pleased to reject the Notice of Motion. He further points out that the
said order was challenged before the Hon’ble High Court by way of Writ
Petition No.4778 of 2016. The Hon’ble Bombay High Court by order
dated 14-06-2019 pleased to dismiss the Writ Petition. The order of
High Court was further carried to the Hon’ble Apex Court by way of
Petitions (s) for Special Leave to Appeal (c) No(s). 22369 of 2019. The
Hon’ble Apex Court also pleased to dismiss the petition and thus order
passed by this Court to proceed suit without WS, is confirmed.
7. Ld advocate for the plaintiff further submits that from the
very prayer of Notice of Motion, it can be gathered that this is one more
attempt on the part of defendant to stall the proceedings. He further
submits that in view of Section 19 of Amendment Act of 2018, the
present suit cannot be transferred to the Commercial Court. He, thus
ultimately prays to reject the Notice of Motion.
8. Ld advocate for the defendant by relying on the judgment
of the Hon’ble Apex Court in the case of Anant Gopal Sheorey V/s. State
of Bombay, 1959 SCR 919, submits that the amendment regarding
increase of specified value from one crore to three lakhs, being a
procedural in nature would apply retrospectively. Thus, he submits that
the amendment would be applicable retrospectively from the date of
commencement of Commercial Courts Act.
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in Sum Suit No.9762/1999
9. I have carefully considered the submissions advanced by
both the sides. It needs to be noted that the suit is pending since 1999.
Defendant, though permitted to file written statement, failed to file the
same and thus suit proceeded without written statement. In view of Sub
Rule 6(b) of Rule 3 of Order XXXVII of CPC, there can hardly any
participation/audience to the defendant, once the case proceeded
without written statement.
10. It needs to be noted that in view of earlier order passed by
the Hon’ble Principle Judge of this Court dated 07-07-2022 in Summary
Suit No. 7487/2001, this court had called upon report from the Asst.
Registrar of Board Department regarding Conversion of Summary Suit
into Commercial Summary Category. In response to the same, the Asstt.
Registrar, Board Department have filed their report. It is reported that in
view of Section 19 of the Amendment Act, 2018, the provisions of
Amendment Act would not be applicable to the suit filed prior to the
Amendment Act i.e. suit filed prior to 03-05-2018.
11. I have gone through Section 15 of the Act as well as
Section 19 of the Amendment Act 2018. Section 19 specifically provides
that, “
Save as otherwise provided, the provisions of this Act shall apply
only to cases relating to commercial disputes filed on or after the date
of commencement of this Act.”
12. Bare reading of Section 19 clarifies that the provision of
Amendment Act shall apply to cases relating to Commercial dispute
filed on or after the date of commencement of this act. Therefore, it can
be gathered that the amendment of enhancement of specified value
from three lakhs to one crore, would therefore not applicable to the suit
which are filed prior to enforcement of the Amendment Act 2018. As
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in Sum Suit No.9762/1999
there is express provision excluding retrospective operation of
amendment Act, submission of Ld. advocate for defendant about
retrospective effect cannot be accepted. In view of Section 19 of the
Amendment Act 2018, the authority relied upon by the Ld advocate for
defendant would not be applicable, in matter in hand.
13. In view of the above, I find that Notice of Motion lacks
merit and it needs to be rejected. Hence, the order.
ORDER
Notice of Motion No. 584 of 2020 is hereby stands rejected,
(Dr. S. D. Tawshikar)
Judge, City Civil Court, Gr. Mumbai
Date-14-03-2023 Court Room No.61
Dictated on : 14-03-2023
Transcribed on : 18-03-2023
Signed on : 23-03-2023
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in Sum Suit No.9762/1999
“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER”
UPLOAD DATE AND TIME NAME OF STENOGRAPHER
23-03-2023 at 5.55p.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
14-03-2023
JUDGMENT/ORDER signed by P. O. on 23-03-2023
JUDGMENT/ORDER uploaded on 23-03-2023
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in Sum Suit No.9762/1999
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