Final Order 1

Order Details: Notice of Motion
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MHCC010028872020 Presented on : 06032020
Registered on : 06032020
Decided on : 14102021
Duration : Y M D
01 07 08
BEFORE THE CITY CIVIL COURT, MUMBAI
( Court No.14 )
(Presided Over by S. U. Hake)
NOTICE OF MOTION/1021/2020
IN
COMMERCIAL SUIT NO.916 OF 2021
(SHORT CAUSE SUIT NO.2133 OF 2019)
1. Mrs.Mehrunnisa Qasim Shaikh
2. Mr.Aslam Qasim Shaikh
3. Mr.Mustaqeem Qasim Shaikh
No.1 to 3 Adult, Muslim, Indian
Inhabitant through their CA No.4
residing at Flat No.412, F Wing,
J.J.Colony, K.C. Marg, Near MTNL,
Bandra(W), Mumbai400 050.
4. Ms.Sumaiyya Qasim Shaikh @
Mrs.Sumaiyya Arif Patel
Adult, Muslim, Indian Inhabitant,
Occn: Housemaker,
Flat No.303, C Wing, Maklai Park,
Bandra Road, Bandra(W),
Mumbai400 050. ..Plaintiffs
Versus
1. M/s S Savla Constructions Private Ltd
Having registered office at
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C101, Innova Marathon Nexgen,
Off G.K.Marg,
Opp. Peninsula Corporate Park,
Lower Parel (W), Mumbai400 013.
2. Mr.Shailesh Mulchand Savla
3. Mr.Paresh Mulchand Savla,
Age not known
Both Directors of No.1
Having address at
C101, Innova Marathon Nexgen,
Off G.K.Marg,
Opp. Peninsula Corporate Park,
Lower Parel (W), Mumbai400 013.
4. M/s. Balaji Corporation Private Limited
Having registered office at
Plot No.1, Sewree Wadala Estate,
C.S. No.1/58 of Dadar Naigaon,
Katrak Road, Wadala,
Mumbai400 031.
5. Mr.Pankaj Dhanji Goshar
Age not known
6. Mr.Sukanraj Sagarmal Bohra
Both No.5 and 6 Director of No.4
having office at
Plot No.1, Sewree Wadala Estate,
C.S. No.1/58 of Dadar Naigaon,
Katrak Road, Wadala,
Mumbai400 031. ..Defendants
__________________________________________________________
Ld. Advocate Pawan Pandey for plaintiffs.
Ld. advocate Vikrant Shetty for defendant Nos.1 to 3
Ld. advocate Chaitra Rao for defendant Nos.4 and 5
__________________________________________________________
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ORAL ORDER
(Dated this 14th day of October,2021)
1. This Notice of Motion is taken out by defendant Nos.
1 to 3 praying for rejection of plaint and in the alternative for
return of plaint. It is submitted on behalf of defendant nos.1 to 3
that suit is for declaration that agreement dated 25/06/2006
executed between defendant no.1 and one Qasim Shaikh is valid
and subsisting. Plaintiffs prayed possession of suit shop and
arrears of an amount of Rs.1.52 lacs as a monthly compensation.
The dispute between the parties would be a commercial dispute
as provided under section 2(1)(c)(vii) of The Commercial Courts
Act, 2015(hereinafter referred to as ‘C.C. Act’). Therefore, plaint
is liable to be returned for filing in the proper forum. It is further
submitted on behalf of defendant Nos.1 to 3 that plaintiffs failed
to follow mandatory provision of Section 12A of C.C. Act and
therefore plaint is liable to be rejected as per Order VII Rule 11 of
C.P.C.
2. Notice of motion is strongly resisted by plaintiffs by
filing their reply affidavit. It is submitted on behalf of plaintiffs
that suit is for declaration about agreement dated 25/06/2006
which is in the form of understanding to rehabilitate plaintiff's
father in the shop which was allotted to him by way of alternative
accommodation. There is no trade dispute between plaintiffs and
defendants and therefore present dispute would not be a
commercial dispute as defined under Section 2(1)(c) of C.C. Act.
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By making these submissions, plaintiffs prayed to reject the notice
of motion.
