Interim Order 1

Order Details: Order below exhibit
Pdf Text: 1 OBE 7 in Comm. Suit 527/2021
IN THE CITY CIVIL COURT AT MUMBAI.
ORDER BELOW EXH.7
IN
COMMERCIAL SUIT No.527 OF 2021
Jagjeet Singh Ishar Singh Vijan }...PLAINTIFF
VERSUS
Shri Hemant Zaverilal Ghatalia and others }...DEFENDANTS
Shri.Kunal Damle, learned advocate for the plaintiff.
Smt. Anita Borkar for defendant No.3 present.
CORAM : HIS HONOUR JUDGE SHRI.N.P.TRIBHUWAN (C.R.NO.32)
O R A L O R D E R
(Delivered on 01/07/2022)
This is an application filed by defendant no.3 for transfer of
suit to appropriate court, not being a “Commercial Dispute”.
2. Heard learned counsel of both the parties. It is case of
plaintiff that he has purchased suit property vide deed of conveyance
dt.12/4/2017 from defendant no.1 & 2. Now defendant no.3 claims to
have title of suit property by virtue of Partnership Deed created in his
favour. There was dispute between plaintiff and defendant no.1 & 2 in
respect of consideration to be paid under deed of conveyance
dt.12/4/2017. Therefore, defendant no.1 & 2 filed suit bearing S.C. Suit
no.2133/2017 before City Civil Court, Mumbai. Present suit filed by
plaintiff for (i) declaration of ownership, (ii) declaration that deed of
partnership dt.26/12/2011 is illegal, (iii) perpetual injunction.
3. Learned counsel of defendant no.3 argued that there is no
commercial transaction between plaintiff and deft.no.3. Plaintiff was
not partner of partnership firm. As per definition of “commercial
dispute” under section 2(1)(c), the subject matter of the suit is not
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commercial dispute. Therefore, this court has no jurisdiction to try and
decide this suit.
4. Learned counsel of plaintiff argued that the subject matter
is commercial dispute and therefore, this court has jurisdiction to try
and entertain this suit.
5. On the point of “commercial dispute” in case law of
Ambalal Sarabhai Enterprises Limited Vs. K. S. Infraspace and
another :(2020) 15 SCC 585 Hon'ble Supreme Court held that,
For a dispute to be a commercial dispute under S. 2(1) (c) (vii),
the agreement between the parties must refer to immovable
property used/being used exclusively in trade or commerce. The
word “used” occurring in S.2(1)(c)(vii) denotes “actually used”
and it cannot be either “ready for use” or “likely to be used” or “to
be used”. Merely because the property is likely to be used in
relation to trade and commerce, the same cannot be a ground to
attract jurisdiction of Commercial Court. Such a wide
interpretation would defeat the object of Commercial Courts Act
with regard to speedy disposal of commercial disputes
thereunder. In present case, there was nothing on record to show
that at the time when the agreement to sell concerned came to be
executed, the property was being exclusively used in trade and
commerce so as to bring the dispute within the ambit of S. 2(1)
(c)(vii) of Commercial Courts Act. Consequently, the impugned
order of High Court directing Commercial Court to return the
plaint for its presentation before the appropriate court was
proper.
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3 OBE 7 in Comm. Suit 527/2021
6. 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.
7. Considering pleading of plaint and written statement, the
nature of transaction is not commercial transaction. There is no trading
transaction between plaintiff and defendants. 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
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4 OBE 7 in Comm. Suit 527/2021
to entertain and try this suit. Therefore, it is necessary to assign this suit
for appropriate court. Hence, I pass following order.
ORDER
i) Application Exh.7 allowed as under
ii) The Registrar Civil, City Civil Court Gr. Mumbai is directed to
assign this suit to proper court in which the suit should have
been instituted, not being a “Commercial Dispute”.
iii) The parties to appear before the assigned Court on
11/7/2022.
Date : 01/07/2022.
(N.P. Tribhuwan)
Judge, City Civil Court,
Mumbai. C.R.No.32
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Dictated on : 01/07/2022.
Checked on : 01/07/2022.
Signed on : 01/07/2022.
CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER”
01/07/2022 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 01/07/2022
Order signed by P.O. on 01/07/2022
Order uploaded on 01/07/2022
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