Final Order 1

Order Details: Notice of Motion
Pdf Text: CNR No. MHCC01-002416-2020
IN THE COURT OF SESSIONS FOR GR. BOMBAY AT MUMBAI
NOTICE OF MOTION NO. 899 OF 2020
IN
COMMERCIAL SUIT NO. 157 OF 2019
Rahul Mohan Kolaskar ]
S/o- ]
1274, Janakpuri Society, ]
Gotri Road, Vadodra ]......Applicant
In the matter between :
Mettler Toledo India Private Limited ]
Through its authorized Representative- ]
Registered office at Amar Hills, Saki Vihar ]
Road, Powai, Mumbai- 400 072, India ]….Respondent No. 1
(Original Plaintiff)
V/s.
Rahul Mohan Kolaskar ]
S/o- ]
1274, Janakpuri Society, ]
Gotri Road, ]
Vadodra ]Original Defendant
Appearances:
Ld. Adv. Kinjal Patil i/b King Stubb & Kasiver for the plaintiff.
Ld. Adv. Pratiksha Agrawal for defendant.
CORAM : HIS HONOUR ADDL.SESSIONS
JUDGE SHRI. SANJAY N. YADAV
(C.R.No.32)
DATED : 04th February, 2021.
ORDER
The defendant had filed the notice of motion with prayer
for rejection of plaint as the dispute involved in the present suit is not a
commercial suit.
It is submitted that the contentions raised for the plaintiff
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in the plaint relate to loss incurred for purchase of laptop of
Rs.75,00,000/-, loss incurred as other employees of the plaintiff
company spent their 1/4th time which they put to recreate the data
delated by the defendant for a period of six months, Rs. 5,62,264.50/-.
2. The plaintiff had replied the notice of motion. It is
submitted by the plaintiff that the present suit is erroneously numbered
as commercial suit due to the clerical mistake on the part of the
concerned department of the Court. It is stated that the plaintiff never
intend to file commercial suit. It is submitted that dismissal of the suit
will be cause the loss to the plaintiff. It is submitted that notice of
motion need not considered and be rejected.
3. The definition of Commercial Dispute in Section 2 (c) of
the Commercial Court Act, 2015 reads as under:
“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
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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 commerce disputes as may be notified by the Central
Government.
4. Going by the contention in the plaint, the plaintiff appears
to seek the cost of the laptop and loss incurred for recovery of data
delated by the defendant. The contentions raised in the suit does not
prima-facie appears to be a commercial dispute. It is also the
contention of the plaintiff that the dispute is not commercial between
him and the defendant. The objection of the plaintiff is only for
rejection of the plaint.
5. Order VII Rule 10 of Code of Civil Procedure reads as
under:
“10.Return of plaint- (1)[Subject to the provisions of rule 10-A,
the plaint shall] at any stage of the suit be returned to be presented to
the Court in which the suit should have been instituted.
[Explanation- For the removal of doubts, it is hereby declared that
a Court of appeal or revision may direct, after setting aside the decree
passed in a suit, the return of the plaint, under this sub-rule.]
(2) Procedure on returning plaint- On returning a plaint the Judge shall
endorse thereon the date of its presentation and return, the name of the
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party presenting it, and a brief statement of the reasons for returning
it.’’
6. The prayer of the defendant in the notice of motion cannot
be considered. The suit cannot be dismissed on the ground that the
dispute between the plaintiff and defendant is not commercial. The
plaintiff has his right to agitate the contentions raised in the plaint
before the appropriate Court. In facts and circumstances, it would be
appropriate to return the plaint to the plaintiff for its presentation to the
Court in which the suit should have been instituted. The prayer for
dismissal of the suit cannot be considered.
In the result, following order is passed.
O R D E R
1. Notice of Motion No. 899/2020 is partly allowed.
2. The plaint be returned back to the plaintiff for its
presentation to the Court in which the suit should have been
instituted.
3. The Notice of Motion stands disposed off.
(SANJAY N. YADAV)
Additional Sessions Judge
Dt.: 04.02.2021 Gr.Bombay at Mumbai.
Dictated on : 04.02.2021
Typed on : 05.02.2021
Signed by H.H.J.on : 06.02.2021
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“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER”
06.02.2021 at 5.20 p.m.
UPLOAD DATE AND TIME
(Mrs. K.S.Bhosale)
NAME OF STENOGRAPHER
Name of the Judge HHJ SHRI S.N.Yadav
(COURT ROOM NO.32)
Date of pronouncement of
judgment/order
04.02.2021
Judgment/order signed by P.O. on 06.02.2021
Judgment/order uploaded on 06.02.2021
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