3. Ld.Counsel Shri. Vikrant Shetty appearing for
defendant Nos.1 to 3 made following submissions:
(a) The agreement dated 18/12/2006 relates to
immovable property used exclusively in trade or commerce. He
has drawn attention of the Court towards agreement dated
18/12/2006 filed alongwith plaint, wherein it is mentioned that
Qasim Shaikh is the owner of the shop. Said Qasim Shaikh was
doing business in the said shop. Thus, agreement dated
18/12/2006 relates to the immovable property used exclusively
for trade or commerce.
(b) Plaintiffs are seeking specific performance of
the agreement dated 18/12/2006 and said relief can be sought
before the Commercial Court as per explanation (a) of Section
2(1)(c) of C.C. Act. He placed reliance upon the case of
Jagmohan Behl V/s State Bank of Indore,(FAO [OS] 166/2016,
date of decision 22/09/2017).
(c) Suit is filed on 28/03/2019, but, plaintiffs
have not filed Notice of Motion alongwith suit. Notice of motion
seeking interim relief is filed after eight months, therefore it can
be construed that plaintiffs were not seeking urgent reliefs at the
time of institution of suit.
(d) Compliance of Section 12A of C.C. Act is
mandatory. The suit which does not contemplates any urgent
interim relief under the C.C. Act, shall not be instituted unless the
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plaintiff exhausts the remedy of preinstitution mediation.
Plaintiffs failed to exhaust the remedy of preinstitution
mediation. Therefore, plaint is liable to be rejected as per Order
VII Rule 11 of C.P.C. It is further submitted that Sec.12A of the
C.C. Act is required to be followed before the institution of suit.
To buttress this submission, defendant Nos.1 to 3 placed reliance
upon the judgment of Hon’ble Bombay High Court in the case of
Deepak Raheja V/s Ganga Taro Vazirani,(Commercial Appeal
No.11950 of 2021, date of decision 11/10/2021).
By making all above submissions, defendant nos.1 to
3 prayed to reject the plaint in accordance with Order VII Rule 11
of C.P.C.
4. Ld. Counsel Smt. Chaitra Rao appearing for
defendant nos. 4 & 5, in addition to above submissions, advanced
following arguments:
(a) Suit is transferred from regular civil court to
commercial court, but, plaintiffs have not challenged the transfer
of suit. Thus, it can be construed that plaintiffs admit that present
dispute is a commercial dispute.
(b) Reliance is placed upon paragraph No.5 and 9
of the plaint and submitted that avernments in the plaint show
that suit property was being used for trade or commerce at the
time of execution of alleged agreement and therefore dispute
relating to said agreement would be a commercial dispute as per
Sec.2 (1)(c) (vii) of C.C. Act. To bloster up this submission, she
relied upon the case of Ambalal Sarabhai Enterprises V/s
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K.S.Infraspace LLP & Another (Civil Appeal No.7843 of 2019,
date of decision 04/10/2019)
(c) The C.C. Act came into force on 01/01/2016.
The said Act is amended and Section 12A is introduced on
03/05/2018. The rules regarding preinstitution mediation came
in force on 03/07/2018. The suit is filed on 20/03/2019. Thus,
suit is filed after introduction of mandatory provisions of pre
institution mediation and therefore without exhausting the
remedy provided under Section 12A of C.C. Act, suit is not
maintainable. Plaintiffs did not seek any urgent relief alongwith
suit. They filed application for interim relief in December 2019,
i.e. after eight months of institution of suit. Thus, suit does not
contemplate any urgent relief. Therefore, suit ought not to have
been instituted without following preinstitution mediation
provided under section 12A of C.C. Act.
5. Ld. Counsel Shri. Pawan Pandey appearing for
plaintiffs submitted that as per Section 6 of the C.C. Act,
Commercial Court shall have jurisdiction to try all suits and
applications relating to a commercial dispute of a specified value
arising out of the entire territory of the State over which it has
been vested territorial jurisdiction. Plaintiffs have valued the suit
for Rs.30,000/. The specified value of the suit is Rs.30,000/.
