Order 1

Order Details: Order below exhibit
Pdf Text: 1 Comm. Suit No.110/2019
MHCC010062662019
IN THE CITY CIVIL COURT AT MUMBAI.
COMMERCIAL SUIT No. 110 OF 2019
Kumar Arjandas Khemlani & Ors. } ...PLAINTIFFS
VERSUS
Bhambhani Shipping Ltd. & Ors. } ...DEFENDANTS
Mr. Rahila Memen, advocate for Plaintiff.
Mr. C. J. Doveson, advocate for Defendant Nos.1, 2, 4 & 5.
CORAM : HIS HONOUR JUDGE SHRI. N.P. TRIBHUWAN
(C.R.NO.32)
ORDER BELOW EXH.15
This is an application filed by advocate of plaintiffs for
trying this suit as a Summary Suit.
2. Heard learned counsel of both the parties. It is case of
plaintiffs that, they have given final assistance as a loan to defendants.
However, defendants have not repaid it. Hence, plaintiffs has filed this
suit for recovery of Rs.45,53,018/.
3. Advocate of defendants has filed reply at Exh.16 and
contended that this application (Exh.15) is bad in law and devoid of
any merits because it is neither accompanied by an affidavit nor
accompanied by verification clause nor it is in the form of notice of
motion with affidavit. According to defendants there is no money due
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2 Comm. Suit No.110/2019
and payable by defendants to plaintiffs. The subject matter of suit falls
under Section 2(c) of the Commercial Courts Act, therefore this suit can
not be converted as summary suit.
4. Learned counsel of plaintiffs argued that nature of
transaction between plaintiffs and defendants is not within the
definition of commercial dispute. Plaintiffs are not dealing in business
of money lending. This is single loan transaction between plaintiffs and
defendants.
5. Learned counsel of defendants argued that the present
application is for converting this suit in a summary suit and not for
converting from commercial suit to regular suit. Moreover, application
is not signed by the plaintiffs.
6. 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
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3 Comm. Suit No.110/2019
order of High Court directing Commercial Court to return the
plaint for its presentation before the appropriate court was
proper.
7. 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.
8. Considering pleading of plaint and written statement, the
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4 Comm. Suit No.110/2019
nature of transaction is not commercial transaction. There is no trading
transaction between plaintiffs and defendants. Plaintiffs are not dealing
in business of money lending. Alleged transaction is a single loan
transaction between parties. 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 for
appropriate court. Hence, I pass following order.
ORDER
Application Exh.15 allowed as under :
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”.
The parties to appear before the assigned Court on
27/07/2022.
Date : 06/07/2022.
(N.P. TRIBHUWAN)
Judge, City Civil Court,
Mumbai. C.R.No.32
Dictated on : 06/07/2022
Checked on : 06/07/2022
Signed on : 06/07/2022
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5 Comm. Suit No.110/2019
CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER”
06/07/2022 at N.S.Bakre
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 06/07/2022
Order signed by P.O. on 06/07/2022
Order uploaded on 06/07/2022
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