Interim Order 1

Order Details: Other
Pdf Text: 1 Order on Pre. Issue in
Comm. Suit 837 of 2021
MHCC010018542019
IN THE CITY CIVIL COURT AT MUMBAI.
(Court Room No.32)
ORDER ON PRELIMINARY ISSUE
IN
COMMERCIAL SUIT No.837 OF 2021
Mrs. Divya Bala Parmar …PLAINTIFF
VERSUS
Shree Ashokkumar Manibhai Patel & Co. …DEFENDANT
Shri.Priyanshu Mishra i/b. Manindra Pandey, Learned advocate
of plaintiff.
Shri.P.M. Bhatt, learned advocates for defendant.
CORAM : JUDGE SHRI. N.P. TRIBHUWAN
ORDER ON PRELIMINARY ISSUE
(Delivered on 31/03/2023)
This court has framed issues at Exh.33 on 11/01/2023. The
Issue No.5 treated as a preliminary issue, which is reproduced as under.
Whether the subject matter of the suit is “Commercial
Dispute” defined under Section 2(1)(c) of the Commercial
Courts Act 2015 ?”
2. Advocate of plaintiff has filed written argument at Exh.34
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and contended that plaintiff has filed the present suit in the category of
summary suit under Order 37 of CPC but it came to be converted into
the category of Commercial Suit. As per definition of “Commercial
Dispute” under Section 2(1)(c) of Commercial Courts Act the subject
matter of the present suit comes under the category of ordinary
transaction of the merchants, bankers, financiers and traders such as
those relating to mercantile document including enforcement and
interpretation of such document. The said loan was taken by defendant
for trade purpose. He relied on the case law of Ladymoon Towers
Private Limited Vs. Mahendra Investment Advisors Private Limited
(CS 99/2020) decided by Hon’ble Calcutta High Court on 13/08/2021,
wherein held, commercial purpose would generally mean a transaction
by which a person’s commercial or economic interests may be advanced
and would result in an economic benefit to that person. It would not
include an agreement where pocket making is an incidental outcome of
the transaction or may happen by accident.
3. Ld counsel of plaintiff also relied on case law of M/s.
Ashok Commercial Enterprises and another Vs. Rajesh Jugraj
Madhani : WP No.10573/2022, dt.31/01/2023, BOM.HC. However,
this case law is not on the point of “Commercial Dispute” under Section
2(1)(c) of the CCA.
4. In the present suit plaintiff come with a case that her
husband had lent sum of Rs.13,78,000/ to defendant in his lifetime.
Defendant has given four different “on demand promissory notes”
towards the repayment of the aforesaid amount. The said promissory
notes were issued in the name of plaintiff and her husband. Therefore,
after death of husband of plaintiff, she is entitled for the said amount.
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Comm. Suit 837 of 2021
5. Hon’ble Bombay High Court in case law of Glasswood
Realty Pvt. Ltd. and others .v/s. Chandravilas Kailashkumar Kothari
: 2021 SCC Online Bom 5032 : (2022) 1 Bom CR 527, held
9. The disputes which are in the nature of ordinary transactions
of merchants, business, financers and traders will fall within the
purview of ‘commercial disputes’, and particularly those relating
to merchantile documents. Thus, it covers the ordinary/normal
transactions carried out by the entities mentioned in the said
clause and the term ‘merchant’ would cover a person who buy
and trade, in any commodity and therefore, the term as explained
correspond to all sort of traders, buyers and sellers. A trader is,
necessarily a person who engages himself in trading in goods;
buying and selling them at profit and the word ‘trader’ has
received a liberal interpretation with passage of time, being not
only one who sell goods substantially in the form in which they
are bought, but it would also cover a member of stock exchange,
who buy and sell securities on the exchange floor or one who
buys and sells commodities and commodity futures for others, in
anticipation of speculative profit. A ‘financer’ as per Oxford
Dictionary is an administrator, collector of taxes or one who
isskilled in levying and managing public money or as a capitalist
concerned in financial operations. The aforesaid is an indicator
that the goal of a financier is to secure ample revenue.
17. In the wake of the above, the impugned order which take a
view that the transaction of advancing the amount as a friendly
loan is commercial in nature, is an erroneous finding as a solitary
transaction of advancing loan, on friendly terms, unlike a
commercial lending with the prevailing market rate, would fall
short or ordinary transaction of a financer, banker. Moreso, even
the plaintiff is conscious of this position and in her response to
the Application filed for return of plaint for presentation of
appropriate court, she admit so.
6. Considering pleading of plaint and written statement, the
nature of transaction is not commercial dispute. There is no trading
transaction between plaintiff and defendant. According to plaintiff, he
has advanced loan mentioned in para supra. Plaintiff is not dealing in
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Comm. Suit 837 of 2021
business of money lending. Thus, it seems that there is single loan
transaction and it is not commercial transaction within the meaning of
definition under Section 2 (1) (c) of the Commercial Courts Act, 2015.
Thus, in view of aforesaid case law and facts of present case, this suit
does not come under the definition of commercial dispute. Hence, this
court has no jurisdiction to entertain and try this suit. Therefore, it is
necessary to assign this suit to appropriate court. Hence, I pass
following order.
ORDER
i) The Registrar Civil, City Civil Court Gr. Mumbai is directed to
convert and assign this suit to proper court in which the suit
should have been instituted, not being a “Commercial
Dispute”.
ii) The parties to appear before the assigned Court on
28/4/2023.
Date : 31/03/2023.
(N.P. Tribhuwan)
Judge, City Civil Court,
Mumbai. C.R.No.32.
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Comm. Suit 837 of 2021
Dictated on : 31/03/2023.
Checked on : 31/03/2023.
Signed on : 31/03/2023.
CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER”
31/03/2023. Mrs.Rupali S. Bhor
UPLOAD DATE AND TIME NAME OF STENOGRAPHER
Name of the Judge(with CR
No.)
HHJ SHRI. N. P. TRIBHUVAN
(C.R.No.32)
Date of pronouncement of Order 31/03/2023.
Order signed by P.O. on 31/03/2023.
Order uploaded on 31/03/2023.
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