The specified value for commercial dispute is specified under
Section 2 (1)(i) of C.C. Act as Rs.3 lacs, therefore, commercial
Court would not be competent to try the suit. Plaintiffs in prayer
clauses (e) and (f) sought urgent reliefs, therefore, they were not
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required to exhaust remedy provided under Sec.12 A of C.C. Act.
It is further submitted that plaint cannot be rejected for non
compliance of Sec.12A. By making these submissions, plaintiffs
prayed to dismiss the notice of motion.
6. Considered the submissions advanced on both the
sides. Advocates appearing for defendant nos.1 to 3 and 4 and 5
argued at length as to how the present dispute is a commercial
dispute as provided under section 2 (1)(c) (vii) of C.C. Act. Suit
was initially registered as a Short Cause Suit, but, thereafter it is
transferred to the Commercial Court treating the dispute as the
dispute defined under Section 2 (1)(c) of C.C. Act. Therefore, the
issue raised by defendants for considering present dispute as a
commercial dispute does not survive.
7. The next challenge made by defendants is that
plaintiffs failed to follow mandatory requirement provided u/s.
12A of C.C. Act, before institution of the suit. They placed
reliance upon judgment of Deepak Raheja(cited supra). In this
case, Hon'ble Bombay High Court pleased to held that, Section
12A of the Act of 2015 is mandatory, and a commercial suit of
specified value which does not contemplate any urgent relief
under the Act of 2015, cannot not be instituted unless the plaintiff
exhausts the remedy of preinstitution mediation in accordance
with such manner and procedure as may be prescribed by rules
made by the Central Government. Considering the object and
purpose of Section 12A of being rooted in the public interest,
there is no question of it being waived by a party.
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8. From the judgment cited by defendants, it is
manifestly clear that Section 12A of C.C. Act is required to be
followed before institution of the suit. In the cited case, the
Commercial Summary Suit was filed before Commercial Division
of Hon'ble High Court. The issue was in respect of institution of
commercial dispute without following Sec.12A of C.C. Act and
Hon'ble Bombay High Court pleased to held that Sec.12A of C.C.
Act is mandatory in nature and suit cannot be instituted without
following the same. However, this Court is not dealing with the
Commercial dispute instituted without exhausting remedy of pre
institution mediation. Present suit is a suit transferred from
regular Civil Court to Commercial Court. Sec.15 of C.C. Act,
makes the provision for transfer of pending cases to Commercial
Court. Sec. 15(3) of C.C. Act provides where any suit or
application, including an application under the Arbitration and
Conciliation Act, 1996 (26 of 1996), relating to a commercial
dispute of Specified Value shall stand transferred to the
Commercial Division or Commercial court under subsection (1)
or subsection (2), the provisions of this Act shall apply to those
procedures that were not complete at the time of transfer. Thus,
as per Sec.15(3) of C.C. Act, provisions of C.C. Act would be
applicable to those procedures only that were not complete at the
time of transfer. On perusal of proceedings, it is evident that
before transfer of case, the procedure regarding institution of the
suit was complete and matter was posted for hearing on notice of
motion. Hon'ble Bombay High Court pleased to held that, Sec.12A
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of the C.C. Act is mandatory in nature, but, said procedure is not
required to be followed for the suits wherein procedure of
institution of suits is already completed before regular Civil
Courts. The conspectus of above discussion is that plaint cannot
be rejected for non compliance of Sec.12A of the C.C. Act.
Therefore, Notice of Motion is liable to be dismissed. In the
result, following order:
ORDER
1. N/M No.1021/2020 is dismissed.
2. No order as to costs.
3. N/M No.1021/2020 is disposed of accordingly.
14/10/2021 S.U.HAKE
JUDGE,
CITY CIVIL COURT,
GR.MUMBAI.
Dictated on : 14/10/2021
Transcribed on : 14/10/2021
Signed on : 21/10/2021
CERTIFIED TO BE TRUE AND CORRECT COPY OF THE
ORIGINAL SIGNED JUDGMENT/ORDER”.
21/10/21 at 01.30 pm.
Mrs.Tanushree C.Kamble
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Name of the Judge HHJ SHRI SU Hake
Date of Pronouncement of
judgment/order 14/10/21
Judgment and order signed by P.O. 21/10/21
Judgment/order uploaded on 21/10/21
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